UNITED STATES of America, Plaintiff-Appellee, v. Israel GOMEZ-ALVAREZ, Defendant-Appellant, 201 F. App'x 466

MEMORANDUM The parties agree that the crime of false imprisonment under Cal.Penal Code § 236 is not a categorical crime of violence under U.S.S.G. § 2L1.2(b)(l)(A)(ii). See United States v. Hernandez-Hernandez, 431 F.3d 1212, 1217 n. 5 (9th Cir.2005). Therefore, the district court plainly erred in relying solely on the facts recited in the presentence report to determine that Gomez-Alvarez’s conviction for false imprisonment under CaLPenal Code § 236 constituted a crime of violence, rather than using the modified categorical approach articulated in Taylor v.

United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Hernandez-Hernandez, 431 F.3d at 1217. Because “there is a plausible prospect that [Gomez-Alvarez’s sentence] might have been different” had the district court engaged in a ... modified categorical analysis to determine whether his false imprisonment conviction constituted a crime of violence, we vacate Gomez-Alvarez’s sentence and remand for resentencing on an open record. See United States v. Pimen tel-Flores, 339 F.3d 959, 968-69 (9th Cir. 2003). SENTENCE VACATED AND REMANDED FOR RESENTENCING.

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