USA v. Urbano Castillo-Marin

Filing

FILED OPINION (RAYMOND C. FISHER, JOHNNIE B. RAWLINSON and ROBERT J. TIMLIN) VACATED; REMANDED. Judge: RCF Concurring, Judge: RJT Authoring. FILED AND ENTERED JUDGMENT. [8235721]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
URBANO CASTILLO-MARIN,
Defendant-Appellant.





No. 10-10549
D.C. No.
2:10-CR-94JCM-PAL
OPINION

Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted August 30, 2011*
San Francisco, California
Filed July 3, 2012
Before: Raymond C. Fisher and Johnnie B. Rawlinson,
Circuit Judges, and Robert J. Timlin, District Judge.**
Opinion by Judge Timlin;
Concurrence by Judge Rawlinson

*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Robert J. Timlin, United States District Judge for the
Central District of California, sitting by designation.

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UNITED STATES v. CASTILLO-MARIN

COUNSEL
Rene L. Valladares, Acting Federal Public Defender; Brenda
Weksler, Assistant Federal Public Defender, Las Vegas,
Nevada, for the appellant.
Daniel G. Bogden, United States Attorney; Robert Ellman,
Appellate Chief; Adam M. Flake, Assistant United States
Attorney, Las Vegas, Nevada, for the appellee.

OPINION
TIMLIN, District Judge:
Defendant Urbano Castillo-Marin (“Castillo-Marin”)
appeals the sentence imposed following his guilty plea to
being a deported alien found in the United States in violation
of 8 U.S.C. § 1326. In particular, Castillo-Marin challenges
the district court’s application of U.S. Sentencing Guidelines
(U.S.S.G.) § 2L1.2(b)(1)(A)(ii), which imposes a 16-level
enhancement where a defendant has previously committed a
crime of violence. He contends that the district court commit-

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ted plain error by relying solely on the PSR’s characterization
of his prior conviction. For the reasons set forth below, we
vacate the sentence and remand for resentencing.
I.

BACKGROUND

On February 5, 2010, Castillo-Marin, a citizen of Mexico,
was arrested by officers of the Las Vegas Metropolitan Police
Department for driving while intoxicated. Agents of the
Immigration and Customs Enforcement subsequently arrested
him, and on March 3, 2010, Castillo-Marin was indicted and
charged with willfully being unlawfully in this country in violation of 8 U.S.C. § 1326(a) after being previously arrested
and deported, removed, and/or excluded. He pled guilty to the
one count indictment without a plea agreement.
A Presentence Investigation Report (“PSR”) was prepared
in anticipation of the sentencing hearing. The PSR calculated
the base offense level at 8 pursuant to U.S.S.G. § 2L1.2(a),
but recommended a 3-level reduction for acceptance of
responsibility and a 16-level enhancement for his prior deportation after a felony conviction for a crime of violence according to Section 2L1.2(b)(1)(A). The PSR stated that the
enhancement was based on Castillo-Marin’s prior conviction
for “Attempted Assault 2nd Degree (Felony, 120.10-110),
Supreme Court of New York, Queens County, Case No.
98Q991614.”1
It also provided the following narrative: “According to the
charging document, the defendant stabbed a male with a knife
five times (two in the chest, two to the shoulder area, and one
to the left side). The victim remained in critical condition for
five days.” Based on this information, the PSR concluded:
“This is a Crime of Violence as defined under 8 U.S.C.
1

The parties agree that the PSR’s reference to attempted assault in the
second degree is an error and that Castillo-Marin was actually convicted
of assault in the first degree.

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§ 1101(a)(43).” Applying a criminal history category of III to
the total offense level of 21, the U.S. Probation Office arrived
at a Guideline sentencing range of 46 to 57 months imprisonment and recommended that the court sentence Castillo-Marin
to 51 months.
The government requested a sentence of 46 months. The
defense made no objection, either in writing or at the sentencing hearing itself, to the PSR’s characterization of the prior
conviction as a “crime of violence” for sentencing purposes.
Rather, Castillo-Marin’s counsel made other arguments pursuant to 18 U.S.C. § 3553(a) that Castillo-Marin’s sentence
should be reduced below the low end of the Guideline range,
including his contention that the application of the 16-level
enhancement produced a Guideline sentencing range “which
overstates the seriousness of Mr. Castillo’s unlawful re-entry
offense and criminal record.” He further argued that CastilloMarin only had two removals and one felony which was a
“few years old” and requested a sentence below the Guideline
range at 37 months.
The district court stated at sentencing that he was “taking
[the government’s] recommendation” and sentenced CastilloMarin to 46 months imprisonment, a sentence which factored
in the 16-level enhancement for a crime of violence. This
timely appeal followed.
II.

STANDARD OF REVIEW

Under the plain error standard of review, the appellant must
show that the district court made (1) an error (2) that was
clear or obvious, (3) that affected substantial rights, and (4)
that seriously affected the fairness, integrity or public reputation of judicial proceedings. See United States v. Johnson, 626
F.3d 1085, 1088 (9th Cir. 2010). For an error to have affected
substantial rights, “in most cases it means that the error must
have been prejudicial: It must have affected the outcome of

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the district court proceedings.” United States v. Olano, 507
U.S. 725, 734 (1993).2
III.

DISCUSSION

To determine whether a conviction qualifies as a crime of
violence under U.S.S.G. § 2L1.2, courts apply the approach
set forth in Taylor v. United States, 495 U.S. 575, 602 (1990).
Under that approach, courts first consider whether a prior
offense “is categorically a crime of violence by assessing
whether the full range of conduct covered by [the statute] falls
within the meaning of that term.” United States v. Grajeda,
581 F.3d 1186, 1189 (9th Cir. 2009) (internal quotation marks
omitted) (alteration in original). If the statute of conviction is
overbroad — that is, if it punishes some conduct that qualifies
as a crime of violence and some conduct that does not — it
does not categorically constitute a crime of violence. See id.
In that case, courts apply the “modified categorical approach”
to determine whether the record of conviction shows that the
defendant “was convicted of the elements of the generically
defined crime.” Id. (quoting United States v. Vidal, 504 F.3d
1072, 1077 (9th Cir. 2007) (en banc)). Under the modified
categorical approach, courts may “rely[ ] only on documents
that give [it] the ‘certainty of a generic finding,’ including
‘the statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.’ ” United States v. Aguila-Montes de Oca, 655 F.3d 915,
937 (9th Cir. 2011) (en banc) (citations omitted) (quoting
Shepard v. United States, 544 U.S. 13, 16, 23 n.4 (2005)).
2
We need not decide whether to exercise our “discretion to refrain from
applying the default plain error standard of review” and instead review de
novo. United States v. Gonzalez-Aparacio, 663 F.3d 419, 426 (9th Cir.
2011). Castillo-Marin concedes that the plain error standard applies. Furthermore, reversal is warranted here whether we review for plain error or
de novo. Cf. United States v. Pimentel-Flores, 339 F.3d 959, 967 n.10 (9th
Cir. 2003).

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A.
In his opening brief, Castillo-Marin argued that reversal is
warranted because the district court’s reliance on the presentencing investigation report’s (PSR) characterization of
Castillo-Marin’s prior offense as a “crime of violence” satisfied the four prongs of the plain error standard. In its answering brief, the government did not contest that the first two
prongs are satisfied — i.e., that the district court committed
an error that was clear or obvious — and, thus, concedes the
argument. See United States v. McEnry, 659 F.3d 893, 902
(9th Cir. 2011) (when the government does not make argument that “was available at the time it filed its answering brief
. . . [it] has waived that argument”); see also Smith v. Marsh,
194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments
not raised by a party in its opening brief are deemed
waived.”).
[1] Even if the government had argued that the district
court did not commit obvious error by relying on the PSR’s
factual description and characterization of Castillo-Marin’s
prior offense, we would disagree. Our precedent is clear that
a district court may not rely on a PSR’s factual description of
a prior offense to determine whether the defendant was convicted of a crime of violence, notwithstanding the defendant’s
failure to object to the PSR. See, e.g, United States v. CoronaSanchez, 291 F.3d 1201, 1212, 1214 (9th Cir. 2002) (en banc)
(“A presentence report reciting the facts of the crime is insufficient evidence to establish that the defendant pled guilty to
the elements of the generic definition of a crime when the
statute of conviction is broader than the generic definition,”
even though the defendant “did not object to the PSR’s recitation.”) (citing United States v. Franklin, 235 F.3d 1165, 1172
(9th Cir. 2000); United States v. Potter, 895 F.2d 1231, 123738 (9th Cir. 1990)); Gonzales-Aparicio, 663 F.3d at 432-33
(observing that “a sentencing court may not turn to the PSR
for a narrative description of the underlying facts of the prior
conviction,” notwithstanding that the defense made no objec-

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tions to the PSR); see also United States v. Chavaria-Angel,
323 F.3d 1172, 1176 (9th Cir. 2003) (observing that “in this
circuit, district courts may not rely exclusively on . . . the presentence report as evidence of a prior conviction”). Indeed,
we have held on multiple occasions that a district court commits plain error when it “relie[s] solely on the facts recited in
the PSR.” United States v. Rendon-Duarte, 490 F.3d 1142,
1146 (9th Cir. 2007); United States v. Pimentel Flores, 339
F.3d 959, 968 (9th Cir. 2003). Thus, to the extent the district
court relied on the PSR’s factual description of CastilloMarin’s prior offense to determine that Castillo-Marin had
been convicted of a crime of violence, it plainly erred.3, 4
[2] The district court also committed plain error to the
3

This is not a case in which the district court’s reliance on the PSR
might be excused because the PSR’s narrative was based on another
acceptable source. Cf. Gonzalez-Aparicio, 663 F.3d at 433 (holding that it
was not plain error for the district court to rely on the PSR’s narrative that
was based on court records that are acceptable under Shepard). Here, the
PSR’s description, by its own terms was based only on the charging document for Castillo-Marin’s conviction. It is well established that
“[c]harging papers alone are never sufficient” to determine the character
of a defendant’s prior conviction. Corona-Sanchez, 291 F.3d at 1211.
4
Many of our sister circuits have also found that the district court commits reversible error when it relies on a PSR’s factual description of a
prior defense, notwithstanding the defendant’s failure to object to the PSR.
See, e.g., United States v. Davila-Felix, 667 F.3d 47, 57 (1st Cir. 2011)
(holding that the district court erred by relying on “the facts as recounted
in the presentence investigation report” despite the fact that the defendant
“should have — but did not — object to the analysis in the presentence
report”); United States v. Boykin, 669 F.3d 467, 472 (4th Cir. 2012) (holding that “it was plain error for the district court to use the PSR’s recitation
of the facts . . . without having first satisfied itself that the PSR bore “ ‘the
earmarks of derivation from Shepard-approved sources.’ ”); United States
v. McCann, 613 F.3d 486, 502 (5th Cir. 2010) (“When a court . . . relies
on the PSR alone, it makes an error that is clear and obvious.”); United
States v. Thomas, 630 F.3d 1055 (8th Cir. 2011) (holding that it was procedural error for the district court to “base[ ] its ruling that [the defendant’s] escape conviction was a crime of violence on the undisputed
factual allegations in the PSR”).

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extent that it based its sentence on the probation officer’s
characterization of Castillo-Marin’s prior offense as a crime
of violence. Such reliance on the PSR amounts to plain error
for two independent reasons. First, we have recognized that a
district court may not base a sentence enhancement on the
PSR’s characterization of a prior offense as a qualifying
offense. In United States v. Matthews, 278 F.3d 880 (9th Cir.
2002) (en banc), a district court adopted the PSR’s recommendation that the defendant be sentenced as an Armed
Career Criminal based on his prior burglary conviction. See
278 F.3d at 883. Reviewing de novo, we held that “the district
court erred in sentencing [the defendant] as an Armed Career
Criminal because it failed to analyze the statutes under which
[the defendant] was previously convicted to determine
whether they satisfied the elements of a ‘generic burglary’
under Taylor.” Id. at 884; see also id. at 885 (“The district
court did not . . . analyze the statutes of conviction to determine whether the Taylor standard was in fact met, as Taylor
directs the court to do.” (citing Taylor, 495 U.S. at 602)).
In Pimentel-Flores, we applied Matthews under plain error
review. There, the PSR stated that the defendant “had a prior
conviction for ‘assault in violation of a court order, a felony,
in Franklin County Superior Court, Pasco Washington, Case
No. 98-1-50371-1’ ” and concluded that the defendant’s conviction qualified as a crime of violence. 339 F.3d at 961.
Relying solely on the PSR’s characterization of the offense,
the district court enhanced the defendant’s sentence. See id. at
961. Applying the plain error standard, we vacated the sentence and remanded. We observed first that the government
had not satisfied its burden under Taylor because it had not
provided the statute of the defendant’s prior conviction. Id. at
968. Second, we explained:
We can understand the frustration of district judges
who sentence a defendant on a record to which no
objection was made only to have to later revisit the
matter because the government failed to do its job.

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Relying solely on the factual description in the PSR,
however, was plain error.
Id. at 968; see also Potter, 895 F.2d at 1238 (insisting that the
sentencing court examine the statutes under which the defendant was convicted for purposes of determining what counts
as a qualifying felony).
Here, as in Matthews and Pimentel-Flores, the district court
based its sentencing on the PSR’s characterization of CastilloMarin’s prior offense as a crime of violence. By doing so, it
plainly erred.5
The second, independent reason that the district court’s
5

One fact that distinguishes this case from Matthews and PimentelFlores is that, here, the PSR contains a reference to the statute of CastilloMarin’s prior conviction. The PSR listed as the defendant’s conviction:
“Attempted Assault 2nd Degree (Felony, 120.10-110).” Even assuming
the district court understood “Felony, 120.10-110” to be a reference to
New York Penal Law § 120.10, it is undisputed that the district court
never analyzed the statutory provision under Taylor and, instead, simply
took the PSR’s characterization at face value.
In United States v. Garza-Lopez, 410 F.3d 269 (5th Cir. 2005), the Fifth
Circuit held that there was plain error in virtually identical circumstances.
There, the PSR recommended an enhancement on the basis that the defendant had committed a prior “drug trafficking offense.” Id. at 271. “The
PSR stated that the basis for [the defendant’s] enhancement was [his] 2001
conviction under Cal. Health & Safety Code § 11379(a)” and provided a
factual narrative of the defendant’s offense. Id. at 271, 273. The defendant
did not object to the PSR’s characterization of his offense, and the district
court applied a sixteen-point enhancement on that basis. See id. at 271.
The Fifth Circuit vacated the sentence, holding that the district court committed plain error. See id. at 274-75; see also United States v. McCann,
613 F.3d 486, 502 (5th Cir. 2010) (When “[i]t is uncontested that the district court relied solely on [a] PSR . . . the district court plainly erred.”);
United States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006) (per
curiam) (holding that the district court commits clear and obvious error
when it relies on the PSR’s characterization of the defendant’s prior
offense as a crime of violence, without an independent determination of
whether the conviction was in fact a crime of violence).

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reliance on the PSR’s characterization was plain error is that
the PSR itself applied the wrong definition of “crime of violence.” The PSR recommended that the district court enhance
Castillo-Marin’s sentence under U.S.S.G. § 2L1.2(b)(1)(A) on
the basis that Castillo-Marin’s prior conviction was “a Crime
of Violence as defined under 8 U.S.C. § 1101(a)(43).” Section
1101(a)(43), a section of the Aliens and Nationality code,
defines the term “aggravated felony” for purposes of determining what is a deportable offense, and to fix criminal penalties for reentry after commission of an “aggravated felony.”
Section 1101(a)(43) lists “crime of violence” as one offense
that qualifies as an aggravated felony. See § 1101(a)(43)(F)
(“a crime of violence (as defined in section 16 of Title 18, but
not including a purely political offense) for which the term of
imprisonment [is] at least one year”). We have repeatedly recognized, however, “that § 1101(a)(43)’s definition of ‘crime
of violence’ is materially different from the definition of
‘crime of violence’ in § 2L1.2(b)(1)(A)(ii).” United States v.
Rodriguez-Guzman, 506 F.3d 738, 741-42 (9th Cir. 2007); see
also Pimentel-Flores, 339 F.3d at 963-64 (“Although the
phrase ‘crime of violence’ appears in both [§ 1101(a)(43)(F)]
and [U.S.S.G. § 2L1.2], the . . . guideline takes care to include
its own definition. Significantly, the guideline definition is
different from the statutory definition of that phrase. Each
definition works well within its respective regime.”). Indeed,
if Castillo-Marin had previously been convicted of a crime of
violence under § 1101(a)(43)(F), as the PSR states, he would
be subject to only an eight-level enhancement under
§ 2L1.2(b)(1)(C), not the 16-point enhancement that the district court imposed. See U.S.S.G. § 2L1.2(b)(1)(C) & cmt. 3
(imposing an eight-level enhancement for an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)).
[3] A district court commits an obvious error when it “uses
an incorrect guideline to impose the 16 level enhancement” in
§ 2L1.2(b)(1)(A). United States v. Benitez-Perez, 367 F.3d
1200, 1205 (9th Cir. 2004) (holding that “there was error and

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the error was clear” when the district court incorrectly
imposed a 16-level enhancement under § 2L1.2(b)(1)(A) on
the basis that the defendant has committed an aggravated felony under 8 U.S.C. § 1101(a)(43)).6
B.
[4] Having found that the district court committed clear
and obvious error, we must consider whether the error
affected Castillo-Marin’s substantial rights and “seriously
affected the fairness, integrity or public reputation of judicial
proceedings.” Johnson, 626 F.3d at 1088. We conclude that
both factors are met.
Castillo-Marin argued in his opening brief that, had the district court properly analyzed the statute of his prior conviction
under Taylor, it would have found that the statute was overbroad and, thus, he was not necessarily convicted of a crime
of violence. The government, again, did not contest this argument and, thus, apparently concedes it. In any event, we agree
with Castillo-Marin that his prior conviction is not categorically a crime of violence.
Pursuant to Taylor’s categorical approach, courts cannot
examine the underlying facts of the prior offense, but may
“look only to the fact of conviction and the statutory defini6

Our concurring colleague would hold that there was no plain error here
because, in calculating Castillo-Marin’s total offense level, the PSR stated,
“Specific Offense Characteristic: The defendant was deported after a felony conviction for a crime of violence. Sixteen-levels are added pursuant
to U.S.S.G. § 2L1.2(b)(1)(A).” Concurring Op. at 7820. We disagree. To
be sure, there is no question that the PSR recommended a sixteen-point
enhancement under § 2L1.2(b)(1)(A). The issue, however, is whether the
PSR applied the correct definition of crime of violence — found in
§ 2L1.2, Application Note 1(B)(iii) — to determine that the enhancement
was warranted. The PSR explicitly states its conclusion that CastilloMarin’s prior offense “is a Crime of Violence as defined under 8 U.S.C.
§ 1101(a)(43).” Thus, we have no trouble concluding that the PSR applied
the wrong definition.

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tion of the prior offense.” Taylor, 495 U.S. at 602; AguilaMontes de Oca, 655 F.3d at 920. The conviction qualifies “if
and only if the full range of conduct covered by [the statute]
falls within the meaning of that term.” United States v. Juvenile Female, 566 F.3d 943, 946 (9th Cir. 2009). “[E]ven the
least egregious conduct the statute covers must qualify.”
United States v. Lopez-Solis, 447 F.3d 1201, 1206 (9th Cir.
2006) (citation omitted).
The PSR states that Castillo-Marin was convicted under
New York Penal Law § 120.10. At the time of CastilloMarin’s prior conviction, Section 120.10 provided:
A person is guilty of assault in the first degree when:
1. With intent to cause serious physical injury to
another person, he causes such injury to such person
or to a third person by means of a deadly weapon or
a dangerous instrument; or
2. With intent to disfigure another person seriously
and permanently, or to destroy, amputate, or disable
permanently a member or organ of his body, he
causes such injury to such person or to a third person; or
3. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct
which creates a grave risk of death to another person,
and thereby causes serious physical injury to another
person; or
4. In the course of and in furtherance of the commission or attempted commission of a felony or of
immediate flight therefrom, he, or another participant if there be any, causes serious physical injury to
a person other than one of the participants.

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N.Y. Penal Law § 120.10 (1996).
[5] An offense qualifies as a “crime of violence” under
U.S.S.G. § 2L1.2(b)(1)(A)(ii) if it either (1) “ ‘has as an element the use, attempted use, or threatened use of physical
force against the person of another’ under the definition’s . . .
‘element’ prong” or (2) “constitutes one of the crimes listed
in the ‘enumerated offense’ prong of the definition.” Grajeda,
581 F.3d at 1189-90 (quoting U.S.S.G. § 2L1.2, cmt. n.
1(B)(iii) (2006)).7 We address in turn whether a conviction
under § 120.10 categorically qualifies as a crime of violence
under the element prong or the enumerated offense prong of
the Section 2L1.2 definition.
1.

Element prong

[6] “We have made clear that the force required under the
element prong of the § 2L1.2 crime of violence definition
‘must actually be violent in nature.’ ” United States v.
Espinoza-Morales, 621 F.3d 1141, 1147 (9th Cir. 2010). In
addition to requiring a certain degree of force, “a predicate
offense must [also] require intentional use, attempted use, or
threatened use of force to constitute a crime of violence under
§ 2L1.2; neither recklessness nor negligence is enough.”
United States v. Mechor-Meceno, 620 F.3d 1180, 1184 (9th
Cir. 2010).
7

The current definition provides in full:
“Crime of violence” means any of the following offenses under
federal, state, or local law: Murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as
where consent to the conduct is involuntary, incompetent, or
coerced), statutory rape, sexual abuse of a minor, robbery, arson,
extortion, extortionate extension of credit, burglary of a dwelling,
or any other offense under federal, state, or local law that has as
an element the use, attempted use, or threatened use of physical
force against the person of another.

U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii).

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[7] New York Penal Law § 120.10 is overbroad because it
does not prohibit only conduct that involves an intent to
injure. In particular, a defendant can be convicted under subsections (3) or (4) of § 120.10 without having an intent to
injure. A defendant can be convicted of first degree assault
under subsection (3) if serious physical injury occurs while he
“recklessly engages in conduct which creates a grave risk of
death to another person,” whether or not he has an intent to
injure. N.Y. Penal Law § 120.10(3).
[8] Furthermore, a defendant can be convicted under subsection (4) if serious physical injury occurs “[i]n the course of
and in furtherance of the commission or attempted commission of a felony or of immediate flight therefrom.” Id.
§ 120.10(4). As the Second Circuit has observed, subsection
(4) “replaces the intent to injure requirement traditionally
associated with the crime of assault with the intent to commit
the underlying felony.” Langston v. Smith, 630 F.3d 310, 315
(2d Cir. 2001).8 Thus, a defendant can also be convicted of
first degree assault under subsection (4) without having an
intent to injure. As a result, a conviction under § 120.10 does
not qualify as a crime of violence under the element prong of
§ 2L1.2.9
8

In determining the categorical reach of a state crime, this court “considers not only the language of the state statute, but also the interpretation
of the language in judicial opinions.” Ortega-Mendez v. Gonzales, 450
F.3d 1010, 1016 (9th Cir. 2006).
9
That Castillo-Marin was convicted of attempted first-degree assault
does not change the outcome. To be sure, New York law generally
requires that the defendant act with a specific intent to commit the completed crime to be convicted of attempt. See People v. Campbell, 532
N.E.2d 86, 88 (1988) (“Because the very essence of a criminal attempt is
the defendant’s intention to cause the proscribed result, it follows that
there can be no attempt to commit a crime which makes the causing of a
certain result criminal even though wholly unintended”). New York, however, permits defendants to plead guilty to legally impossible crimes,
including attempted reckless first-degree assault. See People v. Guishard,
789 N.Y.S.2d 332, 333 (N.Y. App. Div. 2005) (affirming plea conviction

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2.

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Enumerated Offense Prong

[9] An offense may also qualify as a crime of violence if
it falls within the list of offenses enumerated in U.S.S.G.
§ 2L1.2. See Grajeda, 581 F.3d at 1189-90 (citing U.S.S.G.
§ 2L1.2 Application Note 1(B)(iii)). To determine whether the
defendant’s conviction falls within one of the enumerated
offenses, we compare the statutory definition of the crime of
conviction with the generic definition of the enumerated
offense. See United States v. Velasquez-Reyes, 427 F.3d 1227,
1229 (9th Cir. 2005). Here, the closest enumerated offense is
“aggravated assault,” and, thus, we consider whether CastilloMarin’s conviction fits within the generic definition of that
crime.10
to attempted assault in the first degree although the crime was a “legal
impossibility”); see also Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010)
(observing that a defendant could plead guilty to attempted first-degree
assault under § 120.10(3) or (4) because “[a]lthough New York law recognizes attempt liability only for crimes that involve a mens rea of specific
intent — as opposed to crimes of recklessness and crimes with no mens
rea element such as felony assault — New York courts permit convictions
by plea to hypothetical or legally impossible offenses such as attempted
recklessness.”). This aspect of New York law distinguishes the present
case from United States v. Gomez-Hernandez, 2012 WL 1948889, at *45& n.4 (9th Cir. 2012) (holding that the defendant’s conviction for
attempted aggravated assault qualified as a crime of violence because,
under Arizona law, it is not possible to be convicted of attempt without
specific intent).
The PSR, which is the only document in the record discussing CastilloMarin’s attempted assault conviction, does not specify whether CastilloMarin was convicted by jury or by plea and, thus, he may have pled guilty
to merely reckless conduct. In fact, the certificate of disposition, which the
government urges us to judicially notice on appeal, states that CastilloMarin was convicted by plea.
10
The Guidelines make clear that “[p]rior convictions of offenses
counted under [Section 2L1.2] (b)(1) include offenses or . . . attempting
to commit such offenses.” U.S.S.G. § 2L1.2 cmt. n. 5. Thus, if first-degree
assault under § 120.10 is an “aggravated assault,” then Castillo-Marin’s
attempted first-degree assault conviction is a crime of violence.

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[10] In United States v. Esparza-Herrera, 557 F.3d 1019
(9th Cir. 2009), we held, based on an analysis of state laws
and the Model Penal Code, that the generic definition of “aggravated assault” requires a mens rea greater than ordinary
recklessness. Id. at 1023-25. As described above, a defendant
may be convicted of first-degree assault under § 120.10(4) for
ordinary recklessness. Castillo-Marin’s conviction, thus, does
not constitute “aggravated assault.”
[11] Because neither the element prong nor enumerated
offense prong is satisfied, Castillo-Marin’s conviction under
§ 120.10 is not categorically a crime of violence.11
C.
The government, apparently recognizing that § 120.10 is
not categorically a crime of violence, urges us to take judicial
notice of a New York criminal indictment and certificate of
disposition related to Castillo-Marin’s prior conviction, and to
apply the modified categorical approach — in the first
instance — to conclude that Castillo-Marin was in fact convicted of a crime of violence. We decline to do so.
“First, we rarely take judicial notice of facts presented for
the first time on appeal.” Reina-Rodriguez v. United States,
655 F.3d 1182, 1193 (9th Cir. 2011). “Second, we take judicial notice of a fact only if it is ‘not subject to reasonable dispute.’ ” Id. (citing Fed. R. Evid. 201(b)).
Here, the certificate of disposition states: “DEFENDANT
WAS CONVICTED OF . . . PL 110-120.10 01 CF.” According to the government, the reference to “01” establishes that
11

We need not consider whether Castillo-Marin’s conviction would
qualify as a crime of violence under 8 U.S.C. § 1101(a)(43)(F), which
defines “crime of violence” by reference to 8 U.S.C. § 16. As we discuss
above, that definition of crime of violence differs from U.S.S.G. § 2L1.2’s
definition. See Rodriguez-Guzman, 506 F.3d at 741-42.

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Castillo-Marin was convicted under subsection (1) of New
York Penal Law § 120.10, which both parties agree would
qualify as a crime of violence. Castillo-Marin concedes that
the “01” notation on the certificate is a reference to subsection
(1) of § 120.10. He argues, however, that the accuracy of the
certificate — i.e., whether it reflects that he was actually convicted under subsection (1) — is subject to reasonable dispute. We agree.
The Second Circuit recognized the unreliability of certificates of disposition, at least with respect to subsection notations, in United States v. Michael Green, 480 F.3d 627, 630
(2d Cir. 2007). There, the government relied on a New York
State certificate of disposition to argue that the defendant had
previously been convicted of a predicate offense. The certificate stated: “DEFENDANT WAS CONVICTED OF . . . PL
110-220.16 01 CF.” Id. The government argued that the “01”
notation established that the defendant was convicted under
subsection (1) of New York Penal Law § 220.16 and the district court imposed a sentence enhancement on that basis. See
id. at 631.
On appeal, it was uncontested that, if the defendant in fact
had been convicted under § 220.16(1), the enhancement was
appropriate. See id. The defendant argued, however, that the
district court should not have taken the certificate of disposition at face value because it was unreliable. See id. at 631.
The Second Circuit agreed. It explained that “[w]hile a certificate of disposition constitutes ‘presumptive evidence of the
facts stated in such certificate,’ the presumption is rebuttable;
the certificate is not conclusive.” Id. at 633 (emphasis in original) (quoting N.Y. Crim. Proc. Law § 60.60(1)). The court
observed that the accuracy of certificates of disposition has
been called into question by New York state courts. See id. at
633-34 (citing People v. Jamal Green, No. 311/98, 2006 WL
3457236 (N.Y. Sup. Ct. Nov. 29, 2006)).
In Jamal Green, the central issue was whether the certificate of disposition accurately stated the subsection under

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which the defendant was convicted. The defendant argued
that he was convicted under subsection (1) of New York
Penal Law § 265.02 based on the notation in his certificate of
disposition. Id. at 634. At the defendant’s sentencing hearing,
“the state called as a witness the person responsible for data
entry in the Clerk’s Office of the Supreme Court for Queens
County.” Id. The Supreme Court of New York explained:
Court Clerk Prinz offered an explanation as to the
reason why defendant obtained a Certificate of Disposition specifying subsection one. Ms. Prinz testified that prior to the 1990’s, voted indictments such
as the one in this case, did not, as a rule, provide a
subsection. Therefore, when indictments were filed,
data entry clerks were unable to enter subsections
into computer files. If a defendant pled guilty or was
convicted by a jury, the subsection was not entered
in the computer records and as a result subsections
were not indicated in a defendant’s NYSID records.
Ms. Prinz also testified that certificates of conviction
are presently computer generated. As the current law
requires that a subsection be assigned in the records
of pertinent crimes, the computers have been programmed to indicate subsection one or “01” as the
default subsection without regard to what the proper
subsection should be.
Thus, in this case, the witness testified that no subsection was ever entered into the computer at the
time defendant pled guilty to Criminal Possession of
a Weapon in the Third Degree on October 18, 1989.
When defendant requested a certificate of disposition
in June, 2005, the certificate of disposition automatically assigned subsection one, by default, without
any person ever checking to determine if this was the
correct subsection.
Id. (quoting Jamal Green, 2006 WL 3457236, at *4).

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With this background, the Second Circuit, in Michael
Green, concluded that the certificate’s “reference to subsection (1) of § 220.16 . . . could not properly be taken at face
value.” Id. at 635. The court vacated the defendant’s sentence
and remanded to give the government an opportunity to prove
that the certificate’s reference to subsection (1) was accurate.
See id.; see also United States v. Neri-Hernandes, 504 F.3d
587, 592 (5th Cir. 2007) (adopting the Second Circuit’s reasoning in Michael Green to conclude that a certificate of disposition “is admissible” but “is not conclusive”).
[12] In light of Michael Green, Jamal Green, and NeriHernandes, whether the New York certificate of disposition’s
notation “01” accurately reflects that Castillo-Marin was convicted under subsection (1) is “subject to reasonable dispute.”
Reina-Rodriguez, 645 F.3d at 1140 (citing Fed. R. Evid.
201(b)). Therefore, we decline to take judicial notice that
Castillo-Marin was convicted under N.Y. Penal Law
§ 120.10(1).
[13] The government has also requested that we take judicial notice of the New York indictment charging CastilloMarin with first-degree assault. However, “[c]harging papers
alone are never sufficient” to establish a predicate offense
under the modified categorical approach. United States v.
Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002). Without presenting additional documents authorized under Shepard, 544 U.S. 13, the government cannot satisfy its burden to
establish “clearly and unequivocally” that Castillo-Marin’s
prior conviction qualifies as a crime of violence. United States
v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004) (quoting Corona-Sanchez, 291 F.3d at 1203).12 We thus reject the
government’s argument that Castillo-Marin’s sentence can be
12

The only other document in the record that relates to Casitllo-Marin’s
prior conviction is the PSR. As we explain above, however, the district
court could not properly rely on the PSR here.

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upheld by applying the modified categorical approach on
appeal.
[14] Based on the 16-level enhancement for committing a
prior crime of violence, the Guidelines recommended a range
of 46-57 months and Castillo-Marin was sentenced to 46
months. Absent the enhancement, the Guidelines would have
recommended a range of 0-6 months. The imposition of this
substantially greater sentence clearly affected CastilloMarin’s substantial rights and the fairness of the judicial proceedings.13
D.
[15] For the foregoing reasons, we hold that the district
court plainly erred when it sentenced Castillo-Marin. On
remand, the government will have the opportunity to submit
judicially noticeable documents to demonstrate which subsection of § 120.10 Castillo-Marin was convicted under. If the
government wishes to rely on the New York certificate of disposition, it should be required to introduce evidence establishing its accuracy.
VACATED and REMANDED.

RAWLINSON, Circuit Judge, concurring in the result:
The defense did not object at any time to the statement in
the Presentence Report (PSR) that Urbano Castillo-Marin’s
prior conviction in New York State Court was for a crime of
violence for sentencing purposes. Consequently, we review
13

Castillo-Marin also contends on appeal that the district court imposed
a procedurally and substantively unreasonable sentence in violation of 18
U.S.C. § 3553. Because we hold that the court plainly erred and remand
for resentencing, we need not address this additional claim.

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7819

for plain error. See United States v. Portillo-Mendoza, 273
F.3d 1224, 1227 (9th Cir. 2001).
Plain error occurs when a judge commits error that is so
obvious that a competent judge should be able to avoid it
without any party bringing the matter to the judge’s attention.
See United States v. Nguyen, 565 F.3d 668, 681 (9th Cir.
2009). “Reversal on the basis of plain error is an exceptional
remedy . . .” United States v. Lo, 447 F.3d 1212, 1228 (9th
Cir. 2006). “If an error is not clear or obvious from the record,
the defendant’s failure to object is fatal. . . .” United States v.
Brigham, 447 F.3d 665, 669 (9th Cir. 2006).
The facts of this case indisputably reflect that the PSR documented the commission of a prior crime of violence by
Castillo-Marin. The facts of this case also indisputably reflect
that Castillo-Marin in no way objected to the characterization
of his prior conviction as a crime of violence.
I concur in the result of the opinion because, and only
because, our precedent expressly holds that it is plain error for
a district court to rely on a presentence report (PSR) when
that report simply refers to the charging document. See United
States v. Corona-Sanchez, 291 F.3d 1201, 1211-12 (9th Cir.
2002) (en banc). I expressly decline to join the majority’s
broader application of our precedent to hold that “a district
court may not rely on a PSR’s factual description of a prior
offense to determine whether the defendant was convicted of
a crime of violence, notwithstanding the defendant’s failure to
object to the PSR.” Majority Opinion, p. 7804. Indeed, one of
the cases cited by the majority, United States v. GonzalezAparicio, 663 F.3d 419, 433 (9th Cir. 2011), approved reliance on the content of a PSR where the PSR quoted from
court records. Consequently, if the PSR prepared for CastilloMarin had followed suit, the district court would not have
committed plain error in relying on the PSR. See id.1
1

The cases cited by the majority to support its conclusion that the district court failed to adequately discuss the prior offense are readily distin-

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I expressly and unequivocally decline to join the majority’s
alternative basis for reversing the district court—that the PSR
cited to the wrong definition of “crime of violence.” Majority
Opinion, p. 7805. Although the line summarizing CastilloMarin’s criminal history referred to 8 U.S.C. § 1101(a)(43) in
describing the New York conviction, the portion of the PSR
addressing the sixteen-level enhancement under the heading
“Specific Offense Characteristic” correctly cited U.S.S.G.
§ 2L1.2(b)(1)(A). Absent objection from the defendant, and
under a plain error standard of review, we simply cannot
determine that the writer of the PSR relied on the definition
of crime of violence in 8 U.S.C. § 1101(a)(43) rather than the
definition of crime of violence in U.S.S.G. § 2L1.2(b)(1)(A).
Accordingly, I concur in the remand to the district court,
but go no further.

guishable. In United States v. Matthews, 278 F.3d 880 (9th Cir. 2001), the
defendant specifically objected to use of his prior convictions. See id. at
885. In that circumstance, we held that it was error for the district court
to fail to analyze the statutes of conviction.
In United States v. Pimentel-Flores, 339 F.3d 959, 968 (9th Cir. 2003),
we remanded for resentencing where, unlike this case, the PSR did not
“list the statute of conviction.”
Finally, in United States v. Potter, 895 F.2d 1231, 1238 (9th Cir. 1990),
we affirmed under plain error review the district court’s reliance on the
presentence report describing the prior conviction as “Rape by Force,”
even though there was no citation to the statute of conviction.