Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding D.C. No. 2:10-CR-94-JCM-PAL
The opinion of the court was delivered by: Timlin, District Judge
Submitted August 30, 2011*fn1 San Francisco, California
Before: Raymond C. Fisher and Johnnie B. Rawlinson, Circuit Judges, and Robert J. Timlin, District Judge.*fn2
Opinion by Judge Timlin; Concurrence by Judge Rawlinson
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 committed 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.
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."*fn3
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. § 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 Castillo-Marin 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 Castillo-Marin to 46 months imprisonment, a sentence which factored in the 16-level enhancement for a crime of violence. This timely appeal followed.
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 the district court proceedings." United States v. Olano, 507 U.S. 725, 734 (1993).*fn4
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)).
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.").
 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. Corona-Sanchez, 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, 1237-38 (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 objections 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 Castillo-Marin's prior offense to determine that Castillo-Marin had been convicted of a crime of violence, it plainly erred.*fn5 , *fn6
 The district court also committed plain error to the 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' ...