Appeal from the judgment of the United States District Court for the Southern District of New York (Jones, J.), sentencing Defendant-Appellant Santos Gamez principally to thirty months imprisonment and three years of supervised release following his January 10, 2007 guilty plea to illegally reentering the United States after deportation for an aggravated felony, in violation of 8 U.S.C. § 1326(a). We hold that criminal possession of a weapon in the second degree, in violation of N.Y. Penal Law § 265.03, is not a crime of violence for the purposes of Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). We vacate the sentence and remand to the district court for resentencing.
Argued: September 23, 2008
Decided: December 5, 2008
BEFORE: WESLEY, HALL and GIBSON, Circuit Judges.*fn2
Defendant-Appellant Santos Gamez ("Gamez") appeals from the district court judgment sentencing him to thirty months imprisonment, three years of supervised release and an assessment of $100, following his January 10, 2007 guilty plea to illegally reentering the United States after deportation for an aggravated felony, in violation of 8 U.S.C. § 1326(a). Gamez was convicted in 2000 in state court of a violation of N.Y. Penal Law § 265.03 for possessing, without authorization, a loaded .32 caliber firearm and four live rounds of ammunition.
On appeal,*fn3 Gamez argues that the district court erred when it increased his base offense level by sixteen levels, pursuant to the United States Sentencing Guidelines ("Guidelines") § 2L1.2(b)(1)(A)(ii), after determining that his prior New York State felony conviction was a "crime of violence." According to Gamez, a "crime of violence," as defined in the Commentary accompanying the Guidelines' § 2L1.2(b)(1), requires that the offense of which he was previously convicted have as an element the "use, attempted use, or threatened use of physical force" and that it cannot encompass an offense for which the element related to physical force requires only proof of intent to use it. We agree, and for the reasons that follow we vacate the sentence and remand for resentencing.
On January 20, 2007, Gamez, a Honduran citizen, pleaded guilty to unlawful re-entry to the United States after deportation in violation of 8 U.S.C. § 1326(a). Gamez had been removed from the United States in August 2003 because in June 2000 he had pleaded guilty to criminal possession of a weapon in the second degree in violation of N.Y. Penal Law § 265.03 which constituted an aggravated felony, a removable offense under the Immigration and Nationality Act. According to the Presentence Report ("PSR"), prepared by the Probation Office in connection with Gamez's illegal re-entry conviction, which incorporated facts from the state presentence report prepared in connection with Gamez's 2000 guilty plea to the state offense, Gamez was arrested in 1998 after shooting one person in the face and one in the stomach. When he was arrested, Gamez was carrying a loaded .32 caliber firearm, which contained four live rounds of ammunition. He pleaded guilty to a violation of N.Y. Penal Law § 265.03 and was sentenced to forty-two months imprisonment. In August 2003, Gamez was transferred into the custody of the Immigration and Customs Enforcement and removed to Honduras. Gamez later returned to the United States and was charged with unlawfully reentering the United States, to which he pleaded guilty and was sentenced to thirty months imprisonment.
According to the PSR prepared for the unlawful re-entry conviction at issue, under U.S.S.G. § 2L1.2(a), Gamez's base offense level was eight. Concluding that Gamez's prior criminal possession of a weapon conviction was for a "crime of violence," the PSR recommended a sixteen-level increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). It also recommended a three-level decrease for acceptance of responsibility based on Gamez's plea of guilty to the unlawful re-entry charge. The resulting total offense level was twenty-one. The parties voiced no objections to the facts contained in the PSR, and the court determined it was undisputed that Gamez's total offense level was twenty-one. While the PSR indicated that*fn4 Gamez's criminal history was seven points, placing him in criminal history category IV, the district court determined that the PSR was ambiguous about whether Gamez's illegal re-entry crime was committed less than two years after he was released from imprisonment on his 2000 conviction and computed Gamez's criminal history at six points, thus placing him in criminal history category III. With a total offense level of twenty-one and criminal history category III, Gamez's Guidelines range was forty-six to fifty-seven months imprisonment.
At the sentencing hearing, the district court adopted the facts from the PSR and concluded, after considering the Guidelines range and the factors under 18 U.S.C. § 3553(a), that a non-Guidelines sentence was appropriate. The district court found it significant that the defendant returned to the United States to work, rather than to obtain money through criminal activity, and the court credited Gamez's statement that he would not return illegally to the United States in the future. It imposed a thirty-month sentence of imprisonment, sixteen months below the low end of the applicable Guidelines range.
We review de novo the district court's interpretation of the Guidelines regarding whether a particular crime is a "crime of violence." See United States v. ...