US v. Moreno-Hernandez

No. 03-30387 (2-18-05). The 9th grapples with what is, or is not, a felony that is a crime of violence under 2L1.2(b)(1)(A)(ii). Here, under Oregon law, a 4th degree assault is normally a class A misdemeanor EXCEPT when it is done in the presence of a victim's minor child, when it can be punished by up to 5 years in prison. The question becomes whether this enhancement is considered in determining whether the underlying offense is a felony. Defendant argues that precedent, notably Pimental-Flores, 339 F.3d 959 (9th Cir. 2003) and Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002)(en banc), should preclude enhancements such as this, because it lies outside the base offense. The gov't counters that such an argument would transform most offenses to their lesser included elements, which are misdemeanors. The 9th was unwilling to venture down that path, drawing the line "where the sentencing factor is based on the circumstances of the crime itself." Recidivist statutes, based on prior criminal records, are not considered, but the facts in the offense that lead to a bump are. In this case, Blakely does not make a difference because it concerns the maximum of the sentence on the books. However the case is remanded anyway in light of Booker.