U.S. v. Castillo-Marin, No. 10-10549 (7-3-12) (Timlin, D.J., with Fisher. Concurrence by Rawlinson), decision available here.

When it comes to a categorical analysis of a prior conviction, looking solely to the PSR won't cut it. The 9th vacates a +16 adjustment in a reentry case, under plain error, when the court relied just on the PSR's description of the offense, and whether it met the COV definition. Looking at the underlying state conviction (New York Penal Code 120.10(4)) for Attempted Assault Second Degree, the 9th concludes that it is overbroad to categorically say it is a COV because of a lack of intent to injure. On remand, the government can seek to introduce judicially cognizable pleadings or colloquies that could prove a COV. Concurring, Rawlinson states that precedent compels the remand, and she is not joining the opinion's alternative basis, which was the wrong citing of the definition of a COV by the PSR. She felt that the PSR subsequently correctly cited the statute.


.