Booker Remand for Reentry Defendant Given 16-Level COV Enhancement for Colo. 3rd-Degree Misd.

U.S. v. Hernandez-Garduno, -- F.3d --, 2006 WL 2391401 (10th Cir. 8/21/06) - The three defendants were convicted of illegal reentry. The government appealed the district court's refusal to apply the 16-level crime of violence enhancement to two defendants with prior Colorado misdemeanor third-degree assault convictions. A third defendant in the same boat did receive the 16-level enhancement and the gov't conceded Booker error with respect to his sentence, which the district court characterized as "terribly unfair." First of all, deportation does not render gov't appeals moot. The COA rejects the argument that the Colorado priors had to meet the definition of an aggravated felony to be considered felony crimes of violence. Under the GLs, the definition of "felony" for purposes of the 16-level crime of violence enhancement is any offense punishable by more than one year of imprisonment and Colorado law provides for a term of imprisonment of up to 18 months for third-degree assault. All three cases are remanded for resentencing. The district court is instructed to review court documents pertaining to the prior convictions of the two defendants who did not get the enhancements to see whether they fall within the crime of violence definition.