United States v. Moreno-Hernandez

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-30387 Plaintiff-Appellee, D.C. No. v.  CR-03-30012-AA ISIDRO MORENO-HERNANDEZ, ORDER AND Defendant-Appellant. AMENDED  OPINION

Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Argued and Submitted September 15, 2004—Portland, Oregon

Submission Withdrawn September 28, 2004 Resubmitted February 18, 2005

Filed February 18, 2005 Amended July 5, 2005 Second Amendment August 17, 2005

Before: J. Clifford Wallace, Ronald M. Gould, and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

10795

UNITED STATES v. MORENO-HERNANDEZ 10797

COUNSEL

Robert M. Stone, Medford, Oregon, for the defendant- appellant.

10798 UNITED STATES v. MORENO-HERNANDEZ Karin J. Immergut, United States Attorney, District of Ore- gon, and Robert G. Thomson (argued), Assistant United States Attorney, Medford, Oregon, for the plaintiff-appellee.

ORDER

The mandate issued on July 13, 2005 is recalled for the pur- pose of amending the opinion as follows:

The amended opinion filed July 5, 2005, slip op. 7773, appearing at 2005 WL 1560269 (9th Cir. July 5, 2005), is amended as follows:

1) Slip op. at 7793 (2005 WL 1560269, at *9): The first sentence of the third full paragraph, begin- ning “We conclude that a limited remand is proper in all pending direct criminal appeals involving unpreserved Booker error,” is deleted. In its place, the following sentence is inserted: “We conclude that defendants are entitled to limited remands in all pending direct criminal appeals involving unpreserved Booker error, whether constitutional or nonconstitutional.”

2) Slip op. at 7794 (2005 WL 1560269, at *9): A footnote is inserted at the end of the last sen- tence of the opinion, which begins “We will therefore remand.” The text of footnote is as fol- lows:

It is clear that the district court, under Ame- line, will have to at least consider the avail- able sentence under the now-discretionary federal Guidelines in determining whether it would have imposed a different sentence had it known the Guidelines were advisory.

UNITED STATES v. MORENO-HERNANDEZ 10799 That is why we resolve the question that was fully briefed and argued in this court concerning the applicability of the enhance- ment. By doing so, we assure that the dis- trict court will begin in this regard with the proper interpretation of the Guidelines in determining whether it would have imposed a different sentence. Cf. United States v. Baclaan, 948 F.2d 628, 630-31 (9th Cir. 1991) (per curiam) (interpreting the district court’s application of non-binding policy statements in the Guidelines).

No further petitions for rehearing or petitions for rehearing en banc shall be entertained. The mandate shall reissue forth- with.

OPINION

BERZON, Circuit Judge:

Once more, we are asked to determine whether a federal defendant’s previous state-law conviction is for a “felony that is . . . a crime of violence” under section 2L1.2(b)(1)(A)(ii) of the U.S. Sentencing Guidelines (“Guidelines”). See, e.g., United States v. Lopez-Patino, 391 F.3d 1034, 1036-38 (9th Cir. 2004) (per curiam); United States v. Contreras-Salas, 387 F.3d 1095, 1097 (9th Cir. 2004); United States v. Hernandez- Hernandez, 387 F.3d 799, 804-06 (9th Cir. 2004); United States v. Grajeda-Ramirez, 348 F.3d 1123, 1124-25 (9th Cir. 2003), cert. denied, 125 S. Ct. 863 (2005).

Under Oregon law, assault in the fourth degree (“Assault IV”), normally a “Class A misdemeanor” punishable by no more than one year in prison, is a “Class C felony” punishable by up to five years in prison when committed, inter alia, in the

10800 UNITED STATES v. MORENO-HERNANDEZ presence of the victim’s minor child. See OR. REV. STAT. § 163.160(3)(c).1 At issue in this appeal is whether the pres- ence of the victim’s minor child should be considered in ascertaining whether the Oregon statute defines a “felony” for purposes of the Guidelines.

Sentencing factors based on some aspect of the defendant’s legal history, such as recidivist sentencing enhancements, are not considered in determining whether a state-law offense is a felony. See, e.g., United States v. Pimentel-Flores, 339 F.3d 959, 967-69 (9th Cir. 2003); United States v. Corona- Sanchez, 291 F.3d 1201, 1208-11 (9th Cir. 2002) (en banc). Today, however, we decline to extend these precedents to 1 In full, section 163.160 provides: (1) A person commits the crime of assault in the fourth degree if the person: (a) Intentionally, knowingly or recklessly causes physical injury to another; or (b) With criminal negligence causes physical injury to another by means of a deadly weapon. (2) Assault in the fourth degree is a Class A misdemeanor. (3) Notwithstanding subsection (2) of this section, assault in the fourth degree is a Class C felony if the person commits the crime of assault in the fourth degree and: (a) The person has previously been convicted of assaulting the same victim; (b) The person has previously been convicted at least three times under this section or under equivalent laws of another jurisdiction and all of the assaults involved domestic violence, as defined in ORS 135.230; or (c) The assault is committed in the immediate presence of, or is witnessed by, the person’s or the victim’s minor child or stepchild or a minor child residing within the household of the person or victim. (4) For the purposes of subsection (3) of this section, an assault is witnessed if the assault is seen or directly perceived in any other manner by the child.

UNITED STATES v. MORENO-HERNANDEZ 10801 cases such as this one, where the sentencing factor is based on circumstances of the crime itself. Substantive offense-based enhancements are inseparable from the underlying offense and must be considered in determining the maximum avail- able sentence.

We therefore agree with the district court that Defendant- Appellant Isidro Moreno-Hernandez’s underlying Oregon conviction was, as far as this consideration goes, for a “felo- ny.” As Moreno-Hernandez challenges the applicability of a federal sentencing enhancement, however, we grant a limited remand pursuant to United States v. Ameline, No. 02-30326, 2005 WL 1291977 (9th Cir. June 1, 2005) (en banc).

I. Background

This appeal comes to us from Moreno-Hernandez’s third conviction for illegally reentering the United States after removal. See 8 U.S.C. § 1326. All three federal convictions occurred subsequent to a 1999 Oregon state conviction for assault in the fourth degree, for “unlawfully and intentionally caus[ing] physical injury” to Yolanda Robinson in the pres- ence of her minor child, Deanndra Wright. For that offense, Moreno-Hernandez was sentenced to sixty days in jail and three years on probation.

After pleading guilty to this most recent § 1326 charge, Moreno-Hernandez was sentenced to a term of seventy-seven months. Under the then-recently amended Guidelines,2 the district court enhanced Moreno-Hernandez’s sentence by six- teen levels, because he was deported, or unlawfully remained in the United States, after a conviction for a “felony that is . . . a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2003).3 From this sentence Moreno-Hernandez timely appeals. 2 Moreno-Hernandez was not subject to the sixteen-level enhancement on his first two convictions. The Guidelines, at those times, allowed the sixteen-level enhancement only when the underlying offense was an “ag- gravated felony.” See U.S.S.G. § 2L1.2(b)(1)(A) (2001). 3 Under U.S.S.G. § 2L1.2(b)(1)(A), the sixteen-level enhancement also applies to a conviction for a felony that is “(i) a drug trafficking offense

10802 UNITED STATES v. MORENO-HERNANDEZ II. “Felony”

The crux of Moreno-Hernandez’s argument is that we should not consider the factor that made his offense punish- able by as much as a five-year sentence — the presence of the victim’s minor child — in ascertaining whether his underlying Oregon conviction was for a “felony.”4

[1] Federal law and the Guidelines both define a felony as “any federal, state, or local offense punishable by imprison- ment for a term exceeding one year.” U.S.S.G. § 2L1.2, cmt. n.2; see also 18 U.S.C. § 3559(a). This bright-line distinction between felonies and misdemeanors, which dates back, at least in some form, to 1865, see United States v. Graham, 169 F.3d 787, 792 (3d Cir. 1999), has been repeatedly embraced as the law of our circuit, see, e.g., United States v. Robles- Rodriguez, 281 F.3d 900, 904, 906 (9th Cir. 2002); United States v. Olvera-Cervantes, 960 F.2d 101, 103-04 (9th Cir. 1992); United States v. Houston, 547 F.2d 104, 106 (9th Cir. 1976).

[2] Assault IV without the presence of the victim’s minor child carries a maximum sentence of one year in prison. See OR. REV. STAT. § 161.615. Because of the presence of the vic- tim’s minor child during the assault, Moreno-Hernandez’s offense carried a maximum sentence of five years. See id.

for which the sentence imposed exceeded 13 months; . . . (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terror- ism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense.” 4 Moreno-Hernandez challenges only whether his Assault IV conviction is a “felony.” He has not challenged whether it is a “crime of violence.” We therefore do not consider whether under the Supreme Court’s recent decision in Leocal v. Ashcroft, 125 S. Ct. 377 (2004), affirming the rea- soning of our earlier opinion in United States v. Trinidad Aquino, 259 F.3d 1140 (9th Cir. 2001), the mens rea required for an Assault IV conviction under Oregon law meets the requisites for a “crime of violence.”

UNITED STATES v. MORENO-HERNANDEZ 10803 §§ 161.605; 163.160(3)(c). Moreno-Hernandez’s underlying conviction is therefore a “felony” only if the minor child enhancement is pertinent in determining whether his convic- tion was for a “felony.” The question before us is whether it should be so considered.

A. Corona-Sanchez

In Corona-Sanchez, we considered whether the California state-law crime of petty theft committed by a previous offender was an aggravated felony under the Guidelines. The answer to that question turned on whether the crime was a “theft offense” punishable by a sentence of one year or more in prison. 291 F.3d at 1203-11. Under the California law at issue in Corona-Sanchez, the fact that the defendant was a repeat offender rendered him subject to a sentence — two years — that would have made his crime an aggravated fel- ony, even though the underlying offense, petty theft, carried only a six-month statutory maximum.

[3] Corona-Sanchez applied the categorical approach out- lined in Taylor v. United States, 495 U.S. 575 (1990), in com- bination with the distinction between substantive offenses and recidivist sentencing enhancements highlighted in Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998). Applying these concepts to the question whether Corona-Sanchez’s crime constituted an “aggravated felony,” we concluded that, in assessing whether a crime is a “theft offense” punishable by one year or more in prison, the sub- stantive offense is to be considered independently of any recidivist sentencing enhancement. Based on that analysis, Corona-Sanchez concluded that the crime of petty theft is not a “theft offense,” and therefore is not an aggravated felony for purposes of the Guidelines, even though the maximum sen- tence to which Corona-Sanchez was subject was more than one year. 291 F.3d at 1210-11.

Corona-Sanchez explained the cleaving of the recidivist enhancement from the underlying offense largely on the basis

10804 UNITED STATES v. MORENO-HERNANDEZ that the enhancement was measured by recidivism. Following the Supreme Court’s reiteration in Apprendi v. New Jersey that “recidivism does not relate to the commission of the offense,” 530 U.S. 466, 496 (2000) (citation and internal quo- tation marks omitted), the en banc court regarded petty theft as a single, substantive offense, as to which various sentenc- ing alternatives were available depending on the defendant’s past criminal history. See, e.g., Corona-Sanchez, 291 F.3d at 1209 (“This approach is consistent with the Supreme Court’s historic separation of recidivism and substantive crimes.”). Importantly, under this approach, nothing substantive about the offense determined whether the petty theft was or was not an aggravated felony. The court rejected only the argument that a characteristic of the offender’s prior history could be the reason a state crime becomes, for federal purposes, an “aggravated felony.”

Here, by contrast, the enhancement in the Oregon Assault IV statute for the presence of the victim’s minor child is not related to recidivism or any other past actions of the offender. Instead, it is the facts of the offense, not the legal history of the offender, that gives rise to the maximum available sen- tence of more than one year.

By way of example, we note that the other variants of Assault IV under Oregon law, in contrast, do mirror the enhancements at issue in Corona-Sanchez. Moreno- Hernandez was convicted of assault in the presence of the vic- tim’s minor child, see OR. REV. STAT. § 163.160(3)(c), but Assault IV is also a Class C felony if “(a) The person has pre- viously been convicted of assaulting the same victim; [or] (b) The person has previously been convicted at least three times under this section or under equivalent laws of another juris- diction and all of the assaults involved domestic violence, as defined in ORS 135.230 . . . .” Id. § 163.160(3). These two enhancements fall into the class of recidivist sentencing enhancements, like those in Corona-Sanchez. Were Moreno- Hernandez’s Assault IV conviction enhanced by one of these

UNITED STATES v. MORENO-HERNANDEZ 10805 factors, Corona-Sanchez would mandate our holding that his earlier offense was not a “felony.”

There is, however, some language in Corona-Sanchez that is not expressly limited to recidivist factors. For example, the en banc court stated in one passage that it was “[e]xamining the crime itself, rather than any sentencing enhancements,” 291 F.3d at 1209, and added elsewhere that the Guidelines “describ[e] felonies with reference to the offense, rather than separate sentencing enhancements.” Id.; see also id. at 1209- 10 (“Given the profound consequences of the [aggravated fel- ony] designation and the declared purpose of Congress to tar- get ‘serious crimes,’ it is doubtful that Congress intended to include crimes such as petty theft within the ambit of the defi- nition by virtue of state sentencing enhancements imposed for acts that themselves are not aggravated felonies.”). What the Corona-Sanchez court meant by “enhancements” is thus not absolutely clear. Cf. United States v. Buckland, 289 F.3d 558, 565-67 (9th Cir. 2002) (en banc) (suggesting that, for consti- tutional purposes, Apprendi eschews formalistic distinctions between sentencing factors and elements of a crime).

B. Pimentel-Flores

The broader reading of Corona-Sanchez, to encompass all factors that increase a sentence, is to some degree supported by our decision one year later in Pimentel-Flores, the first case in this circuit to consider the current version of § 2L1.2. Pimentel-Flores first concluded that a “crime of violence” need not be an aggravated felony under § 2L1.2. It then con- sidered whether Pimentel-Flores was subject to the 16-level enhancement based on a state-court conviction for “assault, in violation of [a] court order.” Pimentel-Flores, 339 F.3d at 967. Because the government did not provide the district court with evidence of the statute of prior conviction, as Corona- Sanchez requires, we remanded for resentencing. Id. at 967- 69.

10806 UNITED STATES v. MORENO-HERNANDEZ Pimentel-Flores went on to discuss various issues that the district court was directed to consider on remand. For instance, the court held that Taylor “applies to the determina- tion of whether a defendant’s prior offense constitutes a ‘crime of violence’ for purposes of [§ 2L1.2].” Id. at 968. More central to this case, the court also concluded that “there is a plausible prospect that the outcome might have been dif- ferent had the government [provided the statute of convic- tion],” id., because:

We have held in the past that state sentencing enhancements raising misdemeanors to felonies can- not be considered in determining whether a prior conviction is an “aggravated felony.” Instead, the court must examine the statute under which a defen- dant was convicted for his core offense. The same logic would apply to the determination of whether a defendant’s prior offense was a “felony.”

Id. at 969 (citing Corona-Sanchez, 291 F.3d at 1209-10).5 This language in Pimentel-Flores might plausibly be read as indicating that Corona-Sanchez extends to all sentencing fac- tors, not just those based on recidivism. Again, however, such an argument assumes that Corona-Sanchez, in referring to “all enhancements,” understood that it was including all non- recidivist, offense-related factors within the ambit of “en- hancements.”

The violation of a court order — the enhancement at issue in Pimentel-Flores — is similar to a recidivist factor, for it is backward-looking. Further, rather than delineating the con- 5 The court subsequently noted that “[t]hese are not clear-cut conclu- sions but only plausible possibilities to be critically assessed on remand,” Pimentel-Flores, 339 F.3d at 969. This statement seems to qualify only the paragraph in which it appears, discussing the statute proffered by Pimentel-Flores’s counsel at oral argument, not the court’s characteriza- tion of Corona-Sanchez one paragraph earlier, as quoted above.

UNITED STATES v. MORENO-HERNANDEZ 10807 duct that constituted the crime of conviction, the enhancement in Pimentel-Flores is concerned with a legal history character- istic that the offender already possessed before committing the offense in question — namely, being subject to a court order. It is thus unlikely that the less-than-clear language of Pimentel-Flores, summarizing Corona-Sanchez, was meant to go beyond the circumstances before the court in either of the two cases.6

[4] We are left, then, at something of a doctrinal impasse. Corona-Sanchez was not entirely clear as to whether it was enunciating a rule only for recidivist sentencing enhance- ments, although the basis for its holding turned largely on recidivism principles enunciated in Almendarez-Torres and Apprendi; Pimentel-Flores widened the potential confusion over Corona-Sanchez’s scope. In the abstract, then, whether Corona-Sanchez and Pimentel-Flores extend to this case may best be described as uncertain, with plausible arguments on both sides.

C. Non-Recidivist Enhancements

We are nevertheless persuaded that Corona-Sanchez and Pimentel-Flores go only so far, and no further. Otherwise, as the government argues here, “logic would prohibit use of any felony prior conviction if there was also a necessarily included misdemeanor version of the offense.” Most felonies have some misdemeanor as an element, to which other ele- ments are added. Thus, if we adopted the broader reading of our precedents, the line drawing, as the government suggests, 6 The government suggested that we are bound by the Oregon Court of Appeals’ description of the presence of a minor child “as an element of the offense” of Assault IV. See State v. Glaspey, 55 P.3d 562, 565 (Or. Ct. App. 2002). The Oregon Supreme Court, however, has since overruled the Court of Appeals’ decision in Glaspey. See State v. Glaspey, 100 P.3d 730 (Or. 2004). In any event, Corona-Sanchez, Pimentel-Flores, and Taylor all require us independently to assess the statutory scheme regardless of the state’s characterization of the offense.

10808 UNITED STATES v. MORENO-HERNANDEZ would become an impossible exercise, turning on semantic fortuities of statutory numbering or drafting.

Consider, for example, Oregon’s definition of assault in the first degree: “A person commits the crime of assault in the first degree if the person intentionally causes serious physical injury to another by means of a deadly or dangerous weapon.” OR. REV. STAT. § 163.185(1). Under Moreno-Hernandez’s logic, the facts that the assault was committed “intentionally,” that the assault resulted in serious physical injury, and that the assault was “by means of a deadly or dangerous weapon” would each be sentencing factors separate from the underly- ing offense — assault — which Oregon law defines as a mis- demeanor in a separate statutory section. See id. § 163.160(2). Taking the argument to its extreme, even homicide, which under Oregon law occurs when “without justification or excuse, [a] person intentionally, knowingly, recklessly or with criminal negligence causes the death of another human being,” id. § 163.005(1), would be a misdemeanor, since the offense could also be characterized as an assault with a num- ber of aggravating factors, only one of which is the death of the victim.

Moreno-Hernandez’s alternative position — that we should look at the structure of the state statute — is equally uncon- vincing. Under this approach, if the same statutory section included an offense and a lesser-included version thereof — as does Oregon’s Assault IV statute — then the lesser- included version would govern whether the offense defined a felony. By contrast, if another state codified simple assault without the presence of the victim’s minor child in a separate “Assault V” statute, then, under Moreno-Hernandez’s argu- ment, the same offense would be a felony for federal sentenc- ing purposes in that state, but not in Oregon. This dichotomy is untenable, and explains why we may not look to the state statutory labeling or structure in ascertaining whether the offense is a felony.

UNITED STATES v. MORENO-HERNANDEZ 10809 Put simply, Moreno-Hernandez’s argument, that we should read Corona-Sanchez and Pimentel-Flores to reach all sen- tencing factors, would necessarily require us to hold that nearly all state-law offenses are misdemeanors for federal sentencing purposes. We cannot agree with this reductio ad absurdum.

[5] Instead, we read Corona-Sanchez and Pimentel-Flores as applying only to sentencing enhancements not based directly on the facts of the offense of conviction.7 When legis- latures have chosen to demarcate sentences based on specific characteristics of the offense itself rather than on some aspect of the offender’s legal history, we believe that the Corona- Sanchez “core offense” concept does not apply, and that the entire sentence, including its offense-based aggravating char- acteristics, must be factored into our determination of whether or not it is a “felony.”

[6] Because we do not consider Moreno-Hernandez’s Assault IV conviction separately from the aggravating factor, and because Assault IV in the presence of the victim’s minor child carries a maximum sentence of five years’ imprison- ment, we conclude that the statutory maximum sentence for Moreno-Hernandez’s offense of conviction under Oregon law is five years in prison.

III. Blakely and Rios-Beltran

At oral argument and in supplemental briefing ordered by the court, Moreno-Hernandez advanced an argument purport- 7 To clarify our holding, we mean to speak only to offenses that incorpo- rate lesser offenses as part of their definition, such as the Oregon assault statute at issue here. Offenses that are only illegal because of the offend- er’s status, such as possession of a firearm by a convicted felon, see 18 U.S.C. § 922(g)(1), are not implicated by our holding today, for, absent consideration of the offender’s status, there is no “core offense” remain- ing.

10810 UNITED STATES v. MORENO-HERNANDEZ edly based on Blakely v. Washington, 124 S. Ct. 2531 (2004).8 Specifically, Moreno-Hernandez suggests that Blakely, as applied to Oregon’s sentencing guidelines, limits the maxi- mum possible sentence for his Oregon Assault IV conviction to the presumptive maximum sentence available under the Oregon guidelines at the time — thirty-six months of proba- tion and a maximum of 180 days in jail. His contention is that the district court, in ascertaining the maximum possible state sentence to which Moreno-Hernandez was subject for his Assault IV conviction, should have looked not to the statutory maximum sentence for the offense, but to the maximum sen- tence available under the Oregon sentencing guidelines for Moreno-Hernandez, in particular. In effect, Moreno- Hernandez argues that because he could not have been sen- tenced for his Assault IV conviction to more than a maximum specified by the Oregon guidelines — which, he maintains, is less than one year — his conviction was not for a “felony.”

Whether or not Moreno-Hernandez’s argument would oth- erwise have merit in light of United States v. Rios-Beltran, 361 F.3d 1204, 1209 n.4 (9th Cir. 2004), we are unpersuaded that Blakely could have altered the maximum possible sen- tence at the time of his 1999 Oregon state conviction. For pur- 8 Moreno-Hernandez seems to raise two distinct challenges to his enhancement based, at the time, on Blakely. The government responded only to his first argument — that Blakely (and now Booker, 125 S. Ct. 738) prevents the district court from enhancing his sentence based on facts not found by the jury. We agree with the government that this contention is without merit. The district court relied only on the “fact of prior convic- tion” in enhancing Moreno-Hernandez’s sentence. Booker bars the district court from considering only those facts not found by the jury other than the fact of prior conviction. See, e.g., id. at 756 (Stevens, J.) (“Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” (emphasis added)). The fact of Moreno- Hernandez’s Assault IV conviction thus does not raise any Sixth Amend- ment problems. See United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir. 2004) (per curiam).

UNITED STATES v. MORENO-HERNANDEZ 10811 poses of ascertaining whether a predicate offense constitutes a “felony” for federal sentencing purposes, we are concerned only with the maximum possible sentence at that time.

In Rios-Beltran — which was decided before Blakely — we held that “what matters for federal sentencing purposes is that the statutory maximum sentence for the offense for which [the defendant] was convicted exceeded one year.” Id. at 1209. Because the statutory maximum for Rios-Beltran’s prior conviction was greater than one year, and because “Ore- gon [had] not ruled out the possibility” that Rios-Beltran’s actual sentence could lawfully exceed one year, we did not decide what effect it would have for purposes of section 2L1.2 if Oregon had ruled out that possibility. Id. at 1209 n.4. Likewise, at the time of Moreno-Hernandez’s prior convic- tion, the statutory maximum for his offense was greater than one year, and Oregon law did not necessarily preclude the imposition of an actual sentence of more than one year.

Oregon law has changed in light of Blakely, so that any sentence in excess of the presumptive range in the state guide- lines is now recognized as unconstitutional unless based on facts found by a jury or a prior conviction. State v. Dilts, 103 P.3d 95 (Or. 2004). That ruling was not in effect, however, at the time of Moreno-Hernandez’s Oregon conviction.

Moreno-Hernandez’s argument thus is tantamount to a col- lateral attack on his original conviction. We cannot consider such an attack as part of his challenge to a subsequent sen- tencing enhancement. See, e.g., United States v. Marks, 379 F.3d 1114, 1119 & n.4 (9th Cir. 2004) (citing Custis v. United States, 511 U.S. 485, 496 (1994)), cert. denied, 125 S. Ct. 1355 (2005); United States v. Martinez-Martinez, 295 F.3d 1041, 1044-45 (9th Cir. 2002). We therefore reject Moreno- Hernandez’s Blakely-based challenge to the district court’s determination that his Oregon state conviction was a “felony.” We express no opinion on how section 2L1.2 would apply in a case where the statutory maximum for a prior conviction

10812 UNITED STATES v. MORENO-HERNANDEZ was greater than one year, but the maximum actual sentence that could lawfully be imposed at the time of the conviction was less than one year.

Conclusion; Impact of Ameline

As discussed above, we include the presence of the victim’s minor child in ascertaining the statutory maximum sentence, so the statutory maximum for the Oregon Assault IV offense (including the presence of the victim’s minor child) was imprisonment for no more than five years. Because the Guide- lines define as a felony any offense punishable by a term of imprisonment exceeding one year, Moreno-Hernandez’s underlying state-law conviction was, in this respect, for a “fel- ony that is . . . a crime of violence.”

[7] We must, however, consider what effect the recent deci- sion in United States v. Ameline, No. 02-30326, 2005 WL 1291977 (9th Cir. June 1, 2005) (en banc) has on this appeal. There, our en banc court held that “when we are faced with an unpreserved Booker error that may have affected a defen- dant’s substantial rights, and the record is insufficiently clear to conduct a complete plain error analysis, a limited remand to the district court is appropriate for the purpose of ascertain- ing whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory.” Id. at *1. However, in Ameline, the defendant had asserted the Sixth Amendment objection that his “sentence was enhanced by judge-found facts under a mandatory Guidelines system,” and neither party had raised the “nonconstitutional error that a sentence was erroneously imposed under guidelines believed to be mandatory.” Id. at *11 & n.8. Here, by contrast, the district court committed no Sixth Amendment error. See supra note 8. Thus, the question we must decide is whether to follow Ameline’s “limited remand” approach where the only error involved is of the nonconstitutional variety.

UNITED STATES v. MORENO-HERNANDEZ 10813 [8] We conclude that defendants are entitled to limited remands in all pending direct criminal appeals involving unpreserved Booker error, whether constitutional or noncon- stitutional. Nothing in the Ameline opinion indicates that the en banc court intended to utilize that approach only in cases of Sixth Amendment error. Nor do we perceive any reason why Ameline should be so limited. After all, the reason for a limited remand is that it sometimes is not possible for us to answer the question whether the district court would have imposed the same sentence if it had known the guidelines were advisory, and the fact that the district court has not con- ducted any factfinding does not make this question any easier (or harder) for us to answer. We will therefore remand Moreno-Hernandez’s sentence in accordance with Ameline.9

REMANDED.

9 It is clear that the district court, under Ameline, will have to at least consider the available sentence under the now-discretionary federal Guide- lines in determining whether it would have imposed a different sentence had it known the Guidelines were advisory. That is why we resolve the question that was fully briefed and argued in this court concerning the applicability of the enhancement. By doing so, we assure that the district court will begin in this regard with the proper interpretation of the Guide- lines in determining whether it would have imposed a different sentence. Cf. United States v. Baclaan, 948 F.2d 628, 630-31 (9th Cir. 1991) (per curiam) (interpreting the district court’s application of non-binding policy statements in the Guidelines).