Free Mandate of 9th Circuit - District Court of Arizona - Arizona

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-10048
D.C. No. CR-02-01211-SRB
Plaintiff- Appellee,
v.
JUDGMENT
GILBERT L. LERMA, also lmown as
Smokey Lerma,
Defendant- Appellant.
Appeal from the United States District Court for the District of Arizona
(Phoenix).
This cause came on to be heard on the Transcript of the Record from the
United States District Cotut for the District of Arizona (Phoenix) and was duly
submitted.
On consideration whereof, it is now here ordered and adjudged by this
Court, that the judgment ofthe said District Court in this cause be, and hereby is
AFFIRMED in part; REMANDED inpart. (
Filed and entered 12/08/05
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Case 2:02—cr—01211—SRB Document 145 Filed 12/30/2005 Page 1 of 4

Nor Pon PUBLICATION 050 00 2005
UNITED STATES counr OF APPEALS °AT'J}»?°ff¤i°·1i= POR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-10048
Plaintiff- Appellee, D.C. No. CR—02-01211-SRB
v.
MEMORANDUM°
GILBERT L. LERMA, also known as
Smokey Lerma,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted November 15, 2005**
San Francisco, California
Before: SCHROEDER, Chief Judge, RYMER and GOULD, Circuit Judges.
F" This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
°* This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Case 2:02—cr—01211—SRB Document 145 Filed 12/30/2005 Page 2 of 4

Following a guilty plea, Gilbert Lee Lerma was convicted of assault with a
dangerous weapon in violation of 18 U.S.C. §§ 1153, 1l3(a)(3). He now contends
on appeal that the district court erred in ruling at sentencing he was a career
l offender under US SG § 4B1.1(a)(3).
Lerma contends his 1996 Arizona conviction for aggravated assault was not
a crime of violence. Lerma was convicted of "[i]ntentiona1ly placing another
person in reasonable apprehension of imminent physical inju1y," using "a deadly
weapon or dangerous instrument? Ariz. Rev. Stat. §§ 13-l203(A)(2), 13-
1204(A)(2). Because Lerma threatened someone else with a dangerous weapon, he
committed a crime that fell within one ofthe definitions of a crime of violence:
"threatened use of physical force against the person of another." USSG §
l 4B1.2(a)(1). -
Lerma also contends his 1994 Arizona conviction for class 6 felony
endangerment was not a crime of violence. "Class 6 felony endangerment” is
defined as "reck1essly endangering another person with a substantial risk of
imminent death.” Ariz. Rev. Stat. § 13—1201. This meets the definition of a crime
of violence because it "involves . . . a serious potential risk of injury to another."
USSG § 4B1.2(a)(2). ·
2
Case 2:02—cr—01211-SRB Document 145 Filed 12/30/2005 Page 3 of 4

Lerma also argues the district court impermissibly engaged in fact-finding
to determine he committed crimes of violence. The record shows the district court
relied only on the face of his convictions and the statutory definitions of the
crimes. This was not error. United States v. Shumate, 329 F.3d 1026, 1029 (9th
Cir. 2003). Because the district court correctly ruled Lerma had previously been
convicted of two crimes of violence, it did not err in concluding he is a career
offender.
'Lerma was sentenced before the Supreme Court decided United States v.
, 125 S.Ct. 738 (2005). Therefore, we remand to the district court to
determine whether it would have sentenced Lerma differently under a non-
. mandatory sentencing regime. United States v. Ameline, 409 F.3d 1073, 1084-85
(9th Cir. 2005).
APFIRMED IN PART; REMANDED IN PART.
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