United States of America v. Martin Cantu Ruiz

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARTIN CANTU RUIZ,
Defendant-Appellant.
No. 16-30175
D.C. No. 1:11-cr-00240-BLW
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Martin Cantu Ruiz appeals from the district court’s judgment and challenges
the 120-month sentence imposed following his jury-trial conviction for unlawful
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We have
jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
The parties agree that the district court erred in concluding that Ruiz’s prior
conviction for battery on a corrections officer, in violation of Idaho Code § 18-903
and 915(c) (2005), is a categorical crime of violence for purposes of U.S.S.G.
§ 2K2.1(a). However, the government fails to address whether Idaho Code § 18-
915(c), which incorporates the three different definitions of battery stated in Idaho
Code § 18-903, is divisible and subject to the modified categorical approach. See
United States v. Martinez-Lopez, 864 F.3d 1034, 1036 (9th Cir. 2017) (en banc)
(“If a categorically overbroad statute . . . is divisible, then it is subject to the
modified categorical approach.”). In addition, the documents of conviction for
Ruiz’s battery conviction are not part of the record. Accordingly, we remand to
permit the district court to determine in the first instance whether Idaho Code § 18-
915(c) is divisible and, if so, whether Ruiz’s conviction under that section is a
crime of violence under the modified categorical approach. If the court determines
that the statute is indivisible, or that Ruiz’s conviction is not a crime of violence
under the modified categorical approach, it shall resentence Ruiz using a base
offense level of 22 to calculate the applicable Guidelines range.
VACATED and REMANDED.

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