You're viewing Docket Item 52 from the case USA v. Rivera-Carbajal. View the full docket and case details.

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UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

UNITED STATES OF AMERICA,
Plaintiff,

vs.
JOSE RIVERA-CARBAJAL,

_________________________________

Defendant.

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2:11-cr-00427-HDM-CWH
2:13-cv-01068-HDM

ORDER

In his motion to vacate, set aside, or correct sentence

pursuant to 28 U.S.C. § 2255, defendant argues in one of his claims
that his conviction for battery constituting domestic violence
(third offense) was not a crime of violence, and that his attorneys
were therefore ineffective for failing to object to the 16-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). To the extent it
can be argued that battery under Nevada law is not categorically a
crime of violence, see United States v. Moreno-Tobar, 452 Fed.
App’x 763 (9th Cir. 2011) (unpublished disposition); Ortega-Mendez
v. Gonzales, 450 F.3d 1010 (9th Cir. 2006); Hobbs v. State of
Nevada, 251 P.2d 177 (Nev. 2011), counsel should advise the court
of the evidence relied upon in determining that defendant was
subject to the 16-level enhancement. Accordingly, on or before
February 3, 2014:

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1. The United States Probation Office shall provide to the

court a copy of all documents that it had and that were available
to defendant’s attorneys relating to defendant’s conviction for
battery constituting domestic violence (third offense) (Presentence
Report ¶ 27) and;

2. The government shall file any declarations of Paul Riddle,

defendant’s counsel at sentencing, and Alina Shell, defendant’s
counsel on appeal, identifying the evidence on which they relied to
conclude that there was no reasonable argument to be made that the
defendant was not subject to the 16-level enhancement.

IT IS SO ORDERED.
DATED: This 14th day of January, 2014.

____________________________
UNITED STATES DISTRICT JUDGE

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