Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding D.C. No. 2:10-CR-00756- PSG-1
The opinion of the court was delivered by: M. Smith, Circuit Judge:
Argued and Submitted April 11, 2012-Pasadena, California
Before: Andrew J. Kleinfeld and Milan D. Smith, Jr., Circuit Judges, and Algenon L. Marbley, District Judge.*fn1
Opinion by Judge Milan D. Smith, Jr.
The United States of America (Government) appeals the thirty-months sentence imposed on Jose Leal-Vega for illegal re-entry following deportation. The district court declined to apply a sixteen-level enhancement pursuant to United States Sentencing Guidelines, U.S.S.G. § 2L1.2, for Leal-Vega's prior conviction under California Health & Safety Code § 11351. The Government contends that the sixteen-level enhancement should have been applied because Section 11351 is categorically a "drug trafficking offense" under U.S.S.G. § 2L1.2. Alternatively, the Government contends that even if Section 11351 does not categorically qualify, Leal-Vega's conviction qualifies as a "drug trafficking offense" applying the modified categorical analysis because the substance involved was tar heroin, a substance covered by the federal Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq.
We hold that a conviction under Section 11351 does not qualify categorically as a "drug trafficking offense" for the purposes of U.S.S.G. § 2L1.2. However, we hold that LealVega's prior Section 11351 conviction qualifies as a "drug trafficking offense" using the modified categorical approach, and we reverse and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
On March 3, 1999, Leal-Vega was charged in Count 1 of a felony complaint with "committ[ing] a violation of Health and Safety Code section 11351, a felony, in that on or about March 1, 1999, in the County of Riverside, State of California, [he] did wilfully and unlawfully possess for sale and purchase for purpose of sale a controlled substance, to wit, TAR HEROIN." He was concurrently charged with another count. Leal-Vega pled guilty to Count 1, and the second count was dismissed.
On August 23, 2010, Leal-Vega pled guilty to illegal re-entry following deportation, under 8 U.S.C. § 1326. The information charged Leal-Vega with a prior 1999 felony conviction for possession of a controlled substance for sale, in violation of California Health & Safety Code § 11351.
In the Presentence Report (PSR), the Probation Office recommended a sixteen-level enhancement based on the prior conviction, which it categorized as a "drug trafficking offense." Leal-Vega objected to this categorization, arguing that Section 11351 is categorically broader than the Sentencing Guidelines's definition of a "drug trafficking offense." After initially arguing that Section 11351 was a categorical fit, the Government later conceded that the statute was too broad. Prior to sentencing, the district court requested more information for the purpose of conducting the modified categorical analysis. The Government subsequently retracted its concession regarding the inapplicability of the categorical analysis to Section 11351, and claimed that since the Sentencing Guidelines do not incorporate the CSA's definition of "controlled substance," Section 11351 is not overbroad, and that the statute is a categorical fit.
The district court concluded that Section 11351 was not categorically a "drug trafficking offense," and also found that the record of conviction for Leal-Vega's 1999 conviction was insufficient to establish a modified categorical fit. Thus, the district court only applied a four-level sentence enhancement,*fn2 and imposed a sentence of thirty months imprisonment, based on a calculated Guidelines range of twenty-four to thirty months. The Government timely appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291.
We review de novo the district court's interpretation of the Sentencing Guidelines. United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006). We review the district court's application of the ...