Filed: Sep. 28, 2016
Latest Update: Mar. 03, 2020
Summary: FILED NOT FOR PUBLICATION SEP 28 2016 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 15-10291 Plaintiff-Appellee, D.C. No. 4:14-cr-02029-CKJ-CRP-1 v. MARCO SANCHEZ-FERNANDEZ, MEMORANDUM* AKA Marcos Fernandes Sanchez, AKA Marcos Sanchez-Fernandez, AKA Rene Sanchez-Flores, Defendant-Appellant. Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding Argued a
Summary: FILED NOT FOR PUBLICATION SEP 28 2016 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 15-10291 Plaintiff-Appellee, D.C. No. 4:14-cr-02029-CKJ-CRP-1 v. MARCO SANCHEZ-FERNANDEZ, MEMORANDUM* AKA Marcos Fernandes Sanchez, AKA Marcos Sanchez-Fernandez, AKA Rene Sanchez-Flores, Defendant-Appellant. Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding Argued an..
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FILED
NOT FOR PUBLICATION
SEP 28 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10291
Plaintiff-Appellee, D.C. No.
4:14-cr-02029-CKJ-CRP-1
v.
MARCO SANCHEZ-FERNANDEZ, MEMORANDUM*
AKA Marcos Fernandes Sanchez, AKA
Marcos Sanchez-Fernandez, AKA Rene
Sanchez-Flores,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted September 13, 2016
San Francisco, California
Before: W. FLETCHER, CHRISTEN, and FRIEDLAND, Circuit Judges.
Marco Sanchez-Fernandez appeals from his sentence for illegal reentry, in
violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and
we reverse and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The district court concluded that Sanchez-Fernandez’s prior conviction for
possession of narcotics for sale in violation of Arizona Revised Statute § 13-
3408(A)(2) was a “drug trafficking offense” under United States Sentencing
Guidelines (U.S.S.G.) § 2L1.2(b)(1)(A)(i), and applied a 16-level enhancement.
That Arizona statute is not a categorical match with the federal generic definition
because it criminalizes possession for sale of certain substances that are not
federally controlled. See Mellouli v. Lynch,
135 S. Ct. 1980, 1990–91 (2015); see
also United States v. Leal-Vega,
680 F.3d 1160, 1167 (9th Cir. 2012) (holding that
a California statute criminalizing possession or purchase of non-federally
controlled substances was categorically broader than the definition of “drug
trafficking offense” under U.S.S.G. § 2L1.2). When Sanchez-Fernandez was
sentenced, neither the district court nor the parties had the benefit of Mathis v.
United States,
136 S. Ct. 2243 (2016). Because an Arizona jury would not be
required to find which narcotic drug a defendant possessed to render a conviction
for § 13-3408(A)(2), see Rev. Ariz. Jury Instructions (Criminal), 34.082 (3d ed.),
the statue is indivisible. See
Mathis, 136 S. Ct. at 2256–57; Lopez-Valencia v.
Lynch,
798 F.3d 863, 869 (9th Cir. 2015). The district court—not having been put
on notice of the issue by an objection on this ground—committed plain error by
applying a sentencing enhancement based on Sanchez-Fernandez’s conviction
2
under this statute. See
Mathis, 136 S. Ct. at 2257. We reverse the sentence
imposed by the district court and remand for resentencing without the
enhancement. We need not reach Sanchez-Fernandez’s other arguments in light of
our reversal on this ground.
REVERSED and REMANDED.
3