United States v. Josue Gonzalez-Reyes

MEMORANDUM

Josué Gonzalez-Reyes appeals the sentence imposed following a guilty plea to one count of illegal reentry in violation of 8 U.S.C. § 1326 .

1. The district court did not err in concluding that Minnesota defines aiding and abetting liability no more broadly than federal law. See State v. Ulvinen, 313 N.W.2d 425, 428-29 (Minn.1981); State v. Kessler, 470 N.W.2d 536, 542 (Minn.App.1991).

2. We reject Gonzalez-Reyes’s argument that applying the 2011 version of the Sentencing Guidelines to his 2012 illegal reentry conviction violates the Ex Post Facto Clause. The relevant “offense” for ex post facto purposes is “the offense of re-entry, not the state ... offense.” United States v. Gallegos-Galindo, 704 F.3d 1269, 1273 (9th Cir.2013); accord Peugh v. United States, — U.S. -, 133 S.Ct. 2072, 2088 , 186 L.Ed.2d 84 (2013).

3. The district court nonetheless erred in concluding that Gonzalez-Reyes’s Minnesota conviction was a “drug trafficking offense” under the 2011 Sentencing Guidelines. See U.S.S.G. § 2L1.2(b)(l)(A) (2011).

The Minnesota statute under which Gonzalez-Reyes was convicted is “divisible” because it “sets out one or more elements of the offense in the…