United States v. Marco Sanchez-Fernandez

MEMORANDUM

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.

The district court concluded that San-ehez-Femandez’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)(1), 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, - U.S.-, 135 S.Ct. 1980, 1990-91 , 192 L.Ed.2d 60 (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, — U.S. -, 136 S.Ct. 2243…