Leal-Vega

The United States of America (Government) appeals the thirty-months sentence imposed on Jose Leal-Vega for illegal reentry 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, LealVega’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 Leal-Vega’s prior Section 11351 conviction qualifies as a “drug trafficking offense” using the modified categorical approach, and we reverse…