Rivera-Galvan

MEMORANDUM *

Hector Rivera-Galvan appeals his conviction and sentence for importation of methamphetamine and cocaine, and for possession with intent to distribute cocaine. See 21 U.S.C. §§ 841 (a)(1), 952, 960. We affirm in part, reverse in part, and remand.

(1) Rivera first asserts that his conviction on count 1 should be overturned because that count charged both importation of methamphetamine and importation of cocaine, which made it duplicitous. We agree. Those are separate offenses. See United States v. Vargas-Castillo, 329 F.3d 715, 722 (9th Cir.2003). Thus, they could not be charged in a single count. See United States v. Ramirez-Martinez, 273 F.3d 903, 913 (9th Cir.2001).

The count and conviction could have been saved if the government had elected one of the offenses, or if the court had required the jury to agree on each distinct charge. See Ramirez-Martinez, 273 F.3d at 915 . Neither one happened here. In fact, the court, essentially, instructed that count 1 was a single crime, and, although separate verdict forms were supplied, the court never told the jury that it must unanimously decide which of the distinct charges Rivera actually committed. Thus, we must reverse…