Navarro-Coyazo

MEMORANDUM **

Defendant Hugo Navarro-Coyazo appeals his criminal sentence of 77 months’ imprisonment imposed following his guilty plea conviction for being an alien who reentered the United States without permission following deportation in violation of 8 U.S.C. § 1326 . We vacate the sentence imposed and remand for resentencing.

The district court improperly enhanced Defendant’s sentence by 16 levels under U.S.S.G. § 2L1.2(b)(l)(A)(i), based upon his 1994 conviction by guilty plea to a violation of California Health and Safety Code § 11351, because a generic conviction under that state statute does not qualify facially as a “drug trafficking offense” under the categorical approach established in Taylor v. United States, 495 U.S. 575, 600-02 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990). Specifically, § 11351 criminalizes the “purchase” of a controlled substance, which arguably may be proven even though the defendant never actually or constructively possessed the substance.

Second, under the modified categorical approach, the record currently before this court concerning Defendant’s 1994 drug conviction is insufficient to support the enhancement under our circuit’s case law.…