Vasquez

MEMORANDUM **

Juan Carlos Vasquez (“Vasquez”), a 39-year-old native and citizen of Mexico, appeals the district court’s decision to enhance his sentence for violating 8 U.S.C. § 1326 (a) by 8 levels due to his prior con *727 viction of an aggravated felony. We have jurisdiction under 28 U.S.C. § 1291 .

On appeal, Vasquez contends that his prior conviction under Cal. Health & Safety Code § 11350 (a) was not an aggravated felony, and that the district court therefore erred in enhancing his sentence. We agree. We have held that an offense is to be classified as a felony for purposes of the Controlled Substances Act only if it is “punishable by more than one year’s imprisonment under applicable state or federal law.” See United States v. Ballesteros-Ruiz, 319 F.3d 1101, 1103 (9th Cir. 2003).

The full range of conduct encompassed by § 11350 does not necessarily result in punishment of more than one year’s imprisonment and therefore a conviction under § 11350 is not an aggravated felony under the categorical approach. United States v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir.2001) (en banc). In limited circumstances, however, we apply a modified categorical approach to go beyond…