Flores-Correa

MEMORANDUM ***

Jesus Flores-Correa appeals the sentence imposed following his guilty plea to illegal reentry in violation of 8 U.S.C. § 1326 . He contends that the government failed to meet its burden of establishing that his 1988 drug conviction under Cal. Health & Safety Code § 11352 qualifies as a “drug trafficking offense” for purposes of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A).

It is undisputed that § 11352 is over-inclusive under the categorical approach of Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990). See United States v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir.2001) (en banc) (holding that § 11352 is broader than the federal “drug trafficking” statutes because it includes solicitation). We therefore apply Taylor’s modified categorical approach to determine whether Flores-Correa’s prior conviction necessarily qualifies as a predicate offense under U.S.S.G. § 2L1.2(b)(1)(A). United States v. Lopez-Montanez, 421 F.3d 926, 928, 931 (9th Cir .2005).

We conclude that the documents and judicially noticeable facts presented to the district court do not satisfy the government’s burden of establishing “clearly and…