Diego-Barrera

MEMORANDUM **

Marcos Diego-Barrera appeals the district court’s imposition of a 78-month sentence for illegal re-entry after deportation in violation of 8 U.S.C. § 1326 . He contends that the government failed to meet its burden of establishing that either of his 1991 convictions under California Health and Safety Code §§ 11351 and 11352 qualified as a “drug trafficking offense” for the purpose of a sentencing enhancement under either 8 U.S.C. § 1326 (b)(2) or USSG § 2L1.2(b)(l)(A) (2004).

California Health and Safety Code § 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. Navidad-Marcos, 367 F.3d 903, 907-08 (9th Cir.2004); see also United States v. Kovac, 367 F.3d 1116, 1118-19 (9th Cir. 2004); United States v. Riverar-Sanchez, 247 F.3d 905, 909 (9th Cir.2001) (en banc).

*651 California Health and Safety Code § 11351 is also over-inclusive because it criminalizes the “purchase” of a controlled substance, which arguably may be proven even though the defendant never actually or constructively possessed the substance. See Armstrong v. Superior Court, 217 Cal.App.3d…