Figueroa-Ocampo

MEMORANDUM **

Defendant-Appellant Arturo Carlos Figueroa-Ocampo appeals his sentence for being a deported alien found in the United States in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 . We vacate Figueroa-Ocampo’s sentence and remand to the district court for resentencing.

The district court sentenced Figueroa-Ocampo to thirty-seven months imprisonment followed by three years of supervised release. In imposing Figueroa-Ocampo’s sentence, the district court applied an eight-point sentence enhancement based on Figueroa-Ocampo’s prior conviction for possession of cocaine base in violation of California Health and Safety Code § 11350(a).

The district court determined that Figueroa-Ocampo’s prior simple possession conviction, a felony under California law but a misdemeanor under the Controlled Substances Act, is a “felony punishable by the Controlled Substances Act.” Accordingly, the district court determined that Figueroa-Ocampo’s prior conviction is an aggravated felony under 8 U.S.C. § 1326 (b)(2) meriting an eight-point sentence enhancement. On appeal, Figueroa-Ocampo challenges the district court’s classification of his prior conviction.…