Diego-Barrera
United States v. Diego-Barrera
Opinion
lead Opinion
ORDER
The Petition for Rehearing is GRANTED in part. The Memorandum Disposition filed May 9, 2006, is WITHDRAWN. A new memorandum disposition is filed simultaneously with this order.
The Petition for Rehearing En Banc is DENIED as moot.
MEMORANDUM **
In 2005, Marcos Diego-Barrera pled guilty to illegal re-entry. At his sentenc *831 ing hearing, the government sought enhancements based on two prior convictions. Previously, Diego-Barrera had pled guilty to “Possession or purchase for sale of designated controlled substances,” in violation of Cal. Health & Safety Code § 11351 , and “Transportation, sale, giving away, etc., of designated controlled substances,” in violation of Cal. Health & Safety Code § 11352 . Diego-Barrera objected to the imposition of a sentence enhancement. He argued that the government failed to provide clear and unequivocal evidence that these prior convictions constituted aggravated felonies. The district court rejected this argument and imposed a seventy-eight month sentence.
On May 9, 2006, we issued a memorandum disposition affirming the enhanced sentence. United States v. Diego-Barrera, 180 Fed.Appx. 649 (9th Cir.2006). We applied the modified…