United States v. De Dios-Samaniego

MEMORANDUM ***

Defendant Alfredo De Dios-Samaniego appeals his 54-month sentence following his conviction for attempted illegal reentry, 8 U.S.C. § 1326 , and raises an ineffective assistance of counsel claim. We dismiss in part, reverse in part, and remand for resentencing.

1. As the government now concedes, the district court erred at sentencing by imposing an 8-level adjustment for a prior aggravated felony under U.S.S.G. § 2L1.2(b)(l)(C). Defendant’s conviction for a violation of California Health & Safety Code § 11379(a) is not a “drug trafficking” offense under the categorical approach and is therefore not an “aggravated felony.” 8 U.S.C. § 1101 (a)(43)(B); Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1129 (9th Cir.2007); United States v. Navidad-Marcos, 367 F.3d 903, 907-08 (9th Cir.2004).

Judicially noticeable documents demonstrate that Defendant pleaded guilty to transporting more than one kilogram of methamphetamine. Defendant’s conviction is not a “drug trafficking” offense under the modified categorical approach because Defendant did not admit to a “trafficking element” and because his conduct would not necessarily be punishable as a felony under federal drug laws. See…