FILED

NOT FOR PUBLICATION JUN 19 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-10065

Plaintiff - Appellee, D.C. No. 4:11-cr-02086-JGZ-

HCE-1

v.

ALEJANDRO SALGADO-URIAS, MEMORANDUM*

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona Jennifer G. Zipps, District Judge, Presiding

Argued and Submitted May 9, 2013 San Francisco, California

Before: W. FLETCHER, GOULD, and CHRISTEN, Circuit Judges.

Alejandro Salgado-Urias appeals his 46-month sentence for illegal reentry

after having previously been deported. 8 U.S.C. § 1326(a). The district court

concluded that solicitation to possess marijuana for sale under Arizona Revised

Statute §§ 13-1002 and 13-3405(A) is categorically a “drug trafficking offense”

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. within the meaning of United States Sentencing Guidelines Manual

§ 2L1.2(b)(1)(A). Salgado-Urias’s offense level was therefore subject to a 16-level

enhancement. Id. We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate

Salgado-Urias’s sentence and remand for application of the modified categorical

approach.

1. Assuming without deciding that common-law solicitation fits within

Application Note 5, we must decide whether Arizona applies its solicitation law

more broadly than generic, common-law solicitation. See United States v.

Shumate, 329 F.3d 1026, amended, 341 F.3d 852 (9th Cir. 2003) (analyzing

§ 4B1.2 cmt. n.1); see also United States v. Contreras-Hernandez, 628 F.3d 1169,

1171–73 (9th Cir. 2011). For purposes of the categorical approach:

To find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.

Saavedra-Velazquez, 578 F.3d 1103, 1109 (9th Cir. 2009) (quoting Gonzales v.

Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

2 We need not look beyond the record in this case to conclude that Arizona’s

statute can be, and is, applied to offenses that may not be included in the common

law definition of “solicitation.” Here, the application of § 13-1002 shows Salgado-

Urias pleaded guilty to solicitation even though the plea colloquy filed by the

government establishes a genuine question whether Salgado-Urias was the

solicitor, or was himself solicited, to possess marijuana for sale. There is more

than a “a realistic probability” that Arizona’s solicitation statute is applied to

“conduct outside the generic definition” of solicitation. Id.

Salgado-Urias pleaded guilty to solicitation of possession of marijuana for

sale, which is a less serious offense than possession of marijuana for sale. See

Ariz. Rev. Stat. Ann. § 13-1002(B). During the plea colloquy, he stated that he

agreed to allow someone to store two or three large bundles of marijuana in his

trailer. We conclude that Arizona’s solicitation statute is categorically overbroad,

vacate Salgado-Urias’s sentence, and remand this case to the district court for

application of the modified categorical approach.

2. Salgado-Urias also argues his sentence was substantively unreasonable.

This argument is not persuasive. Contrary to Salgado-Urias’s contention, the

district court considered the 18 U.S.C. § 3553(a) factors, the nature of the offense,

3 and Salgado-Urias’s background. See Gall v. United States, 552 U.S. 38, 51

(2007).

3. Salgado-Urias argues he was entitled to a downward departure, pursuant

to Sentencing Guideline § 2L1.2 Application Note 7, or a variance. Application

Note 7 describes a discretionary departure, § 2L1.2 cmt. n.7, and variances are also

granted on a discretionary basis, see, e.g., United States v. Oseguera-Madrigal, 700

F.3d 1196, 1199 (9th Cir. 2012). The district court did not abuse its discretion by

declining to grant a downward departure or variance in this case.

4. Finally, Salgado-Urias’s solicitation conviction was not outside the

temporal scope of criminal history contemplated by the Guidelines. U.S.

Sentencing Guidelines Manual § 4A1.2(e)(1); cf. United States v. Amezcua-

Vasquez, 567 F.3d 1050, 1052 (9th Cir. 2009).

SENTENCE VACATED AND REMANDED FOR RESENTENCING.

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