Opinion
No. 05-50777.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed March 14, 2007.
USSD-Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
James Fife, FDSD-Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California; Marilyn L. Huff, District Judge, Presiding. D.C. No. CR-03-01112-MLH.
Before: PREGERSON, GOULD, and CLIFTON, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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.
On January 31, 2006, Figueroa-Ocampo completed serving his thirty-seven month sentence and was released to serve his three-year term of supervised release. Figueroa-Ocampo was also deported to Mexico.
"[A] state offense constitutes a 'felony punishable under the Controlled Substances Act' only if it proscribes conduct punishable as a felony under that federal law." Lopez v. Gonzales, ___ U.S. ___, 127 S.Ct. 625, 633, 166 L.Ed.2d 462 (2006). Thus, under Lopez, the district court erred in categorizing Figueroa-Ocampo's simple possession conviction as a "felony punishable by the Controlled Substances Act," and an aggravated felony for sentence enhancement purposes.
Moreover, the district court erroneously determined that Figueroa-Ocampo faced a twenty-year statutory maximum under 8 U.S.C. § 1326(b)(2) instead of a ten-year maximum under 8 U.S.C. § 1326(b)(1). See 8 U.S.C. § 1326(b)(1)-(2). His three-year term of supervised release was also calculated based on the wrong statutory provision.
"[W]here a defendant has received a sentence that includes a period of supervised release, a challenge to the length of his sentence of imprisonment is not moot because the district court has discretion regarding the length of supervised release, see 18 U.S.C. § 3583(a)(b), and can change the supervised release period, see § 3583(e)(2)." United States v. Allen, 434 F.3d 1166, 1170 (9th Cir. 2006) (noting that "the district court could resentence [the defendant] to a shorter term of supervised release in light of a shorter appropriate term of imprisonment").
The Sentencing Guidelines provide different terms of supervised release for crimes under § 1326(b)(1) and § 1326(b)(2). Compare U.S.S.G. § 5D1.2(a)(1) ("[a]t least three years but not more than five years" of supervised release), with U.S.S.G. § 5D1.2(a)(2) ("[a]t least two years but not more than three years" of supervised release). Accordingly, it is possible that the district court would have imposed a shorter term of supervised release if it had sentenced Figueroa-Ocampo under § 1326(b)(1) instead of § 1326(b)(2). See Gunderson v. Hood, 268 F.3d 1149, 1153 (9th Cir. 2001) (holding that the possibility of relief is sufficient to prevent mootness).
We therefore VACATE Figueroa-Ocampo's sentence, and REMAND to the district court for resentencing Figueroa-Ocampo in light of this decision and the Supreme Court's decision in Lopez v. Gonzales, ___ U.S. ___, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006).