Opinion
D.C. No. CR-98-00553-JMR
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Dec. 7, 1999.
Appeal from the United States District Court for the District of Arizona John M. Roll, District Judge, Presiding.
Before BROWNING, RYMER, and KLEINFELD, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Juan Vargas-Gomez appeals the sentence imposed by the district court following his guilty plea to illegal reentry by a previously deported alien, in violation of 8 U.S.C. § 1326. Vargas-Gomez contends that the district court erred in enhancing his sentence 16 levels under U.S.S.G. § 2L1.2(b)(1)(A) because his prior state conviction for solicitation to deliver cocaine is not an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(B). In light of changes in the law since Vargas-Gomez was sentenced, we agree.
In Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir.1999), this court held that solicitation to commit a drug offense is not an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(B). Although the prior offense in Leyva-Licea arose under Arizona's generic solicitation statute, the Washington solicitation statute under which Vargas-Gomez was convicted is substantially similar. At sentencing, the district court concluded that the Washington statute could be construed differently from Arizona's based on In re Hopkins, 948 P.2d 394 (Wash.App.1997), where the court held that a conviction for solicitation to deliver cocaine was subject to the state's double sentence provision as an inchoate drug offense. However, after Vargas-Gomez's sentencing, the Washington Supreme Court reversed, holding that the double sentence provision, which includes only attempt and conspiracy as specific offenses, does not reach the crime of solicitation. In re Hopkins, 976 P.2d 616 (Wash.1999) (en banc). Thus, because solicitation is not in the same general category as attempt or conspiracy under Washington law, the Washington statute is not distinguishable from the Arizona statute at issue in Leyva-Licea.
Accordingly, Leyva-Licea controls. The government argues otherwise, noting that Leyva-Licea only considers whether solicitation is a "drug trafficking crime," not whether it could be "illicit trafficking in a controlled substance" under § 1101(a)(43)(B). However, we do not see how this matters, because Leyva-Licea 's holding that solicitation "is not an aggravated felony under § 1101(a)(43)(B)" is not so limited. Leyva-Licea, 187 F.3d at 1150.
Therefore, we must reverse the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A), and remand for resentencing.
REVERSED AND REMANDED.