Appeal from the United States District Court for the Northern District of California Vaughn R. Walker, District Judge, Presiding D.C. No.3:09-cr-00193- VRW-1
The opinion of the court was delivered by: Fisher, Circuit Judge:
February 13, 2012--San Francisco, California
Before: Sidney R. Thomas, Raymond C. Fisher, and Sandra S. Ikuta, Circuit Judges.
The panel vacated a sentence and remanded in a case in which the district court sentenced the defendant as a career offender under U.S.S.G. § 4B1.1 after concluding that his two prior convictions under California Health & Safety Code § 11352(a) qualified as controlled substance offenses.
Applying the modified categorical approach, the panel held that the record is inconclusive as to whether the defendant's San Francisco § 11352(a) conviction was a controlled substance offense, where one of the theories charged in the conjunctively-phrased charging document - transportation of cocaine - would not qualify.
Regarding the defendant's Alameda County § 11352(a) conviction, the panel held that neither the sentencing court's failure to state on the record special findings regarding probation eligibility, nor an abstract of judgment reciting the name of the violated statute, undermines the proof of the defendant's conviction for selling or offering to sell cocaine base, where the indictment explicitly charged the defendant with "sell[ing] or offer[ing] to sell" cocaine base, and the minute order from the change of plea hearing states that the defendant pled guilty to the violation of § 11352(a) "as charged in the indictment."
The panel remanded for the district court to consider whether the defendant's convictions under California Penal Code §§ 69 and 243.1 constitute predicate offenses that, in conjunction with his Alameda County conviction, would qualify him as a career offender.
We consider whether the district court erred by sentencing Jason Lee as a career offender under U.S. Sentencing Guidelines Manual § 4B1.1 based on his two prior convictions under California Health and Safety Code § 11352(a). We hold that the government has not satisfied its burden of showing that one of these two convictions qualifies as a predicate offense and remand for the district court to reconsider Lee's career offender status.
Jason Lee was convicted of distributing crack cocaine in violation of 21 U.S.C. § 841. The district court sentenced Lee as a career offender under U.S. Sentencing Guidelines Manual § 4B1.1 after concluding that his two prior convictions under California Health & Safety Code § 11352(a) qualified as controlled substance offenses. The guidelines recommended 262 to 327 months' ...