United States v. Alvarez-Soria

148 F. App'x 581

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 16, 2005
• Docket: No. 04-10274
• Status: Published

Opinion

MEMORANDUM

**

Juan Alvarez-Soria appeals his sentence and conviction following his conditional guilty plea for illegal reentry after deportation in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

While Alvarez-Soria’s 1999 conviction under Cal. Health & Safety Code § 11379(a) is not categorically an aggravated felony because it encompasses solicitation, see United States v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir.2001) (en banc), the judicially noticeable documents before the district court — the information, the plea agreement and the judgment— established that Alvarez-Soria pled no contest to, and was subsequently convicted of, Count 3 of the information — which included transporting, soliciting and attempting to import methamphetamine. Thus, his particular conviction encompassed drug trafficking, which constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). Accordingly, the district court did not err when it denied AlvarezSoria’s motion to dismiss, finding that his prior conviction constituted an aggravated felony under the modified categorical approach.

Alvarez-Soria challenges his sentence under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Because the Sentencing Guidelines are no longer binding — and we cannot ascertain whether the district court would have imposed a different sentence under a discretionary regime — we remand to the district court for discretionary reconsideration of the sentence in light of United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc).

AFFIRMED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.