                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 07 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


FRANK EUGENE MAY,                                No. 08-17250

              Petitioner - Appellant,            D.C. No. 1:07-cv-00011-FMTG

  v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA,

              Respondent - Appellee.


                      Appeal from the District Court of Guam
                Frances Tydingco-Gatewood, Chief Judge, Presiding

                           Submitted February 7, 2011**
                                Honolulu, Hawaii

Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.

       On August 3, 1993 Frank Eugene May was convicted of three offenses

relating to his receipt in Guam of a small package of cocaine sent from California.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We vacate two of the convictions and remand for re-sentencing on the remaining

one.

        The parties are in agreement as to the facts and law, so we do not restate

them.

        1. The parties agree that May is actually innocent of Count I (violation of 21

U.S.C. § 952) pursuant to United States v. Cabbacang, 332 F.3d 622 (9th Cir.

2003) (en banc). The District Court refused to vacate Count I, believing that

because Cabbacang “is a Ninth Circuit decision[, it] lack[s] the same import of a

Supreme Court ruling with respect to retroactive application.” But there is no

difference for purposes of collateral review between Supreme Court rulings and

court of appeals rulings on the substantive reach of criminal statutes. Cabaccang

“alter[ed] the range of conduct . . . that the law punishes,” Schriro v. Summerlin,

542 U.S. 348, 353 (2004), and so announced a new substantive rule of law that a

court must apply on collateral review. See id. at 351 (“New substantive rules

generally apply retroactively.” (emphasis removed)). Under Cabbacang, May is

actually innocent of Count I, so that count must be vacated.

        2. The parties also agree that May is actually innocent of Count II (violation

of 21 U.S.C. § 843(b)) pursuant to Cabaccang and the Supreme Court’s decision in




                                           2
Abuelhawa v. United States, 129 S. Ct. 2102 (2009). That count should be, and is,

vacated.

         3. The parties agree that if Counts I and II are vacated, May should be

resentenced on Count III (violation of 18 U.S.C. § 922(g)). Once Counts I and II

are vacated, May’s conviction pursuant to Count III would not be “in connection

with either a crime of violence . . . or a controlled substance offence,” U.S.S.G. §

4B1.4(b)(3)(A), so the offense level as to that count would be affected. See

U.S.S.G. § 4B1.4(b)(3)(B). For the same reasons, May’s criminal history should

be Category IV. See U.S.S.G. § 4B1.4(c). May’s sentence pursuant to Count III is

therefore vacated and the District Court is instructed to resentence May on that

count.

         Counts I and II are VACATED; the sentence on Count III is

VACATED and the case is REMANDED.

         The mandate shall issue forthwith.




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