                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 31 2013

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

UNITED STATES OF AMERICA,                        No. 12-10369

              Plaintiff - Appellee,              D.C. No. 4:11-cr-04043-RCC-
                                                 HCE-1
  v.

JOSUE GONZALEZ-REYES,                            MEMORANDUM*

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Raner C. Collins, District Judge, Presiding

                             Submitted July 10, 2013**
                             San Francisco, California

Before: FERNANDEZ, PAEZ, and BERZON, Circuit Judges.

       Josue Gonzalez-Reyes appeals the sentence imposed following a guilty plea

to one count of illegal reentry in violation of 8 U.S.C. § 1326.




        *
             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).
      1. The district court did not err in concluding that Minnesota defines aiding

and abetting liability no more broadly than federal law. See State v. Ulvinen, 313

N.W.2d 425, 428–29 (Minn. 1981); State v. Kessler, 470 N.W.2d 536, 542 (Minn.

App. 1991).

      2. We reject Gonzalez-Reyes’s argument that applying the 2011 version of

the Sentencing Guidelines to his 2012 illegal reentry conviction violates the Ex

Post Facto Clause. The relevant “offense” for ex post facto purposes is “the

offense of re-entry, not the state . . . offense.” United States v. Gallegos-Galindo,

704 F.3d 1269, 1273 (9th Cir. 2013); accord Peugh v. United States, 133 S. Ct.

2072, 2088 (2013).

      3. The district court nonetheless erred in concluding that Gonzalez-Reyes’s

Minnesota conviction was a “drug trafficking offense” under the 2011 Sentencing

Guidelines.1 See U.S.S.G. § 2L1.2(b)(1)(A) (2011).

      The Minnesota statute under which Gonzalez-Reyes was convicted is

“divisible” because it “sets out one or more elements of the offense in the

alternative.” See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).



      1
       We review de novo “because the legal issue[] . . . fall[s] within the
exceptions to plain error review described by United States v. Saavedra–Velazquez,
578 F.3d 1103, 1106 (9th Cir. 2009).” See United States v. Green, — F.3d — ,
2013 WL 3467098, at *1 n.2 (9th Cir. July 11, 2013).

                                          2
Specifically, the statute of conviction covers both sales and possession crimes. See

Minn. Stat. § 152.021. We therefore may “consult” the “jury instructions[] to

determine which alternative formed the basis of” Gonzalez-Reyes’s Minnesota

conviction. See Descamps, 133 S. Ct. at 2281. The instructions make clear that he

was convicted under Minnesota Statute § 152.021 subdivision 1(1), for

“unlawfully sell[ing] one or more mixtures of a total weight of ten grams or more

containing . . . methamphetamine.”

      That offense, in turn, “sweep[s] more broadly” than the Guidelines

definition of a “drug trafficking offense.” See Descamps, 133 S. Ct. at 2283;

U.S.S.G. § 2L1.2(b)(1)(A) & app. n.1(B)(iv) (2011). In particular, Minnesota

defines to “sell” to include “to offer” “to . . . give away, barter, deliver, exchange,

distribute or dispose of to another.” Minn. Stat. § 152.01 subdiv. 15a(1)–(2). We

have held that the Guidelines are narrower, and exclude “offers to . . . furnish,

administer, or give away” controlled substances. See United States v. Navidad-

Marcos, 367 F.3d 903, 908 (9th Cir. 2004). Since our decision in Navidad-

Marcos, the Guidelines definition of a “drug trafficking offense” has been

amended to include a conviction for an “offer to sell” a controlled substance. See

U.S.S.G. App’x C, Amend. 722 (2008); U.S.S.G. § 2L1.2(b)(1)(A) & app.

n.1(B)(iv) (2011). But nothing in the plain text of that amendment or the


                                           3
accompanying commentary suggests that a drug trafficking offense now includes

other types of offers, such as an offer to “give away” a controlled substance. Cf.

Navidad-Marcos, 367 F.3d at 908; Minn. Stat. § 152.01 subdiv. 15a(1)–(2).

      We therefore conclude that the district court erred in applying a 16-level

enhancement under U.S.S.G. § 2L1.2.

      4. Under our case law, the government may refuse to move for a

discretionary one-level downward adjustment under U.S.S.G § 3E1.1(b) solely on

the ground that the defendant has declined to waive his right to appeal. See United

States v. Johnson, 581 F.3d 994, 1002 (9th Cir. 2009). Gonzalez-Reyes’s

argument to the contrary is therefore foreclosed at present.

      SENTENCE VACATED AND REMANDED FOR RESENTENCING.




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