                                                                            FILED
                            NOT FOR PUBLICATION                              APR 15 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50166

              Plaintiff - Appellee,              D.C. No. 3:08-cr-04380-GT-1

  v.
                                                 MEMORANDUM*
VICTOR DANIEL GARCIA, AKA Victor
Juan Lopez,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                Gordon Thompson, Senior District Judge, Presiding

                        Argued and submitted April 6, 2015
                               Pasadena California

Before: SILVERMAN and BEA, Circuit Judges and DONATO,** District Judge.

       Victor Garcia appeals the district court’s revocation of supervised release

following a new conviction for misdemeanor illegal entry in violation of 8 U.S.C.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable James Donato, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
§ 1325(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, reverse the

revocation of supervised release, vacate, and remand.

      Garcia argues that there was insufficient evidence to establish that he was

found in the United States in violation of 8 U.S.C. § 1326(a). To prove that Garcia

was found after deportation in violation of § 1326(a) and his supervised release

conditions, the government had to prove by a preponderance of the evidence that

he entered free from official restraint. United States v. Muniz-Jaquez, 718 F.3d

1180, 1182-83 (9th Cir. 2013); United States v. King, 608 F.3d 1122, 1129 (9th

Cir. 2010). Garcia argues, and the government does not dispute, that the district

court erred when it considered the probable cause statement from the underlying §

1325(a) criminal complaint to decide official restraint. We agree. The district

court improperly considered the document over the defense objections without

considering whether the government could show good cause for not producing the

witnesses. United States v. Perez, 526 F.3d 543, 548 (9th Cir. 2008).

      Garcia’s conviction under 8 U.S.C. § 1325(a) does not establish by a

preponderance of the evidence that Garcia was free from official restraint. Garcia

pleaded guilty to a criminal complaint charging him with violating 8 U.S.C. §

1325(a)(1) and (a)(2). But only an (a)(1) violation would establish Garcia was free

from official restraint; an (a)(2) violation does not have the same element. See


                                          2
United States v. Oscar, 496 F.2d 492, 493-94 (9th Cir. 1974). And Garcia’s guilty

to plea to an (a)(1) violation and an (a)(2) violation, in the conjunctive, establishes

only that Garcia violated (a)(1) or (a)(2). C.f. United States v. Lee, 704 F.3d 785,

789 (9th Cir. 2012) (rejecting the government’s argument that the defendant’s

“plea to the conjunctively phrased charging document establishes that he pled

guilty to all of the conduct charged.”); Malta-Espinoza v. Gonzales, 478 F.3d 1080,

1082-83 (9th Cir. 2007) (holding that a guilty plea to a complaint charging

conjunctively multiple violations of a statute does not establish the defendant was

guilty under a specific sub-section of the statute). Without more evidence, the

government could not establish by a preponderance of the evidence that Garcia was

convicted under (a)(1).

      There is insufficient evidence in the record to establish that Garcia was

found in violation of 8 U.S.C. § 1326(a). We reverse the revocation of supervised

release, vacate the sentence, and remand.

      REVERSED, VACATED, AND REMANDED.




                                            3
