                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 10-4226


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

MARVIN MAROQUIN-BRAN,

                 Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.  Louise W. Flanagan,
District Judge. (7:07-cr-00107-FL-1)


Submitted:     September 8, 2011           Decided:   October 13, 2011


Before WILKINSON, MOTZ, and DAVIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant.   George E. B. Holding,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, Eric Evenson, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Marvin          Maroquin-Bran              returns           to     this      court       to

challenge       the     application              of      a     sixteen-level              sentencing

enhancement       under          § 2L1.2(b)(1)(A)               of        the       United     States

Sentencing Guidelines (“U.S.S.G.”).                            Given our recent decision

in United States v. Vann, No. 09-4298 (4th Cir. Oct. 11, 2011)

(en banc), we hold that Maroquin-Bran’s prior conviction does

not support application of the enhancement.                                        Accordingly, we

vacate    the    judgment         of       the    district          court       and      remand     for

resentencing.



                                                  I.

            We     previously              considered          Maroquin-Bran’s               case     in

United    States       v.    Maroquin-Bran,              in     which         we    described        the

circumstances         leading      to      his    1989       California            conviction,       his

resulting deportation, his subsequent illegal reentry, and his

most recent offense.              587 F.3d 214, 216 (4th Cir. 2009).                               After

clarifying      the    requirements              of    U.S.S.G.       §       2L1.2(b)(1)(A),         we

determined that Maroquin-Bran’s 1989 guilty plea to a violation

of   California        Health          &    Safety           Code    §        11360(a)       was     not

categorically          a      “drug          trafficking              offense”            under        §

2L1.2(b)(1)(A).             We     reasoned            that     although           the    California

statute     “prohibits           two       offenses:           sale        of       marijuana        and

transportation of marijuana,” only the “former properly triggers

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the   sixteen-level       sentencing      enhancement.”          Id.     at     218. *

Accordingly,      we   remanded   the    case   to    the    district    court     to

examine     the   Shepard-approved       documents     and    “determin[e]        the

character of” Maroquin-Bran’s offense.                Id. (citing Shepard v.

United States, 544 U.S. 13, 16 (2005)).

             On remand the Government offered three documents for

the court’s consideration:           (1) the criminal information, which

in count 1 charged a violation of § 11360(a) and stated that

Maroquin-Bran      “did   willfully     and   unlawfully     transport,       import

into the State of California, sell, furnish, administer, and

give away, and offer to transport, import into the State of

California,       sell,   furnish,      administer,    and     give     away,     and

attempt to import into the State of California and transport

marijuana”; (2) the abstract of judgment, which indicated that

Maroquin-Bran pled guilty to § 11360 “sale/TRANSP MARIJUANA” on

3/9/89; and (3) a four page compilation of case records, which

      *
          Cal. Health & Safety Code § 11360(a) provides that:

      Except as otherwise provided by this section or as
      authorized by law, every person who transports,
      imports    into    this   state,    sells,    furnishes,
      administers, or gives away, or offers to transport,
      import into this state, sell, furnish, administer, or
      give away, or attempts to import into this state or
      transport   any   marijuana   shall   be   punished   by
      imprisonment in the state prison for a period of two,
      three or four years.

Cal. Health & Safety Code § 11360(a) (West 2011).


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indicated    that    Maroquin-Bran          pled    guilty     to   count    1   of    the

information –- a violation of “§ 11360(a) H&S.”                       The record does

not contain a transcript of the guilty plea.

             The    district     court       observed       that    the     information

charged   Maroquin-Bran         in    the   conjunctive,       replacing      the     word

“or” in the statute with the word “and.”                       Based on this, the

court concluded that “it need not look any further to determine

that [Maroquin-Bran]’s California conviction” was for the sale

of    marijuana      and    thus        qualified       for     the       sixteen-level

enhancement.



                                            II.

             In    Vann,   we    recently         confronted    a   similar      factual

scenario.     There the defendant pled guilty to an indictment that

conjunctively charged violations of different subsections of a

North Carolina statute.              Only one of those subsections, however,

qualified as an ACCA predicate offense.                    We held that the charge

and   plea   alone     provided        no   basis     to    hold    the     defendant’s

“convictions ‘necessarily’ rest[ed]” on the qualifying offense.

See Vann, slip op. at 9 (per curiam).

             The documents proffered by the Government in the case

at hand are equally unedifying.                     Count 1 of the information

tracks the language of the California statute, except in the

conjunctive.       As we held in Vann, “it is settled that a charging

                                            4
document must allege conjunctively the disjunctive components of

an underlying statute.”                   Vann, slip op. at 6 (per curiam); see

also In re Bushman, 463 P.2d 727, 732 (Cal. 1970), disapproved

of on other grounds, People v. Lent, 541 P.2d 545, 548 n.1 (Cal.

1975)       (“When    a    statute        .    .    .    lists    several    acts     in   the

disjunctive,         any    one      of       which     constitutes    an    offense,      the

complaint, in alleging more than one of such acts, should do so

in    the    conjunctive        to    avoid         uncertainty.”).         Moreover,      the

abstract      of     judgment     and         compilation    of    case     records    simply

refer to the charge or the statute.                          None of these documents

provide any basis to conclude that Maroquin-Bran’s conviction

was “necessarily” for the qualifying offense, i.e. a drug sale

and   not     just    transportation               of   illegal   drugs.      Accordingly,

application of the sixteen-level enhancement was inappropriate.



                                                III.

               For the foregoing reasons, we vacate the judgment of

the district court and remand the case for resentencing.



                                                                    VACATED AND REMANDED




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