                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 10-10403
                 Plaintiff-Appellee,
                                            D.C. No.
                 v.                      3:09-cr-00193-
                                            VRW-1
JASON LEE,
                Defendant-Appellant.
                                           OPINION


      Appeal from the United States District Court
        for the Northern District of California
      Vaughn R. Walker, District Judge, Presiding

                Argued and Submitted
     February 13, 2012—San Francisco, California

               Filed December 28, 2012

    Before: Sidney R. Thomas, Raymond C. Fisher,
          and Sandra S. Ikuta, Circuit Judges.

               Opinion by Judge Fisher
2                     UNITED STATES V. LEE

                           SUMMARY*


                          Criminal Law

    The panel vacated a sentence and remanded in a case in
which the district court sentenced the defendant as a career
offender under U.S.S.G. § 4B1.1 after concluding that his two
prior convictions under California Health & Safety Code
§ 11352(a) qualified as controlled substance offenses.

    Applying the modified categorical approach, the panel
held that the record is inconclusive as to whether the
defendant’s San Francisco § 11352(a) conviction was a
controlled substance offense, where one of the theories
charged in the conjunctively-phrased charging document –
transportation of cocaine – would not qualify.

    Regarding the defendant’s Alameda County § 11352(a)
conviction, the panel held that neither the sentencing court’s
failure to state on the record special findings regarding
probation eligibility, nor an abstract of judgment reciting the
name of the violated statute, undermines the proof of the
defendant’s conviction for selling or offering to sell cocaine
base, where the indictment explicitly charged the defendant
with “sell[ing] or offer[ing] to sell” cocaine base, and the
minute order from the change of plea hearing states that the
defendant pled guilty to the violation of § 11352(a) “as
charged in the indictment.”




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   UNITED STATES V. LEE                     3

   The panel remanded for the district court to consider
whether the defendant’s convictions under California Penal
Code §§ 69 and 243.1 constitute predicate offenses that, in
conjunction with his Alameda County conviction, would
qualify him as a career offender.


                         COUNSEL

Ethan A. Balogh (argued), Coleman & Balogh LLP, San
Francisco, California; and Benjamin L. Coleman, Coleman &
Balogh LLP, San Diego, California, for Defendant-Appellant.

Melinda Haag, United States Attorney; Barbara J. Valliere,
Chief, Appellate Division, Assistant United States Attorney;
Andrew P. Caputo and Laurie Kloster Gray (argued),
Assistant United States Attorneys, San Francisco, California,
for Plaintiff-Appellee.


                         OPINION

FISHER, Circuit Judge:

    We consider whether the district court erred by sentencing
Jason Lee as a career offender under U.S. Sentencing
Guidelines Manual § 4B1.1 based on his two prior
convictions under California Health and Safety Code
§ 11352(a). We hold that the government has not satisfied its
burden of showing that one of these two convictions qualifies
as a predicate offense and remand for the district court to
reconsider Lee’s career offender status.
4                  UNITED STATES V. LEE

                              I.

    Jason Lee was convicted of distributing crack cocaine in
violation of 21 U.S.C. § 841. The district court sentenced
Lee as a career offender under U.S. Sentencing Guidelines
Manual § 4B1.1 after concluding that his two prior
convictions under California Health & Safety Code
§ 11352(a) qualified as controlled substance offenses. The
guidelines recommended 262 to 327 months’ imprisonment.
After considering the 18 U.S.C. § 3553(a) factors, the court
sentenced Lee to 180 months.

   Lee timely appeals, arguing that the district court erred
when it classified him as a career offender.

                             II.

   We review de novo a district court’s interpretation of the
guidelines and its determination that a defendant qualifies as
a career offender under § 4B1.1. See United States v.
Mitchell, 624 F.3d 1023, 1026 (9th Cir. 2010).

                             III.

    A defendant is a career offender if:

       (1) the defendant was at least 18 years old at
       the time he committed the instant offense of
       conviction; (2) the instant offense of
       conviction is a felony that is either a crime of
       violence or a controlled substance offense;
       and (3) the defendant has at least two prior
       felony convictions of either a crime of
       violence or a controlled substance offense.
                   UNITED STATES V. LEE                      5

U.S. Sentencing Guidelines Manual § 4B1.1(a). Lee contests
only the third requirement.

    To determine whether a defendant’s prior conviction
qualifies as a predicate offense, we apply the “categorical
approach” and “modified categorical approach” set forth in
Taylor v. United States, 495 U.S. 575 (1990). Under the
categorical approach, we “look only to the statute of
conviction.” United States v. Crawford, 520 F.3d 1072, 1078
(9th Cir. 2008) (citation omitted). We “compare the elements
of the statutory definition of the crime of conviction with a
federal definition of the crime to determine whether conduct
proscribed by the statute is broader than the generic federal
definition.” United States v. Gonzalez-Aparicio, 663 F.3d
419, 425 (9th Cir. 2011) (citation and internal quotation
marks omitted). “[E]ven the least egregious conduct the
statute [of conviction] covers must qualify.” Id. (alterations
in original) (citation and internal quotation marks omitted).

    If the statute is facially over-inclusive, we employ the
modified categorical approach. See Crawford, 520 F.3d at
1078. Under this approach, the prior conviction qualifies as
a career offender predicate offense only “if ‘documentation
or judicially noticeable facts . . . clearly establish that the
conviction is a predicate conviction for enhancement
purposes.’” Id. (alteration in original) (quoting United States
v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002) (en
banc)). When, as here, the prior conviction was based on a
guilty plea, our review is limited to the charging document,
plea agreement, transcript of the plea colloquy and
comparable judicial records. See id. “The government has
the burden to establish clearly and unequivocally that the
conviction was based on all of the elements of a qualifying
predicate offense.” Id. (quoting United States v. Kovac,
6                  UNITED STATES V. LEE

367 F.3d 1116, 1119 (9th Cir. 2004)) (internal quotation
marks omitted).

   We apply the categorical and modified categorical
approaches to Lee’s § 11352(a) convictions in turn.

A. Categorical Approach

    In 1998, Lee twice pled guilty to violating California
Health & Safety Code § 11352(a) – one violation occurred in
San Francisco, and the other in Alameda County. At the time
of his convictions, § 11352(a) provided that “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 [certain substances
specified in the California Uniform Controlled Substances
Act] shall be punished by imprisonment in the state prison for
three, four, or five years.” Cal. Health & Safety Code
§ 11352(a) (1998).

    The U.S. Sentencing Guidelines define “controlled
substance offense” as an offense “punishable by
imprisonment for a term exceeding one year, that prohibits
the manufacture, import, export, distribution, or dispensing of
a controlled substance (or a counterfeit substance) or the
possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export,
distribute, or dispense.” U.S.S.G. § 4B1.2.

    The government concedes that § 11352(a) encompasses
a broader range of conduct than the guidelines definition
because § 11352(a), for instance, criminalizes the
transportation of a controlled substance, which would not be
                   UNITED STATES V. LEE                      7

a controlled substance offense. The government thus agrees
that Lee’s convictions under § 11352(a) are not categorically
controlled substance offenses. See Crawford, 520 F.3d at
1078 (also noting the government’s concession that
§ 11352(a) “is too broad to qualify under the categorical
approach because [it] covers such a wide range of possible
behavior”).

B. Modified Categorical Approach

    The government argues that Lee’s two § 11352(a)
convictions nonetheless qualify as controlled substance
offenses under the modified categorical approach.

   i. San Francisco Conviction

    The government has proffered the following records to
establish that Lee’s San Francisco conviction was a controlled
substance offense:

   •   An information, count one of which charges that Lee
       “did wilfully 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 a controlled substance, to wit, COCAINE
       Schedule I.”

   •   Minute orders from Lee’s change of plea and
       sentencing hearings that indicate Lee pled guilty to
       count one.
8                     UNITED STATES V. LEE

The government’s sole argument is that Lee’s plea to the
conjunctively phrased charging document establishes that he
pled guilty to all of the conduct charged. Thus, Lee pled
guilty to selling a controlled substance, which would qualify
as a controlled substance offense. We recently rejected this
argument in Young v. Holder, 697 F.3d 976 (9th Cir. 2012)
(en banc). Considering a defendant’s plea to a count that also
recited § 11352(a) in the conjunctive, we held: “when either
‘A’ or ‘B’ could support a conviction, a defendant who pleads
guilty to a charging document alleging ‘A and B’ admits only
‘A’ or ‘B.’ Thus, when the record of conviction consists only
of a charging document that includes several theories of the
crime, at least one of which would not qualify as a predicate
conviction, then the record is inconclusive under the modified
categorical approach.” Id. at 988. Here, as in Young, at least
one of the theories charged – for instance, that Lee
transported cocaine – would not qualify as a predicate
offense. The record is thus inconclusive as to whether Lee’s
San Francisco § 11352(a) conviction was a controlled
substance offense, falling short of the government’s burden
to establish the predicate offense clearly and unequivocally.1




    1
      Young concerned eligibility for cancellation of removal in the
immigration context, where the burden is on the noncitizen to show that
his conviction was not for an aggravated felony. See Young, 697 F.3d at
988–90. The en banc court held that an inconclusive record of conviction
did not satisfy the noncitizen’s burden. See id. In the criminal context,
however, the burden is on the government to establish that a prior
conviction is a qualifying predicate offense, see Crawford, 520 F.3d at
1078, so an inconclusive record will not satisfy the government’s burden.
                      UNITED STATES V. LEE                              9

       ii. Alameda County Conviction

   The government relies on the following documents to
show that Lee’s Alameda County conviction under
§ 11352(a) was a controlled substance offense:

       •   An indictment charging that Lee “did then and there
           sell and offer to sell a controlled substance, to wit:
           cocaine base.”

       •   A court document, which appears to have followed
           Lee’s change of plea hearing, stating that Lee pled
           guilty to violating § 11352(a) “as charged in the
           Indictment.”

       •   A minute order, also stating that Lee pled guilty to
           violating § 11352(a) “as charged in the Indictment”
           and imposing a sentence that was suspended for a
           three-year probationary period.

These documents on their face establish that Lee pled guilty
to selling or offering to sell cocaine base – conduct that falls
squarely within the definition of controlled substance
offense.2 Lee acknowledges that this evidence would


   2
      Lee argues that “offer[ing] to sell” should not be considered a
controlled substance offense because it describes merely a solicitation
offense, citing United States v. Dolt, 27 F.3d 235, 240 (6th Cir. 1994)
(holding that a solicitation conviction does not qualify as a controlled
substance offense under the career offender guidelines), and United States
v. Liranzo, 944 F.2d 73, 79 (2d Cir. 1991) (holding that a defendant’s
conviction for criminal facilitation does not qualify as a controlled
substance offense). Under the law of this circuit, however, solicitation
qualifies as a controlled substance offense. See United States v. Shumate,
329 F.3d 1026, 1031–32 (9th Cir. 2003). As a three-judge panel, we are
10                   UNITED STATES V. LEE

ordinarily be sufficient to establish that a defendant pled
guilty to selling or offering to sell cocaine base. See United
States v. Snellenberger, 548 F.3d 699, 702 (9th Cir. 2008) (en
banc) (per curiam) (holding that a minute order can be relied
upon to prove that the defendant pled guilty to a particular
count in a charging document), overruled on other grounds
by Young, 697 F.3d at 979, 986–88. He argues, however, that
the court records here are internally inconsistent as to whether
he pled to a sales offense or a transportation offense, and thus
do not prove with sufficient certainty that he was convicted
of a qualifying offense.

    In particular, Lee focuses on the minute order that shows
he received only three years’ probation for his conviction.
California law provides that “probation shall not be granted
to, nor shall the execution or imposition of sentence be
suspended for, . . . [a]ny person who is convicted of violating
Section 11352 of the Health and Safety Code by selling or
offering to sell cocaine base.”            Cal. Penal Code
§ 1203.073(b)(7). A person convicted of selling or offering
to sell cocaine base

        may be granted probation only in an unusual
        case where the interests of justice would best
        be served. When probation is granted in such
        a case, the court shall specify on the record
        and shall enter in the minutes the
        circumstances indicating that the interests of
        justice would best be served by such a
        disposition.




bound by this precedent.
                    UNITED STATES V. LEE                       11

Id. § 1203.073(a) (emphasis added).3 Under this statute, if
Lee had been convicted of selling or offering to sell cocaine
base, he would have been ineligible for probation unless the
sentencing court made the requisite specific findings on the
record and entered them in the minutes. Although the records
make clear that Lee received probation, none of them
indicates that the sentencing court made any such specific
findings.

    Lee argues that the absence of special findings creates an
ambiguity regarding the crime to which he pled. According
to Lee, there are two possibilities: he might have pled to a
sales offense, in which case the sentencing court committed
procedural error by sentencing him to probation without
making the necessary findings on the record; or he might
have actually pled to something else, such as a transportation
offense, for which he would have been eligible for probation
without special findings. See People v. Bartlett, 276 Cal.
Rptr. 460, 465 (Ct. App. 1990) (holding that
§ 1203.073(b)(1)’s restriction on probation for selling cocaine
does not apply to transportation offenses).

    Lee’s attempt to manufacture an ambiguity is not
convincing. The indictment explicitly charged Lee with
“sell[ing] or offer[ing] to sell” cocaine base, not transporting
cocaine. The minute order from Lee’s change of plea hearing
states that Lee pled guilty to the violation of § 11352(a) “as
charged in the indictment.” The phrase “as charged” is
“critical,” United States v. Vidal, 504 F.3d 1072, 1087 (9th
Cir. 2007) (en banc), because it means that the factual
allegations stated in the indictment are incorporated into

  3
    These provisions of § 1203.073 were the same in 1998, when Lee
received his probation.
12                 UNITED STATES V. LEE

Lee’s guilty plea. Although the sentencing court granted Lee
probation without making special findings on the record, it
was more likely a procedural oversight during sentencing
rather than the result of Lee having pled to something
different from what was “charged in the indictment.”

    Lee also cites to an abstract of judgment as creating doubt
about the crime of conviction. The abstract of judgment is a
court form that records the judgment of conviction, with
boxes for the code, section number and crime of conviction.
Although this form lists the crime as “TRANSPORT OR
SELL NARCOTIC CONTROLLED SUBSTANCE,” the
format of the form suggests this phrasing is simply a
recitation of the name of the violated statute, not an attempt
to describe the conduct to which Lee particularly pled. It
does not create ambiguity concerning the conduct to which
Lee pled, particularly in the face of the indictment and the
change of plea minute order.

    In sum, neither the sentencing court’s failure to state
special findings on the record nor the abstract of judgment
undermines the proof of Lee’s conviction for selling or
offering to sell cocaine base. Accordingly, the Alameda
County conviction for violation of California Health and
Safety Code § 11352(a) qualifies as a predicate controlled
substance offense.

                             IV.

    We reject Lee’s remaining argument that the district court
abused its discretion by refusing to provide a jury instruction
on entrapment. The district court found that Lee presented no
evidence of inducement or lack of predisposition. Lee did not
introduce any evidence that the government pressured him to
                  UNITED STATES V. LEE                    13

sell cocaine or that he was reluctant to engage in the crime.
Thus, the court’s finding was not “illogical, implausible, or
without support in inferences that may be drawn from the
record.” United States v. Hinkson, 585 F.3d 1247, 1263 (9th
Cir. 2009) (en banc).

                             V.

    Because Lee’s San Francisco conviction does not qualify
as a predicate offense, we vacate Lee’s sentence and remand
for resentencing. On remand, the district court should
consider whether Lee’s convictions under California Penal
Code §§ 69 and 243.1 constitute predicate offenses that, in
conjunction with Lee’s Alameda County conviction, would
qualify Lee as a career offender.

   SENTENCE VACATED and REMANDED.
