                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 28 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10291

              Plaintiff-Appellee,                D.C. No.
                                                 4:14-cr-02029-CKJ-CRP-1
 v.

MARCO SANCHEZ-FERNANDEZ,                         MEMORANDUM*
AKA Marcos Fernandes Sanchez, AKA
Marcos Sanchez-Fernandez, AKA Rene
Sanchez-Flores,

              Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                    Argued and Submitted September 13, 2016
                            San Francisco, California

Before: W. FLETCHER, CHRISTEN, and FRIEDLAND, Circuit Judges.

      Marco Sanchez-Fernandez appeals from his sentence for illegal reentry, in

violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and

we reverse and remand.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      The district court concluded that Sanchez-Fernandez’s prior conviction for

possession of narcotics for sale in violation of Arizona Revised Statute § 13-

3408(A)(2) was a “drug trafficking offense” under United States Sentencing

Guidelines (U.S.S.G.) § 2L1.2(b)(1)(A)(i), and applied a 16-level enhancement.

That Arizona statute is not a categorical match with the federal generic definition

because it criminalizes possession for sale of certain substances that are not

federally controlled. See Mellouli v. Lynch, 135 S. Ct. 1980, 1990–91 (2015); see

also United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir. 2012) (holding that

a California statute criminalizing possession or purchase of non-federally

controlled substances was categorically broader than the definition of “drug

trafficking offense” under U.S.S.G. § 2L1.2). When Sanchez-Fernandez was

sentenced, neither the district court nor the parties had the benefit of Mathis v.

United States, 136 S. Ct. 2243 (2016). Because an Arizona jury would not be

required to find which narcotic drug a defendant possessed to render a conviction

for § 13-3408(A)(2), see Rev. Ariz. Jury Instructions (Criminal), 34.082 (3d ed.),

the statue is indivisible. See Mathis, 136 S. Ct. at 2256–57; Lopez-Valencia v.

Lynch, 798 F.3d 863, 869 (9th Cir. 2015). The district court—not having been put

on notice of the issue by an objection on this ground—committed plain error by

applying a sentencing enhancement based on Sanchez-Fernandez’s conviction


                                           2
under this statute. See Mathis, 136 S. Ct. at 2257. We reverse the sentence

imposed by the district court and remand for resentencing without the

enhancement. We need not reach Sanchez-Fernandez’s other arguments in light of

our reversal on this ground.

REVERSED and REMANDED.




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