                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 03 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                       No. 11-10241

              Plaintiff - Appellee,             D.C. No. 4:10-cr-03324-DCB-JJM-1

  v.
                                                MEMORANDUM *
REMEDIOS CATALAN-
ENCARNACION, AKA Remedios
Catalan, AKA Irma Catalan-Encarnacion,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                    George C. Steeh, District Judge, Presiding **

                        Argued and Submitted May 18, 2012
                             San Francisco, California

Before: CLIFTON and N.R. SMITH, Circuit Judges, and SELNA, District Judge.***




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable George C. Steeh, District Judge for the U.S. District
Court for Eastern Michigan, presiding as a visiting judge.
      ***    The Honorable James V. Selna, District Judge for the U.S. District
Court for Central California, sitting by designation.
      Remedios Catalan-Encarnacion appeals from her sentence for illegally

reentering this country after previous deportation in violation of 8 U.S.C. § 1326.

We conclude that the records of Catalan’s prior conviction for “sale of a controlled

substance” under California Health and Safety Code § 11379(a) do not establish

that she was convicted of a “drug trafficking offense” for the purposes of

§ 2L1.2(b)(1)(B) of the Sentencing Guidelines. We therefore vacate Catalan’s

sentence and remand for re-sentencing.

      A conviction for violation of California Health and Safety Code § 11379(a)

does not categorically qualify as a “drug trafficking offense” under the Sentencing

Guidelines. United States v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004),

overruled on other grounds by United States v. Snellenberger, 548 F.3d 699, 702

(9th Cir. 2008) (en banc). Section 11379(a) allows the conviction of any 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 controlled substances.

Some of this conduct qualifies as drug trafficking under § 2L1.2(b)(1)(B), but some

does not. Navidad-Marcos, 367 F.3d at 908 (citing United States v.

Rivera-Sanchez, 247 F.3d 905 (9th Cir.2001) (en banc)). In particular, transporting

drugs for personal use or offering to traffic in drugs does not qualify. Id.


                                            2
      Catalan pled guilty to a count that alleged in the conjunctive that she “did

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, methamphetamine.” See Cal. Health &

Safety Code § 11379(a). We have held that a plea of guilty to a count that merely

re-states in the conjunctive all of the alternative ways a defendant may violate a

disjunctively-phrased statute does not count as an admission of all of the conduct

alleged. Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1082 (9th Cir. 2007).1

Catalan’s plea therefore does not clarify whether she admitted to a drug trafficking

offense such as importing drugs for sale or to a non-drug trafficking offense such as

offering to transport drugs for personal use.

      The government points out that as part of Catalan’s plea agreement, the

prosecution apparently dismissed Count 2, which also charged Catalan under


      1
         In Snellenberger, we concluded that a defendant who pled guilty to a
burglary count that charged him with “enter[ing] an inhabited dwelling house and
trailer coach and inhabited portion of a building” thereby admitted to entering a
dwelling. 548 F.3d at 701 (alteration in original). The charge in Snellenberger,
however, unlike the charges in Malta-Espinoza and this case, did not re-state all of
the different ways the defendant could violate the relevant statute, but picked out
the “dwelling house,” “trailer coach,” and “inhabited portion” variants from a list
that included at least a dozen other variants. Id.; California Health & Safety Code
§ 459.

                                            3
§ 11379(a), but which alleged only that she transported methamphetamine, not the

other variants alleged in Count 1. The government argues that the dismissal of

Count 2 means that Catalan’s plea to Count 1 could not have admitted transport

alone, but must have admitted some form of more serious misconduct. Although

there may be some logic in that inference, it is far from certain that the state

prosecutors drafted the two counts to be logically and mutually exclusive. Count 1

did allege unlawful “transport,” after all. If the counts overlapped, dismissal of

Count 2 does not necessarily tell us anything about Count 1. And even if we were

to agree that the dismissal of Count 2 rules out the possibility that Catalan pled

guilty only to transport, that does not rule out the possibility that Catalan admitted

to “offer[ing] to transport, import into the state of California, sell, furnish,

administer, [or] give away” methamphetamine, which also does not qualify as “drug

trafficking.” Navidad-Marcos, 367 F.3d at 908. At best, therefore, the dismissal of

Count 2 shows only that Catalan was probably convicted of drug trafficking. The

modified categorical approach requires more certainty. See, e.g., United States v.

Aguila-Montes de Oca, 655 F.3d 915, 946 (9th Cir. 2011) (en banc).

       We conclude that the records produced for the purposes of Catalan’s

sentencing do not clarify whether she was convicted of a drug trafficking offense,

and that the district court therefore erred by applying a 16-level sentencing


                                             4
enhancement under § 2L1.2(b)(1)(A) of the Sentencing Guidelines. We vacate

Catalan’s sentence and remand for re-sentencing.

      SENTENCE VACATED AND REMANDED.




                                        5
