USA v. Jose Leal-Vega

Filing

FILED OPINION (ANDREW J. KLEINFELD, MILAN D. SMITH, JR. and ALGENON L. MARBLEY) REVERSED AND REMANDED. Judge: MDS Authoring, FILED AND ENTERED JUDGMENT. [8194772]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
JOSE DAVID LEAL-VEGA,
Defendant-Appellee.





No. 11-50065
D.C. No.
2:10-CR-00756PSG-1
OPINION

Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted
April 11, 2012—Pasadena, California
Filed May 30, 2012
Before: Andrew J. Kleinfeld and Milan D. Smith, Jr.,
Circuit Judges, and Algenon L. Marbley, District Judge.*
Opinion by Judge Milan D. Smith, Jr.

*The Honorable Algenon L. Marbley, District Judge for the United
States District Court for the Southern District of Ohio, sitting by designation.

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COUNSEL
Peter William Baldwin, Curtis Arthur Kin, and Jean-Claude
Andre (argued), Office of the United States Attorney, Los
Angeles, California, for plaintiff-appellant United States of
America.
Carlton Gunn (argued), Kaye McLane & Bednarski, LLP,
Pasadena, California, for defendant-appellee Jose Leal-Vega.

OPINION
M. SMITH, Circuit Judge:
The United States of America (Government) appeals the
thirty-months sentence imposed on Jose Leal-Vega for illegal
reentry following deportation. The district court declined to
apply a sixteen-level enhancement pursuant to United States

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Sentencing Guidelines, U.S.S.G. § 2L1.2, for Leal-Vega’s
prior conviction under California Health & Safety Code
§ 11351. The Government contends that the sixteen-level
enhancement should have been applied because Section
11351 is categorically a “drug trafficking offense” under
U.S.S.G. § 2L1.2. Alternatively, the Government contends
that even if Section 11351 does not categorically qualify,
Leal-Vega’s conviction qualifies as a “drug trafficking
offense” applying the modified categorical analysis because
the substance involved was tar heroin, a substance covered by
the federal Controlled Substances Act (CSA), 21 U.S.C. § 801
et seq.
We hold that a conviction under Section 11351 does not
qualify categorically as a “drug trafficking offense” for the
purposes of U.S.S.G. § 2L1.2. However, we hold that LealVega’s prior Section 11351 conviction qualifies as a “drug
trafficking offense” using the modified categorical approach,
and we reverse and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
On March 3, 1999, Leal-Vega was charged in Count 1 of
a felony complaint with “committ[ing] a violation of Health
and Safety Code section 11351, a felony, in that on or about
March 1, 1999, in the County of Riverside, State of California, [he] did wilfully and unlawfully possess for sale and purchase for purpose of sale a controlled substance, to wit, TAR
HEROIN.” He was concurrently charged with another count.
Leal-Vega pled guilty to Count 1, and the second count was
dismissed.
On August 23, 2010, Leal-Vega pled guilty to illegal reentry following deportation, under 8 U.S.C. § 1326. The information charged Leal-Vega with a prior 1999 felony
conviction for possession of a controlled substance for sale,
in violation of California Health & Safety Code § 11351.

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In the Presentence Report (PSR), the Probation Office recommended a sixteen-level enhancement based on the prior
conviction, which it categorized as a “drug trafficking
offense.” Leal-Vega objected to this categorization, arguing
that Section 11351 is categorically broader than the Sentencing Guidelines’s definition of a “drug trafficking offense.”
After initially arguing that Section 11351 was a categorical
fit, the Government later conceded that the statute was too
broad. Prior to sentencing, the district court requested more
information for the purpose of conducting the modified categorical analysis. The Government subsequently retracted its
concession regarding the inapplicability of the categorical
analysis to Section 11351, and claimed that since the Sentencing Guidelines do not incorporate the CSA’s definition of
“controlled substance,” Section 11351 is not overbroad, and
that the statute is a categorical fit.
The district court concluded that Section 11351 was not
categorically a “drug trafficking offense,” and also found that
the record of conviction for Leal-Vega’s 1999 conviction was
insufficient to establish a modified categorical fit. Thus, the
district court only applied a four-level sentence enhancement,1
and imposed a sentence of thirty months imprisonment, based
on a calculated Guidelines range of twenty-four to thirty
months. The Government timely appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291.
We review de novo the district court’s interpretation of the
Sentencing Guidelines. United States v. Cantrell, 433 F.3d
1269, 1279 (9th Cir. 2006). We review the district court’s
application of the Sentencing Guidelines for abuse of discretion. Id.
1

This four-level enhancement is based on other prior felony convictions,
which are not at issue in this appeal.

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DISCUSSION
[1] The crime of unlawfully entering the United States
under 8 U.S.C. § 1326 carries a base offense level of 8 under
the Sentencing Guidelines. U.S.S.G. § 2L1.2; see United
States v. Ballesteros-Ruiz, 319 F.3d 1101, 1102 (9th Cir.
2003). A defendant’s base offense level may be increased by
sixteen levels if he has a prior conviction for a “drug trafficking offense,” and the sentence on the prior conviction
exceeded thirteen months. U.S.S.G. § 2L1.2(b)(1)(A). The
Sentencing Guidelines define “drug trafficking offense” as:
[A]n offense under federal, state, or local law that
prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled
substance (or a counterfeit substance) or the possession of a controlled substance.
Id. § 2L1.2, Application Notes (1)(B)(iv) (emphasis added).
[2] We apply the categorical and modified categorical
approaches described in Taylor v. United States, 495 U.S. 575
(1990), to determine whether a defendant’s prior conviction
satisfies U.S.S.G. § 2L1.2(b)(1)(A). United States v.
Pimentel-Flores, 339 F.3d 959, 968 (9th Cir. 2003). We first
apply the categorical analysis. Under this approach, we “do
not examine the facts underlying the prior offense, but look
only to the fact of conviction and the statutory definition of
the prior offense.” Id. at 967 (quoting United States v.
Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir. 2002) (en
banc), superseded on other grounds by U.S.S.G. § 2L.1, CMT
n. 4 (2002)). If the statutory definition of the prior offense
criminalizes conduct that would not constitute a “drug trafficking offense,” then the statute is not a categorical fit, and
we must consider whether the prior conviction may still be
used for a sentencing enhancement using the modified categorical approach. Id. We may not use the conviction for a sentencing enhancement unless “the record includes

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documentation or judicially noticeable facts that clearly establish that the conviction is a predicate for enhancement purposes.” Id. (quoting Corona-Sanchez, 291 F.3d at 1203).
Finally, if both the statute and the documents containing judicially noticeable facts would allow the defendant to be convicted of an offense that would not be a “drug trafficking
offense,” then the sentencing enhancement may not be
applied. See Corona-Sanchez, 291 F.3d at 1203-04.
[3] The predicate offense here, California Health & Safety
Code § 11351, criminalizes “possess[ion] for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified
in paragraph (14), (15), or (20) of subdivision (d) of Section
11054, or specified in subdivision (b) or (c) of Section 11055,
or specified in subdivision (h) of Section 11056, or (2) any
controlled substance classified in Schedule III, IV, or V which
is a narcotic drug.” Cal. Health & Safety Code § 11351.
I.

Categorical Analysis

Applying the initial step in the Taylor analysis, we first
determine whether Section 11351 categorically qualifies as a
“drug trafficking offense,” as defined under the Sentencing
Guidelines. In particular, we must determine how to interpret
the term “controlled substance,” as it is used in the Sentencing
Guidelines definition. If we construe the term as being tied to
the federal definition of controlled substances from the CSA,
Section 11351 cannot qualify categorically because it criminalizes possession or purchase of substances that are not
included in the CSA. See infra. However, were we to adopt
the definition of “controlled substance” urged by the
Government—that it takes on its ordinary, common sense
meaning, as a drug regulated by law—Section 11351 would
automatically qualify categorically.
While we have not applied the Taylor categorical analysis
to determine whether various California drug statutes would

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qualify as a “drug trafficking offense” in the Sentencing
Guidelines context, we have found occasion to do so in the
immigration framework. First, in Ruiz-Vidal v. Gonzalez, 473
F.3d 1072 (9th Cir. 2007), we held that California Health &
Safety Code § 11377 could not serve as a predicate offense
for removal under 8 U.S.C. § 1227(a). We stated that there
was no categorical fit because “California law regulates the
possession and sale of numerous substances that are not similarly regulated by the CSA.” Id. at 1078. Next, in Mielewczyk
v. Holder, 575 F.3d 992, 995 (9th Cir. 2009), we held that
California Health & Safety Code § 11352 was categorically
too broad, under 8 U.S.C. § 1227(a). We held the same in SYong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2010), addressing California Health & Safety Code § 11379.
[4] Were we to interpret “drug trafficking offense” in the
sentencing context to be consistent with our interpretation in
the immigration context, i.e., that its meaning is defined by
the CSA, Section 11351 would be too broad to categorically
qualify as a “drug trafficking offense.” The statute at issue in
Mielewczyk, California Health & Safety Code § 11352(a), differs from Section 11351 only in that it includes cocaine base.
Compare Cal. Health & Safety Code § 11351 (listing numerous subsections and subparagraphs of controlled substances
schedule statutes) with id. § 11352(a) (listing same subsections and subparagraphs, with one addition, subparagraph
(f)(1) of Section 11054); see id. § 11054(f)(1) (cocaine base).
Cocaine base was not the reason we found Section 11352 to
be too broad in Mielewczyk, because cocaine base is covered
by the CSA. See 21 U.S.C. § 841(b)(1)(A)(iii), (b)(1)(B)(iii).
Thus, like Section 11352, Section 11351 also criminalizes
possession or purchase of substances that are not covered
under the CSA.
We acknowledge that our holdings in the immigration context do not definitively resolve the issue we address here
because the text of the immigration statute 8 U.S.C. § 1227(a)

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differs from the text of the Sentencing Guidelines we interpret. The immigration statutes make deportable:
Any alien who at any time after admission has been
convicted of a violation of (or a conspiracy or
attempt to violate) any law or regulation of a State,
the United States, or a foreign country relating to a
controlled substance (as defined in section 802 of
Title 21), other than a single offense involving possession for one’s own use of 30 grams or less of
marijuana.
8 U.S.C. § 1227(a)(2)(B)(i). Thus, the text of the immigration
statute states that the “controlled substance” must be one that
is “defined in section 802 of Title 21,” which is the CSA.
In contrast, the pertinent language in the Sentencing Guidelines differs from that of 8 U.S.C. § 1227(a)(2)(B)(i) because
the term “controlled substances” is not therein expressly
linked to the CSA. The Government asks us to find that this
lack of explicit incorporation of the CSA into the Sentencing
Guidelines means that the Sentencing Guidelines do not limit
the definition of “controlled substances” to the substances
found in the CSA. In support of its position, the Government
points to other portions of the Sentencing Guidelines which
explicitly incorporate federal statutory definitions. See, e.g.
U.S.S.G. § 2L1.2 Application Notes (1)(B)(i) (defining “alien
smuggling offense” to refer to the meaning in 8 U.S.C.
§ 1101(a)(43)(N); id. Application Notes (1)(B)(v) (defining
“firearms offense” to refer to firearms as described in 18
U.S.C. § 921). The Government also contends that the history
of the drafting of the Sentencing Guidelines counsels against
incorporation of the CSA into the definition of “controlled
substances.” We reject these arguments, which are rooted in
canons of statutory interpretation and presumptions of Congressional intent under Russello v. United States, 464 U.S. 16
(1983), because accepting the Government’s position would
undermine the reasoning underlying the categorical analysis

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in the first place, as articulated in Taylor, as well as the purpose of the Sentencing Guidelines.
Taylor aspires to “a single national” definition of a given
crime under its categorical approach and we have recognized
that the definition should include generic elements of the
offense at issue. See Estrada-Espinoza v. Mukasey, 546 F.3d
1147, 1157-58 (9th Cir. 2008) (en banc).
The underlying theory of Taylor is that a national
definition of the elements of a crime is required so
as to permit uniform application of federal law in
determining the federal effect of prior convictions
. . . . Without defined elements a comparison of the
state statute with a federally-defined generic offense
is not possible.
Id. (internal citations and footnotes omitted). The purpose of
the generic definition as envisioned in Taylor was to ensure
that there is some “uniform definition independent of the
labels employed by various [s]tates’ criminal codes.” United
States v. Aguila-Montes de Oca, 655 F.3d 915, 920 (9th Cir.
2011) (en banc) (quoting Taylor, 495 U.S. at 589). Applying
these principles to the issue before us, the meaning of “drug
trafficking offense” should not “depend on the definition
adopted by the State of conviction.” Taylor, 495 U.S. at 589;
see also United States v. Hudson, 618 F.3d 700, 703-05 (7th
Cir. 2010) (“There is no reason why the guidelines [sic] must
be restricted to a particular state’s concept of what is meant
by that term.”).
The Government contends that its position is still viable
notwithstanding Taylor’s focus. “The Guidelines include a
specific national definition for ‘drug trafficking offense’—the
only question is whether the phrase ‘controlled substance’
within that definition should take its broad ordinary meaning
or should incorporate the specific list of the substances . . .
under the CSA.” This contention fails because defining the

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term “controlled substance” to have its ordinary meaning of
a drug regulated by law would make what offenses constitute
a drug offense necessarily depend on the state statute at issue.
The criminal act at issue here—possession or purchase of
a controlled substance—is a crime because California defined
certain substances, such as tar heroin, as being controlled.
This crime is of a different nature than certain other crimes
for which the courts have provided generic definitions. For
example, in Taylor, the Court defined “burglary” to be any
crime with the elements of “unlawful or unprivileged entry
into, or remaining in, a building or other structure, with intent
to commit a crime.” Taylor, 495 U.S. at 598. Thus, even if a
state named a crime with these elements something different
than “burglary,” the generic definition of the crime of “burglary” would still be met as long as the crime, under whatever
name, required those elements. On the other hand, what
makes the act of possessing or purchasing a substance for sale
illegal under Section 11351 is the fact that the substance must
be “controlled,” under state law. Thus, under the Government’s position, the definition of what is a “controlled substance” is necessarily dependent on the state law.
The Government next suggests that we can properly incorporate the ordinary meaning of the term “controlled substance” into Section 11351 in the same way that courts have
adopted an ordinary meaning for the term “counterfeit substance.” Several circuits have found the meaning of “counterfeit substance” to be based on its plain, ordinary meaning,
without reference to the CSA, even though the term “counterfeit substance” is also defined in the CSA. See, e.g., United
States v. Hudson, 618 F.3d 700, 703-05 (7th Cir. 2010);
United States v. Mills, 485 F.3d 219, 222-26 (4th Cir. 2007);
United States v. Robertson, 474 F.3d 538, 540-41 (8th Cir.
2007); United States v. Crittenden, 372 F.3d 706, 707-10 (5th
Cir. 2004); United States v. Frazier, 89 F.3d 1501, 1505 (11th
Cir. 1996).

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We find an important distinction between the terms “counterfeit substances” and “controlled substances.” The word
“counterfeit” has a normal, everyday meaning that we all
understand. See Merriam-Webster’s Collegiate Dictionary
285 (11th ed. 2005) (defining “counterfeit” as “made in imitation of something else with the intent to deceive: forged”);
Black’s Law Dictionary 375 (8th ed. 2004) (defining “counterfeit” as “to unlawfully forge, copy or imitate an item . . .
or to possess such an item without authorization and with the
intent to deceive or defraud by presenting the item as genuine”). Accordingly, various courts have defined this term to
include two components based on plain meaning: made (1) in
imitation and (2) with intent to deceive. See Robertson, 474
F.3d at 541; Crittenden, 372 F.3d at 708. This definition of
“counterfeit substances” has an independent meaning from
however it may be defined in a specific state or federal statute.
The same is not true of the word “controlled.” While the
word “controlled” may have a plain and ordinary meaning,2
whether a substance is “controlled” must, of necessity, be
tethered to some state, federal, or local law in a way that is
not true of the definition of “counterfeit.” To construe the
term “controlled” as the Government urges would require the
Sentencing Guidelines to take into account the substances that
individual states “control.” This would be contrary to the goal
of the Sentencing Guidelines to seek “reasonable uniformity
in sentencing by narrowing the wide disparity in sentences
imposed for similar criminal offenses committed by similar
offenders.” U.S.S.G. Ch. One, Pt. A.
2

The term “controlled substance” has been defined to mean a drug regulated by law. See, e.g., Black’s Law Dictionary (2009 ed.) (“Any type of
drug whose possession and use is regulated by law, including a narcotic,
a stimulant, or a hallucinogen.”); Oxford English Dictionary (“[A]n addictive or behaviour-altering drug: restricted by law in respect of availability,
possession, or use.”); American Heritage Dictionary (4th ed. 2000) (“A
drug or chemical substance whose possession and use are regulated under
the Controlled Substances Act.”).

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[5] In light of the above, we decline to adopt the Government’s position that the term “controlled substance” should
mean any substance controlled by law. In order to effectuate
the goal set forth in Taylor of arriving at a national definition
to permit uniform application of the Sentencing Guidelines,
we hold that the term “controlled substance,” as used in the
“drug trafficking offense” definition in U.S.S.G. § 2L1.2,
means those substances listed in the CSA. Our holding today
harmonizes the definition in the Sentencing Guidelines with
the immigration statute, and makes the Taylor analysis under
these two schemes consistent for these offenses. Our holding
is also consistent with the reasoning of the Eighth Circuit,
which reached the same conclusion regarding whether California Health & Safety Code § 11378 constituted a drug trafficking offense under U.S.S.G. § 2L1.2. United States v.
Sanchez-Garcia, 642 F.3d 658, 661-62 (8th Cir. 2011) (recognizing that the California statute and Sentencing Guidelines
used the term “controlled substance” but that the Sentencing
Guidelines did not define the term, and adopting the defendant’s position that the term should be defined as substances
listed in the CSA); see also United States v. Benitez-de Los
Santos, 650 F.3d 1157, 1159-60 (8th Cir. 2011) (assuming
that CSA applies and that the categorical analysis does not
apply to California Health & Safety Code § 11351 under the
Sentencing Guidelines).
[6] We conclude that Section 11351 is categorically
broader than the Guidelines definition of “drug trafficking
offense” because it criminalizes possession or purchase of
certain substances that are not covered by the CSA. See RuizVidal, 473 at 1078; Mielewczyk, 575 F.3d at 995. Accordingly, we hold that Section 11351 does not categorically qualify as a “drug trafficking offense” under U.S.S.G. § 2L1.2.
II.

Modified Categorical Analysis

[7] We next apply the modified categorical analysis to
determine if Leal-Vega’s prior conviction qualifies as a “drug

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trafficking offense.” Under the modified categorical approach,
we may not look beyond the record of conviction to the particular facts underlying the conviction. United States v. Vidal,
504 F.3d 1072, 1086 (9th Cir. 2007) (en banc). Our inquiry
is limited to “the charging document, the terms of a plea
agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by
the defendant, or to some comparable judicial record of this
information.” Shepard v. United States, 544 U.S. 13, 26
(2005); Ruiz-Vidal, 473 F.3d at 1078. We held in United
States v. Snellenberger, 548 F.3d 699, 701 (9th Cir. 2008) (en
banc), that we may also consider documents of “equal reliability,” including, but not limited to, a clerk’s minute order.
Several judicially noticeable documents concerning LealVega’s conviction were before the district court. The 1999
felony complaint charged in Count 1 “[t]hat the above named
defendants committed a violation of Health and Safety Code
Section § 11351, a felony, in that on or about March 1, 1999,
in the County of Riverside, State of California, they did wilfully and unlawfully possess for sale and purchase for purpose
of sale a controlled substance, to wit, TAR HEROIN.” Tar heroin is controlled under the CSA as a Schedule I drug. 21
U.S.C. § 812. An abstract of judgment stated that Leal-Vega
was convicted of count 1 under HS 11351P for “Selling Contoll. [sic]” A minute order stated that “Defendant pleads
Guilty to Count(s) 1” and the charges are listed as “1) 11351
HS-F C.” Finally, a felony plea form stated that the “defendant is to enter a guilty plea to the following charges and/or
enhancements” followed by a handwritten “11351 H+S.”
Leal-Vega contends that these documents which establish
that he pled guilty to “Count 1” are not sufficiently reliable
to be considered under the modified categorical approach. We
reject this argument because of our prior holdings to the contrary. The minute order stating that Leal-Vega pled guilty to
“Count 1” may be considered under Snellenberger. 548 F.3d
at 701-02. The minute order at issue here is of sufficient reli-

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ability because it is similarly “prepared by a court official at
the time the guilty plea is taken” and “[t]he clerk presumably
exercises that duty as faithfully and diligently as, for example,
court reporters, upon whose transcripts we regularly depend.”
Id. at 702. Moreover, the abstract of judgment stating that
Leal-Vega was convicted of “Count 1” may be considered
under Ramirez-Villalpando v. Holder, 645 F.3d 1035 (9th Cir.
2011). We clarified in Ramirez-Villalpando that an abstract of
judgment could be used, if it is not the only document that is
used to determine if a prior offense meets the modified categorical approach. Id. at 1040. Thus, both these documents
may be used, in conjunction with the felony complaint, under
the modified categorical analysis.
[8] We hold that the record of conviction establishes that
Leal-Vega was convicted of possession of tar heroin. The felony complaint narrowed the charge and stated that Leal-Vega
was charged under Count 1 with possession for sale of tar heroin under Section 11351. Both the minute order and the
abstract of judgment confirm that he pled guilty to “Count 1,”
under Section 11351. No evidence in the record suggests that
any modifications were made to the felony complaint in terms
of the substance involved. Thus, no ambiguity exists and no
further clarifying language was necessary. See Snellenberger,
548 F.3d at 701-702.
We find Snellenberger to be directly on point. The minute
order in Snellenberger stated that the defendant pled nolo
contendere to count 1. 548 F.3d at 701. Count 1 from the
charging document established the federal offense of burglary. Id. We concluded that “[t]ogether, these lines establish
that Snellenberger pleaded nolo contendere to count 1, which
charged him with ‘enter[ing] an inhabited dwelling house and
trailer coach and inhabited portion of a building occupied by
Peter MacPherson, with the intent to commit larceny and any
felony’ ” and thus, the documents establish that Snellenberger
committed burglary of a dwelling. Id. For Leal-Vega, both the
minute order and abstract of judgment state that Leal-Vega

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pled guilty to Count 1. Count 1 in the complaint identified the
substance as tar heroin. This is the exact situation we faced in
Snellenberger.
In contrast, the factual situation in United States v. Vidal,
the case relied on by Leal-Vega, was quite different. In Vidal,
the felony complaint charged the defendant in Count one with
“willfully and unlawfully driv[ing] and tak[ing] a vehicle . . .
without the consent of and with intent to deprive the owner
of title to and possession of said vehicle, in violation of Vehicle Code Section 10851(a).” 504 F.3d at 1075 (emphasis
added). However, the defendant only pled guilty to “Count 1
10851(a) VC Driving a Stolen Vehicle,” as reflected in the
written plea form. Id. at 1087. Thus, the language in the plea
only referred to “[d]riving a stolen vehicle” and did not
include anything about driving and taking the vehicle without
consent, as the felony complaint charged. We held that “the
paltry record before the district court does not eliminate the
possibility that Vidal was convicted as an accessory after the
fact to theft, which we have concluded does not fall within the
generic theft offense.” Id. at 1089. There is no such “paltry
record” here—rather, the only substance referred to in the
record of conviction is tar heroin. On this record, we cannot
conclude that there is any reasonable possibility that LealVega’s conviction was based on possession of another substance.
[9] We hold that the felony complaint, read together with
the minute order and abstract of judgment, are sufficient
under the modified categorical approach to establish that
Leal-Vega plead guilty to possession with the purpose of sale
of tar heroin, a substance included in the CSA. Thus, his prior
conviction constitutes a “drug trafficking offense” under
U.S.S.G. § 2L1.2, and a sixteen-level sentencing enhancement
should have been applied.
III.

Harmless Error

Finally, Leal-Vega contends that even if there was a sentencing error, the error was harmless because the district court

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had other reasons to impose the sentence it did. During sentencing, the judge stated: “I find that the following sentence
is reasonable and is sufficient, but no greater than necessary
to comply with the purposes stated in Title 18 United States
Code Section 3553(a).” Seizing upon this statement, LealVega argues that the district court’s sentence was based on
many mitigating factors, and that these factors would have
worked to lower the sentence to thirty months, regardless of
the Sentencing Guidelines calculation.
Generally, “a mistake in calculating the recommended
Guidelines sentencing range is a significant procedural error
that requires us to remand for resentencing.” United States v.
Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011). In
Munoz-Camarena, the Government made the same argument
that Leal-Vega attempts here—that remand is unnecessary
because the district court would have sentenced the defendant
to sixty-five months regardless of whether a four- or eightlevel enhancement applied. Id. Rejecting this argument, we
emphasized:
The Supreme Court has made clear that the district
court must correctly calculate the recommended
Guidelines sentence and use that recommendation as
the “ ‘starting point and the initial benchmark.’ ” The
Supreme Court also has emphasized that the recommended Guidelines range must “be kept in mind
throughout the process.” A district court must start
with the recommended Guidelines sentence, adjust
upward or downward from that point, and justify the
extent of the departure from the Guidelines sentence.
Id. (citations omitted). However, if there is a mistake made in
the Guidelines calculation, harmless error review does apply.
Id. We gave the following non-exhaustive examples of situations when harmless error occurs:
For example, harmless error may result if the district
court: (1) acknowledges that the correct Guidelines

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range is in dispute and performs his sentencing analysis twice, beginning with both the correct and
incorrect range; (2) chooses a within-Guidelines sentence that falls within both the incorrect and the correct Guidelines range and explains the chosen
sentence adequately; (3) imposes a statutory minimum or maximum and adequately explains why no
additional or lesser term of imprisonment is necessary; or (4) performs the sentencing analysis with
respect to an incorrect Guidelines range that overlaps
substantially with a correct Guidelines range such
that the explanation for the sentence imposed is sufficient even as to the correct range.
Id. at 1030 n.5. Applying this framework, we stated that “[a]
district court’s mere statement that it would impose the same
above-Guidelines sentence no matter what the correct calculation cannot, without more, insulate the sentence from remand,
because the court’s analysis did not flow from an initial determination of the correct Guidelines range.” Id. at 1031. Rather,
the sentencing court must explain “the reason for the extent
of a variance” and the “extent necessarily is different when
the range is different, so a one-size-fits-all explanation ordinarily will not suffice.” Id.
[10] We reject Leal-Vega’s contention that the district
court’s statement is sufficient to insulate his sentence from the
incorrect Sentencing Guidelines calculation. The statement
cited is a mere boilerplate recitation of the language of 18
U.S.C. § 3553(a). This single statement, “without more,” is
not enough to show harmless error. Munoz-Camarena, 631
F.3d at 1031. Nothing in the sentencing colloquy suggests that
the sentencing judge stated that he would impose the same
sentence regardless of the Guidelines calculation because of
the mitigation factors. Indeed, the four-level enhancement that
the district court applied set the Guidelines range to be
twenty-four to thirty months, and the court applied the high
end of that range. Had the correct sixteen-level enhancement

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been imposed, the sentencing range would have been seventyseven to ninety-six months. With this correct starting point,
the thirty-months sentence imposed would have signified a
forty-seven months departure from the low end. We find nothing in the sentencing transcript indicating that the sentencing
judge would have thought that a forty-seven months departure
under the correct Guidelines level would have been appropriate. See Munoz-Camarena, 631 F.3d at 1031 (“The court must
explain, among other things, the reason for the extent of a
variance. The extent necessarily is different when the range is
different, so a one-size-fits-all explanation ordinarily does not
suffice.”) (internal citation omitted).
[11] Accordingly, we conclude that the Sentencing Guidelines calculation error is not harmless, and we are required to
remand the case for resentencing in light of the error.
CONCLUSION
We hold that California Health & Safety Code § 11351
does not categorically qualify as a drug trafficking offense
under U.S.S.G. § 2L1.2, but that Leal-Vega’s specific conviction involving tar heroin does qualify, applying the modified
categorical analysis. Thus, a sixteen-level enhancement
should have been applied in the Sentencing Guidelines calculation, and we reverse and remand for resentencing.
REVERSED AND REMANDED FOR RESENTENCING.