United States v. Lee, No. 10-10403 (9th Cir. 2012)
Annotate this CaseDefendant was convicted of distributing crack cocaine in violation of 21 U.S.C. 841. At issue was whether the district court erred by sentencing defendant as a career offender under U.S.S.G. 4B1.1 based on his two prior convictions under California Health and Safety Code 11352(a). The court held that the government had not satisfied its burden of showing that one of these two convictions qualified as a predicate offense and remanded for the district court to reconsider defendant's offender status.
Court Description: 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.” 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.
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