United States v. Marvin Maroquin-Bran

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4226

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

MARVIN MAROQUIN-BRAN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
District Judge. (7:07-cr-00107-FL-1)

Submitted: September 8, 2011 Decided: October 13, 2011

Before WILKINSON, MOTZ, and DAVIS, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, Eric Evenson, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Marvin Maroquin-Bran returns to this court to

challenge the application of a sixteen-level sentencing

enhancement under § 2L1.2(b)(1)(A) of the United States

Sentencing Guidelines (“U.S.S.G.”). Given our recent decision

in United States v. Vann, No. 09-4298 (4th Cir. Oct. 11, 2011)

(en banc), we hold that Maroquin-Bran’s prior conviction does

not support application of the enhancement. Accordingly, we

vacate the judgment of the district court and remand for

resentencing.

We previously considered Maroquin-Bran’s case in

United States v. Maroquin-Bran, in which we described the

circumstances leading to his 1989 California conviction, his

resulting deportation, his subsequent illegal reentry, and his

most recent offense. 587 F.3d 214, 216 (4th Cir. 2009). After

clarifying the requirements of U.S.S.G. § 2L1.2(b)(1)(A), we

determined that Maroquin-Bran’s 1989 guilty plea to a violation

of California Health & Safety Code § 11360(a) was not

categorically a “drug trafficking offense” under §

2L1.2(b)(1)(A). We reasoned that although the California

statute “prohibits two offenses: sale of marijuana and

transportation of marijuana,” only the “former properly triggers

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the sixteen-level sentencing enhancement.” Id. at 218. *

Accordingly, we remanded the case to the district court to

examine the Shepard-approved documents and “determin[e] the

character of” Maroquin-Bran’s offense. Id. (citing Shepard v.

United States, 544 U.S. 13, 16 (2005)).

On remand the Government offered three documents for

the court’s consideration: (1) the criminal information, which

in count 1 charged a violation of § 11360(a) and stated that

Maroquin-Bran “did willfully 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

marijuana”; (2) the abstract of judgment, which indicated that

Maroquin-Bran pled guilty to § 11360 “sale/TRANSP MARIJUANA” on

3/9/89; and (3) a four page compilation of case records, which

*
Cal. Health & Safety Code § 11360(a) provides that:

Except as otherwise provided by this section or as
authorized by law, 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 any marijuana shall be punished by
imprisonment in the state prison for a period of two,
three or four years.

Cal. Health & Safety Code § 11360(a) (West 2011).

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indicated that Maroquin-Bran pled guilty to count 1 of the

information –- a violation of “§ 11360(a) H&S.” The record does

not contain a transcript of the guilty plea.

The district court observed that the information

charged Maroquin-Bran in the conjunctive, replacing the word

“or” in the statute with the word “and.” Based on this, the

court concluded that “it need not look any further to determine

that [Maroquin-Bran]’s California conviction” was for the sale

of marijuana and thus qualified for the sixteen-level

enhancement.

II.

In Vann, we recently confronted a similar factual

scenario. There the defendant pled guilty to an indictment that

conjunctively charged violations of different subsections of a

North Carolina statute. Only one of those subsections, however,

qualified as an ACCA predicate offense. We held that the charge

and plea alone provided no basis to hold the defendant’s

“convictions ‘necessarily’ rest[ed]” on the qualifying offense.

See Vann, slip op. at 9 (per curiam).

The documents proffered by the Government in the case

at hand are equally unedifying. Count 1 of the information

tracks the language of the California statute, except in the

conjunctive. As we held in Vann, “it is settled that a charging

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document must allege conjunctively the disjunctive components of

an underlying statute.” Vann, slip op. at 6 (per curiam); see

also In re Bushman, 463 P.2d 727, 732 (Cal. 1970), disapproved

of on other grounds, People v. Lent, 541 P.2d 545, 548 n.1 (Cal.

1975) (“When a statute . . . lists several acts in the

disjunctive, any one of which constitutes an offense, the

complaint, in alleging more than one of such acts, should do so

in the conjunctive to avoid uncertainty.”). Moreover, the

abstract of judgment and compilation of case records simply

refer to the charge or the statute. None of these documents

provide any basis to conclude that Maroquin-Bran’s conviction

was “necessarily” for the qualifying offense, i.e. a drug sale

and not just transportation of illegal drugs. Accordingly,

application of the sixteen-level enhancement was inappropriate.

III.

For the foregoing reasons, we vacate the judgment of

the district court and remand the case for resentencing.

VACATED AND REMANDED