UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4226
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
I.
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
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