United States v. Alvarez-Soria

MEMORANDUM **

Juan Alvarez-Soria appeals his sentence and conviction following his conditional guilty plea for illegal reentry after deportation in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

While Alvarez-Soria’s 1999 conviction under Cal. Health & Safety Code § 11379(a) is not categorically an aggravated felony because it encompasses solicitation, see United States v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir.2001) (en banc), the judicially noticeable documents before the district court — the information, the plea agreement and the judgment— established that Alvarez-Soria pled no contest to, and was subsequently convicted of, Count 3 of the information — which included transporting, soliciting and attempting to import methamphetamine. Thus, his particular conviction encompassed drug trafficking, which constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). Accordingly, the district court did not err when it denied AlvarezSoria’s motion to dismiss, finding that his prior conviction constituted an aggravated felony under the modified categorical approach.

Alvarez-Soria challenges his sentence under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Because the Sentencing Guidelines are no longer binding — and we cannot ascertain whether the district court would have imposed a different sentence under a discretionary regime — we remand to the district court for discretionary reconsideration of the sentence in light of United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc).

AFFIRMED and REMANDED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.