United States v. Alejandro Salgado-Urias , 541 F. App'x 736 ( 2013 )

FILED
UNITED STATES COURT OF APPEALS JUL 23 2013
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-10065
Plaintiff - Appellee, D.C. No. 4:11-cr-02086-JGZ-
HCE-1
v. District of Arizona,
Tucson
ALEJANDRO SALGADO-URIAS,
Defendant - Appellant. ORDER
Before: W. FLETCHER, GOULD, and CHRISTEN, Circuit Judges.
Salgado-Urias’s petition for panel rehearing is GRANTED. The
memorandum disposition filed June 19, 2013 is WITHDRAWN. A replacement
memorandum disposition is being filed along with this order. This order does not
prevent a subsequent petition for rehearing based on the new memorandum
disposition.
FILED
NOT FOR PUBLICATION JUL 23 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10065
Plaintiff - Appellee, D.C. No. 4:11-cr-02086-JGZ-
HCE-1
v.
ALEJANDRO SALGADO-URIAS, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Linda R. Reade, District Judge, Presiding
Argued and Submitted May 9, 2013
San Francisco, California
Before: W. FLETCHER, GOULD, and CHRISTEN, Circuit Judges.
Alejandro Salgado-Urias appeals his 46-month sentence for illegal reentry
after having previously been deported. 8 U.S.C. § 1326(a). The district court
concluded that solicitation to possess marijuana for sale under Arizona Revised
Statute §§ 13-1002 and 13-3405(A) is categorically a “drug trafficking offense”
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
within the meaning of United States Sentencing Guidelines Manual
§ 2L1.2(b)(1)(A). Salgado-Urias’s offense level was therefore subject to a 16-level
enhancement. Id. We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate
Salgado-Urias’s sentence and remand for application of the modified categorical
approach.
1. Assuming without deciding that common-law solicitation fits within
Application Note 5, we must decide whether Arizona applies its solicitation law
more broadly than generic, common-law solicitation. See United States v.
Shumate, 329 F.3d 1026, amended, 341 F.3d 852 (9th Cir. 2003) (analyzing
§ 4B1.2 cmt. n.1); see also United States v. Contreras-Hernandez, 628 F.3d 1169,
1171–73 (9th Cir. 2011). For purposes of the categorical approach:
To find that a state statute creates a crime outside the generic
definition of a listed crime in a federal statute requires more than the
application of legal imagination. It requires a realistic probability, not
a theoretical possibility, that the State would apply its statute to
conduct that falls outside the generic definition of a crime. To show
that realistic possibility, an offender, of course, may show that the
statute was so applied in his own case. But he must at least point to
his own case or other cases in which the state courts in fact did apply
the statute in the special (nongeneric) manner for which he argues.
Saavedra-Velazquez, 578 F.3d 1103, 1109 (9th Cir. 2009) (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007)).
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We need not look beyond the record in this case to conclude that Arizona’s
statute can be, and is, applied to offenses that may not be included in the common
law definition of “solicitation.” Here, the application of § 13-1002 shows Salgado-
Urias pleaded guilty to solicitation even though the plea colloquy filed by the
government establishes a genuine question whether Salgado-Urias was the
solicitor, or was himself solicited, to possess marijuana for sale. There is more
than a “a realistic probability” that Arizona’s solicitation statute is applied to
“conduct outside the generic definition” of solicitation. Id.
Salgado-Urias pleaded guilty to solicitation of possession of marijuana for
sale, which is a less serious offense than possession of marijuana for sale. See
Ariz. Rev. Stat. Ann. § 13-1002(B). During the plea colloquy, he stated that he
agreed to allow someone to store two or three large bundles of marijuana in his
trailer. We conclude that Arizona’s solicitation statute is categorically overbroad,
vacate Salgado-Urias’s sentence, and remand this case to the district court for
resentencing. The district court should consider the effect, if any, of Descamps v.
United States, No. 11-9540, 2013 WL 3064407 (June 20, 2013), in resentencing
Salgado-Urias.
2. Salgado-Urias also argues his sentence was substantively unreasonable.
This argument is not persuasive. Contrary to Salgado-Urias’s contention, the
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district court considered the 18 U.S.C. § 3553(a) factors, the nature of the offense,
and Salgado-Urias’s background. See Gall v. United States, 552 U.S. 38, 51
(2007).
3. Salgado-Urias argues he was entitled to a downward departure, pursuant
to Sentencing Guideline § 2L1.2 Application Note 7, or a variance. Application
Note 7 describes a discretionary departure, § 2L1.2 cmt. n.7, and variances are also
granted on a discretionary basis, see, e.g., United States v. Oseguera-Madrigal, 700
F.3d 1196, 1199 (9th Cir. 2012). The district court did not abuse its discretion by
declining to grant a downward departure or variance in this case.
4. Finally, Salgado-Urias’s solicitation conviction was not outside the
temporal scope of criminal history contemplated by the Guidelines. U.S.
Sentencing Guidelines Manual § 4A1.2(e)(1); cf. United States v. Amezcua-
Vasquez, 567 F.3d 1050, 1052 (9th Cir. 2009).
SENTENCE VACATED AND REMANDED FOR RESENTENCING.
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