Narrative Opinion Summary
Adrian Stephen Burke appeals his 77-month sentence for Unlawful Reentry of a Deported Alien under 8 U.S.C. § 1326. The jurisdiction is based on 28 U.S.C. § 1291, and the case is remanded. Burke argues that the district court incorrectly applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i), citing a Nevada judgment that included two convictions, only one qualifying as a drug trafficking offense. The court finds the judgment clearly shows Burke was convicted of possession of a controlled substance with intent to sell, thus justifying the enhancement. The court affirms that the Nevada statute pertains solely to drug trafficking offenses, satisfying the categorical analysis required. However, due to the sentencing occurring under then-mandatory guidelines, the case is remanded for further proceedings in line with United States v. Ameline. The disposition is not suitable for publication and citation is restricted per 9th Cir. R. 36-3.
Legal Issues Addressed
Categorical Analysis for Drug Trafficking Offensessubscribe to see similar legal issues
Application: The Nevada statute under which Burke was convicted pertains solely to drug trafficking offenses, thus meeting the categorical analysis requirement.
Reasoning: The court finds the judgment clearly shows Burke was convicted of possession of a controlled substance with intent to sell, thus justifying the enhancement. The court affirms that the Nevada statute pertains solely to drug trafficking offenses, satisfying the categorical analysis required.
Jurisdictional Basis for Appeal under 28 U.S.C. § 1291subscribe to see similar legal issues
Application: The appellate jurisdiction is established based on 28 U.S.C. § 1291.
Reasoning: The jurisdiction is based on 28 U.S.C. § 1291, and the case is remanded.
Publication and Citation Restrictions under 9th Cir. R. 36-3subscribe to see similar legal issues
Application: The disposition of the case is not suitable for publication and is subject to citation restrictions.
Reasoning: The disposition is not suitable for publication and citation is restricted per 9th Cir. R. 36-3.
Remand for Sentencing under United States v. Amelinesubscribe to see similar legal issues
Application: The case is remanded for further proceedings because the original sentencing occurred under then-mandatory guidelines.
Reasoning: However, due to the sentencing occurring under then-mandatory guidelines, the case is remanded for further proceedings in line with United States v. Ameline.
Sentencing Enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i)subscribe to see similar legal issues
Application: The court applied a 16-level enhancement based on a prior conviction for possession with intent to sell, which qualifies as a drug trafficking offense.
Reasoning: Burke argues that the district court incorrectly applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i), citing a Nevada judgment that included two convictions, only one qualifying as a drug trafficking offense.