UNITED STATES of America, Plaintiff-Appellee, v. Arturo Carlos FIGUEROA-OCAMPO, Defendant-Appellant, 225 F. App'x 461

MEMORANDUM Defendant-Appellant Arturo Carlos Figueroa-Ocampo appeals his sentence for being a deported alien found in the United States in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate Figueroa-Ocampo’s sentence and remand to the district court for resentencing. The district court sentenced Figueroa-Ocampo to thirty-seven months imprisonment followed by three years of supervised release.

In imposing Figueroa-Ocampo’s sentence, the district court applied an eight-point sentence enhancement based on Figueroa-Ocampo’s prior conviction for possession of cocaine base in violation of California Health and Safety Code § 11350(a).

The district court determined that Figueroa-Ocampo’s prior simple possession conviction, a felony under California law but a misdemeanor under the Controlled Substances Act, is a “felony punishable by the Controlled Substances Act.” Accordingly, the district court determined that Figueroa-Ocampo’s prior conviction is an aggravated felony under 8 U.S.C. § 1326(b)(2) meriting an eight-point sentence enhancement.

On appeal, Figueroa-Ocampo challenges the district court’s classification of his prior conviction. “[A] state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” Lopez v. Gonzales, — U.S. —, 127 S.Ct. 625, 633, 166 L.Ed.2d 462 (2006). Thus, under Lopez, the district court erred in categorizing FigueroaOcampo’s simple possession conviction as a “felony punishable by the Controlled Substances Act,” and an aggravated felony for sentence enhancement purposes.

Moreover, the district court erroneously determined that Figueroa-Ocampo faced a twenty-year statutory maximum under 8 U.S.C. § 1326(b)(2) instead of a ten-year maximum under 8 U.S.C. § 1326(b)(1). See 8 U.S.C. § 1326(b)(1)-(2).

His three-year term of supervised release was also calculated based on the wrong statutory provision. “[W]here a defendant has received a sentence that includes a period of supervised release, a challenge to the length of his sentence of imprisonment is not moot because the district court has discretion regarding the length of supervised release, see 18 U.S.C. § 3583(a)-(b), and can change the supervised release period, see § 3583(e)(2).” United States v.

Allen, 434 F.3d 1166, 1170 (9th Cir.2006) (noting that “the district court could resentence [the defendant] to a shorter term of supervised release in light of a shorter appropriate term of imprisonment”). The Sentencing Guidelines provide different terms of supervised release for crimes under § 1326(b)(1) and § 1326(b)(2). Compare U.S.S.G. § 5D1.2(a)(l) (“[a]t least three years but not more than five years” of supervised release), with U.S.S.G. § 5D1.2(a)(2) (“[a]t least two years but not more than three years” of supervised release).

Accordingly, it is possible that the district court would have imposed a shorter term of supervised release if it had sentenced Figueroa-Ocampo under § 1326(b)(1) instead of § 1326(b)(2). See Gunderson v. Hood, 268 F.3d 1149, 1153 (9th Cir.2001) (holding that the possibility of relief is sufficient to prevent mootness). We therefore VACATE FigueroaOcampo’s sentence, and REMAND to the district court for resentencing FigueroaOcampo in light of this decision and the Supreme Court’s decision in Lopez v. Gonzales, — U.S. —, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006).

This disposition is not appropriate- for publication and is not precedent except as provided by 9th Cir. R. 36-3. . On January 31, 2006, Figueroa-Ocampo completed serving his thirty-seven month sentence and was released to serve his three-year term of supervised release. Figueroa-Ocam-po was also deported to Mexico.