In an immigration matter the Fourth Circuit Court of Appeals remanded the case of Marvin Maroquin-Bran to the trial court for resentencing after the trial court erroneously applied a sixteen level sentencing enhancement for reentering the nation after being convicted of reentering the country after being convicted of a drug trafficking offense.

Maroquin-Bran reentered the country after being convicted of violating California Health and Safety Code Section 11360(a). Section 11360(a) states in pertinent part:

[E]very 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.

The trial court found Section 11360(a) to be a drug trafficking offense. But the appellate court found otherwise. A drug trafficking offense is one that ” prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled
substance . . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.” a controlled substance. While Section 11360(a) does outlaw drug trafficking it also outlaws other activity. Specifically it outlaws transporting marijuana. Transportation is not an element of drug trafficking. Therefore unless there is evidence that Maroquin-Bran actually participated in drug trafficking the enhancement cannot be imposed. Case law limits the evidence of trafficking to “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Therefore the Fourth Circuit remanded the case so that the trial judge can determine whether or not their is proper evidence that Maroquin-Bran committed a drug trafficking offense.