828 (1998)). A petitioner is actually innocent when he was convicted for conduct not prohibited by law. See Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.2001) (summarizing the tests employed by the circuit courts to determine actual innocence). Alaimalo has made a showing of actual innocence. He was convicted of importing methamphetamine from California to Guam, which Cabaccang held is not a crime. Cabaccang, 332 F.3d at 637. Further, we note that the government do r.1997); In re Dorsainvil, 119 F.3d 245 (3d Cir.1997). In contrast, a decision that simply “provides further clarification” of the statute of conviction without “materially vary[ing] from the statutory construction set forth” in previous case law does not effect such a change. See Harrison, 519 F.3d at 960 (<HOLDING>). We hold that Cabaccang effected a material
holding that the supreme courts decision in jones v united states 529 us 848 120 sct 1904 146 led2d 902 2000 did not effect a material change in the law but only clarified a prior supreme court decision and two ninth circuit opinions consistent with joness holding holding that an intervening change in state law allowed a result that would otherwise be inconsistent with a prior ninth circuit decision holding ninth circuit will not impose a federal question when valid provisions of local law justify cnmi supreme court decision holding that a prior us supreme court decision did not present a new rule of criminal procedure but merely interpreted a statute holding that apprendi v new jersey 530 us 466 120 sct 2348 147 led2d 435 2000 did not overrule almendareztorres v united states 523 us 224 118 sct 1219 140 led2d 350 1998