United States v. Miguel Beltran-Ochoa

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 24 2013

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 12-10384

Plaintiff - Appellee, D.C. No. 4:11-cr-03362-JGZ-
DTF-1
v.

MIGUEL AMBROSIO BELTRAN- MEMORANDUM*
OCHOA, AKA Miguel Beltran-Ochoa,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding

Argued and Submitted July 8, 2013
San Francisco, California

Before: FERNANDEZ, PAEZ, and BERZON, Circuit Judges.

Defendant Miguel Ambrosio Beltran-Ochoa appeals his sentence for

attempted illegal entry after deportation, in violation of 8 U.S.C. § 1326. Beltran-

Ochoa argues that the district court erred by imposing a twelve-level sentencing

enhancement under U.S.S.G. § 2L1.2(b)(1)(B), because his prior conviction for

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
solicitation to possess narcotic drugs for sale, Ariz Rev. Stat. §§ 13-1002, 13-

3408(A)(2), is not categorically a “drug trafficking offense.”

1. Beltran-Ochoa does not dispute that a prior conviction for possession of a

narcotic drug for sale, under Ariz. Rev. Stat. § 13-3408(A)(2), would categorically

be a “drug trafficking offense” for purposes of § 2L1.2(b)(1)(B). See U.S.S.G. §

2L1.2(b)(1) cmt. n.1(B)(iv) (defining “drug trafficking offense”). He argues,

however, that a conviction for solicitation to possess narcotic drugs for sale is not

categorically a “drug trafficking offense.”

2. The sentencing guidelines provide that a “drug trafficking offense” is

defined to “include the offenses of aiding and abetting, conspiring, and

attempting[] to commit” any of the offenses counted under § 2L1.2(b)(1).

U.S.S.G. § 2L1.2 cmt. n.5. Beltran-Ochoa argues that because “solicitation” is not

enumerated in note 5, a conviction for solicitation to possess narcotic drugs for sale

is not categorically a drug trafficking offense. But we have previously rejected the

argument that “solicitation” is not included in note 5 because it “differs from and is

less serious than aiding and abetting, conspiring or attempting,” United States v.

Contreras-Hernandez, 628 F.3d 1169, 1172 (9th Cir. 2011). To the contrary, we

have cited with approval the proposition that “‘solicitation is sufficiently similar to

the offenses listed in the application note to be encompassed by the note.’” Id. at

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1173 (quoting United States v. Cornelio-Pena, 435 F.3d 1279, 1286 (10th Cir.

2006)); see also id. at 1172 (finding it significant that the guidelines state that

“‘[t]he term ‘includes’ is not exhaustive’” (quoting U.S.S.G. § 1B1.1 cmt. n.2)).

Although Contreras-Hernandez concerned a sentencing enhancement for a prior

felony “crime of violence” conviction, U.S.S.G. § 2L1.2(b)(1)(A)(ii), it considered

the same note at issue in this case. Contreras-Hernandez, 628 F.3d at 1171 n.9;

see also U.S.S.G. § 2L1.2 cmt. n.5 (referring to “subsection (b)(1)”). Cf. United

States v. Shumate, 329 F.3d 1026, 1030 (9th Cir. 2003); United States v. Cox, 74

F.3d 189, 190 (9th Cir. 1996) (holding that “the omission of solicitation” from an

almost identically worded commentary note, U.S.S.G. § 4B1.2 cmt. n.1, “does not

carry legal significance”). We therefore conclude that the district court did not err

in imposing a twelve-level sentencing enhancement for Beltran-Ochoa’s prior drug

trafficking conviction.

AFFIRMED.

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