FILED
NOT FOR PUBLICATION JUL 23 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50382
Plaintiff - Appellee, D.C. No. 2:10-cr-00056-RGK-1
v.
MEMORANDUM*
GUILLERMO ELOY ALAMOS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted May 12, 2014**
Pasadena, California
Before: PREGERSON, REINHARDT, and NGUYEN, Circuit Judges.
Guillermo E. Alamos was convicted of illegal reentry, 8 U.S.C. § 1826, and
challenges the district court’s application of a 16-level sentencing enhancement
based on a prior drug trafficking conviction, as well as the substantive
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
reasonableness of his sentence. Reviewing the district court’s analysis of the prior
drug conviction de novo, United States v. Laurico-Yeno, 590 F.3d 818, 820 (9th
Cir. 2010), and the substantive reasonableness of its sentencing decision for abuse
of discretion, United States v. Vasquez-Perez, 742 F.3d 896, 901 (9th Cir. 2014),
we affirm.
1. Alamos first argues that California Health & Safety Code § 11351 is
“indivisible” under Descamps v. United States, 133 S. Ct. 2276, 2284 (2013).
However, we recently held that the modified categorical analysis applies to a
statute that, like § 11351, sets forth potential offense elements in the alternative.
Coronado v. Holder, No. 11-72121, --- F.3d ----, 2014 WL 3537027, at *4–5 (9th
Cir. July 18, 2014) (analyzing California Health & Safety Code § 11377). Alamos
concedes that Coronado, if correctly decided, forecloses his argument. We agree
and Coronado is now binding precedent.
2. In applying modified categorical analysis, we may examine the
charging document, the terms of the plea agreement, the transcript of the plea
colloquy, and other records of comparable reliability. United States v. Lee, 704
F.3d 785, 788–89 (9th Cir. 2012). Here, count two of the charging document
alleged Alamos violated § 11351 by “possess[ing] for sale and purchas[ing] for
sale a controlled substance, to wit COCAINE.” The abstract of judgment indicates
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that Alamos pled guilty to count two. We have held that where “the abstract of
judgment . . . specifies that a defendant pleaded guilty to a particular count of the
criminal complaint or indictment, we can consider the facts alleged in that count.”
Cabantac v. Holder, 693 F.3d 825, 827 (9th Cir. 2012) (per curiam), amended and
reh’g denied 736 F.3d 787 (9th Cir. 2013). Application of Cantabac here compels
the conclusion that Alamos was convicted of a “drug trafficking offense,” for
purposes of the CSA and U.S.S.G. § 2L1.2(b)(1)(A). In sum, the district court did
not err by applying the disputed enhancement.
3. Alamos was sentenced to 60 months, 17 months below the district
court’s Guidelines calculation of 77 to 96 months. He relies on United States v.
Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), as well as his familial ties and
cultural assimilation, to argue that his sentence was substantively unreasonable. In
Amezcua-Vasquez, defendant was sentenced to 52 months for illegal reentry nearly
fifty years after obtaining legal permanent residency and over twenty years after
completing a sentence for assault that was stale for sentencing purposes. Id. at
1052. In this case, less than 15 years passed between Alamos’ deportation, and his
arrest for illegal reentry. In the meantime, however, he has had repeated brushes
with the law for parole violations, additional state offenses, and a prior illegal
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reentry. Under the circumstances, the sentence imposed by the district court was
not substantively unreasonable.
AFFIRMED.
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