FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-50719
Plaintiff-Appellee,
v. D.C. No.
CR-04-02063-NAJ
DAVID MARTINEZ-RODRIGUEZ,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Argued and Submitted
October 19, 2006—Pasadena, California
Filed November 21, 2006
Before: Harry Pregerson, Ronald M. Gould, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Gould
18677
18680 UNITED STATES v. MARTINEZ-RODRIGUEZ
COUNSEL
Stephen D. Demik, Federal Defenders of San Diego, Inc., San
Diego, California, for defendant-appellant David Martinez-
Rodriguez.
L. Marcel Stewart, Assistant United States Attorney, San
Diego, California, for plaintiff-appellee United States of
America.
OPINION
GOULD, Circuit Judge:
A jury convicted David Martinez-Rodriguez (“Martinez”)
of re-entering the United States after removal in violation of
8 U.S.C. § 1326(a). On August 23, 2005, the district court
UNITED STATES v. MARTINEZ-RODRIGUEZ 18681
sentenced Martinez to seventy-seven months imprisonment
with three years supervised release. Martinez challenges his
sentence on two grounds.1
First, relying on our decision in United States v. Covian-
Sandoval, 462 F.3d 1090 (9th Cir. 2006), and the Supreme
Court’s decision in Apprendi v. New Jersey, 530 U.S. 466
(2000), Martinez argues that the district court improperly
found that his prior removal “was subsequent to a conviction
for commission of an aggravated felony,” § 1326(b)(2). Mar-
tinez argues that he never admitted this fact, nor was this fact
ever proven to a jury beyond a reasonable doubt. The district
court relied on Martinez’s prior removal subsequent to his
aggravated felony conviction to increase his statutory-
maximum sentence from two to twenty years under
§ 1326(b)(2).
Second, Martinez argues that the district court erred in find-
ing that his prior conviction for possession of marijuana for
sale under California Health and Safety Code section 11359
was a drug trafficking offense under the Federal Sentencing
Guidelines. The district court relied on Martinez’s prior con-
viction for a drug trafficking offense to apply a sixteen-level
sentence enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)
(2004). 28 U.S.C. § 1291 gives us jurisdiction. We affirm.
I
In 1992, Martinez, a citizen of Mexico, pled no contest in
Santa Clara County (California) Superior Court in three sepa-
rate criminal cases which arose from three separate arrests. In
case number 153302, he pled no contest to one count of pos-
session of a controlled substance in violation of California
Health and Safety Code section 11350(a) and one count of
transportation or sale of marijuana in violation of California
1
We address the other issues Martinez raised on appeal in a separately-
filed memorandum disposition.
18682 UNITED STATES v. MARTINEZ-RODRIGUEZ
Health and Safety Code section 11360(a). In case number
153303, Martinez pled no contest to one count of possession
of marijuana for sale in violation of California Health and
Safety Code section 11359. And in case number 153304,
Martinez pled no contest to another count of possession of
marijuana for sale in violation of section 11359. The state
court initially sentenced Martinez to four months in prison in
each case (resulting in a twelve-month total prison sentence).
However, Martinez violated the probation conditions he
received upon the conclusion of his initial twelve-month sen-
tence. Upon its revocation of Martinez’s probation, the state
court sentenced Martinez to two additional years in prison in
each case. It appears from the pre-sentence report (“PSR”)
that Martinez served these two-year sentences concurrently.
On June 9, 2004, a United States Border Patrol Agent
encountered Martinez in the Otay Mountain Wilderness in
San Diego County, California, about one mile north of the
United States-Mexico border. After Martinez indicated that he
was a Mexican citizen without documents allowing him to be
in the United States, the Border Patrol Agent arrested him. On
August 4, 2004, a grand jury indicted Martinez on one count
of violating 8 U.S.C. § 1326(a). Martinez’s case went to trial
on March 8, 2005.
To obtain a conviction for illegal re-entry, § 1326(a)
requires the government to prove, inter alia, that the defendant
has been previously removed from the United States. At trial,
to prove Martinez’s prior removal, the government introduced
four pieces of evidence: an order of an immigration judge
from 1994, ordering Martinez removed from the United
States; a warrant of deportation from 1994, indicating that
Martinez had been physically removed from the United
States; a reinstatement of the 1994 order of removal from
1998; and a warrant of deportation from 1999. The jury con-
victed Martinez of violating § 1326(a).
Martinez’s PSR reflected his two 1992 convictions of pos-
sessing marijuana for sale in violation of California Health
UNITED STATES v. MARTINEZ-RODRIGUEZ 18683
and Safety Code section 11359. At sentencing, the district
court determined that Martinez’s two convictions for violating
section 11359 were “conviction[s] for commission of an
aggravated felony,” § 1326(b)(2), and concluded that Marti-
nez’s statutory-maximum sentence was twenty years. The dis-
trict court also found that Martinez’s two prior convictions for
possession of marijuana for sale under section 11359 were
convictions for drug trafficking offenses for the purpose of
the Federal Sentencing Guidelines. See U.S.S.G.
§ 2L1.2(b)(1)(A). Because of the drug trafficking offense con-
victions, the district court applied a sixteen-level enhancement
to Martinez’s sentence. See id. Calculating Martinez’s Guide-
line range to be between seventy-seven and ninety-six
months, the district court sentenced Martinez to seventy-seven
months in prison with three years supervised release.
II
Martinez first argues, relying on Apprendi and its progeny,
that the district court erred by judicially finding that, because
Martinez’s prior “removal was subsequent to a conviction for
commission of an aggravated felony,” § 1326(b)(2), Marti-
nez’s statutory-maximum sentence was twenty years, rather
than the generally-applicable two-year maximum sentence
found in § 1326(a). He argues that the district court’s finding
that he was removed after being convicted of an aggravated
felony violates Apprendi because it increased his statutory-
maximum sentence on the basis of facts not alleged in the
indictment, proven to the jury, or admitted by him. See
Apprendi, 530 U.S. at 490 (“Other than the fact of a prior con-
viction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.”). We review de
novo whether Martinez-Rodriguez’s sentence violates
Apprendi. United States v. Smith, 282 F.3d 758, 771 (9th Cir.
2002). We hold that, in this case, because all of the evidence
of prior removal presented to the jury related to removals that
were subsequent to Martinez’s prior aggravated felony con-
18684 UNITED STATES v. MARTINEZ-RODRIGUEZ
viction, the jury necessarily found beyond a reasonable doubt
that Martinez’s prior “removal was subsequent to a conviction
for commission of an aggravated felony,” § 1326(b)(2).
[1] Section 1326(a) provides that any alien who violates
that section “shall be . . . imprisoned not more than 2 years.”
However, § 1326(b)(2) modifies the two-year statutory-
maximum sentence provided for in § 1326(a) by stating that
“[n]otwithstanding subsection (a) of this section, in the case
of any alien described in such subsection . . . whose removal
was subsequent to a conviction for the commission of an
aggravated felony, such alien shall be . . . imprisoned not
more than 20 years.” Thus, in order for the twenty-year
statutory-maximum sentence to apply, (1) the defendant must
have been convicted of an aggravated felony and (2) thereaf-
ter, the defendant must have been removed from the United
States.
[2] Under this standard, the first step in our analysis is
determining whether Martinez was convicted of an aggra-
vated felony. The district court found, at sentencing, that
Martinez-Rodriguez pled no contest to two counts of posses-
sion of marijuana for sale under California Health and Safety
Code section 11359 in 1992. Our precedent forecloses Marti-
nez’s argument the district court violated Apprendi by finding
the fact of his prior aggravated felony conviction.
For example, in United States v. Reyes-Pacheco, 248 F.3d
942, 943-44 (9th Cir. 2001) the defendant contended that “the
district court improperly enhanced his [§ 1326] sentence on
the basis of a prior aggravated felony conviction that was nei-
ther admitted nor charged in the indictment and proven
beyond a reasonable doubt.” We found that the defendant’s
argument was foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998). Reyes-Pacheco, 248 F.3d at 944.
In Almendarez-Torres, the Supreme Court held that
§ 1326(b)(2) “simply authorizes a court to increase the sen-
tence for a recidivist. It does not define a separate crime.” 523
UNITED STATES v. MARTINEZ-RODRIGUEZ 18685
U.S. at 226. The Court in Almendarez-Torres rejected the
argument that, because the fact of recidivism increased the
maximum term to which a defendant could be sentenced,
recidivism was an element of the crime that must be charged
in the indictment and proven beyond a reasonable doubt. Id.
at 239.
[3] Martinez argues that the Supreme Court has effectively
overruled Almandarez-Torres. We again reiterate that, while
Apprendi may cast doubt on the continuing viability of
Almendarez-Torres, Almendarez-Torres remains the law
unless and until it is overruled by the Supreme Court. Reyes-
Pacheco, 248 F.3d at 945; United States v. Pacheco-Zepeda,
234 F.3d 411, 414 (9th Cir. 2000). Thus, the district court
properly concluded that Martinez’s convictions for possession
for marijuana for sale were aggravated felony convictions.
We hold that “[t]he district court did not err by considering
[Martinez’s] prior aggravated felony conviction[s] despite the
fact that such conduct was neither admitted nor charged in the
indictment, presented to a jury, and proven beyond a reason-
able doubt.” Reyes-Pacheco, 248 F.3d at 945.2
[4] The second step in determining whether the district
court correctly subjected Martinez to the twenty-year
statutory-maximum sentence in § 1326(b)(2) requires us to
examine whether the district court correctly found that Marti-
nez had been removed from the United States and that the
removal occurred after his prior convictions for possession of
marijuana for sale. In finding Martinez guilty of illegal re-
entry under § 1326(a), the jury necessarily found that Marti-
nez had been removed from the United States, because prior
removal is an element of the government’s § 1326(a) case.
However, Martinez argues that because he did not admit and
2
Martinez’s argument that § 1326(b) is unconstitutional is foreclosed by
our decision in United States v. Maciel-Vasquez, 458 F.3d 994, 996 (9th
Cir. 2006) (“[W]e reject Maciel’s argument that 8 U.S.C. § 1326(b)(2) is
unconstitutional.”).
18686 UNITED STATES v. MARTINEZ-RODRIGUEZ
the jury did not find the date of his prior removal, his
statutory-maximum sentence was only two years. He argues
that the district judge violated Apprendi by finding that his
prior removal was subsequent to his 1992 aggravated felony
conviction. In support of this argument, Martinez relies on our
decision in Covian-Sandoval, 462 F.3d 1090.
In Covian-Sandoval, the defendant pled guilty to a charge
of illegal re-entry and admitted that he was deported in 1997.
See id. at 1092. At sentencing, the district court, consistent
with Almendarez-Torres, found that the defendant had been
convicted of an aggravated felony in 2002. See id. at 1097.
Because the defendant’s previous removal in 1997 was prior
to his 2002 aggravated felony conviction, he did not qualify
for the twenty-year statutory-maximum sentence in
§ 1326(b)(2). However, the district court, relying on the PSR,
found that the defendant had been again deported in 2004. See
id. The district court thus applied the twenty-year statutory-
maximum sentence because the defendant was deported sub-
sequent to his 2002 aggravated felony conviction. Id.
We held that it was error for the district court to rely on the
2004 removal to enhance the defendant’s statutory-maximum
sentence. Id. Citing Apprendi, we explained that
unlike the fact of a prior conviction at issue in
Almendarez-Torres, the fact of an alien’s prior
removal or departure is plainly one of the elements
of the crime for which Covian was convicted.
Accordingly, it must be proved beyond a reasonable
doubt to a jury or admitted by the defendant.
Id. at 1098 (citations omitted). Because “[t]he fact of a prior
conviction is the only fact that both increases a penalty
beyond the statutory maximum and can be found by a sen-
tencing court,” we concluded that the district court erred by
“[finding] the existence of a subsequent removal that was nei-
UNITED STATES v. MARTINEZ-RODRIGUEZ 18687
ther proven beyond a reasonable doubt at trial nor admitted by
Covian.” Id. at 1097-98.3
Martinez analogizes his case to Covian-Sandoval, contend-
ing that the date of his removal was not proven to a jury or
admitted by him. Since the jury never explicitly found the fact
that Martinez’s prior removal was after his 1992 aggravated
felony conviction, he argues that he was improperly subjected
to a twenty-year statutory-maximum sentence based on facts
found only by the district judge. We are not persuaded by
Martinez’s application of Covian-Sandoval.
[5] In Covian-Sandoval, the prior removal admitted by the
defendant was inadequate to support the application of the
twenty-year statutory maximum, so the district judge improp-
erly found the fact of another, qualifying, removal. By con-
trast, in this case, the jury found beyond a reasonable doubt
that Martinez had been previously removed from the United
States, because prior removal is an element of the crime
defined in § 1326(a). At trial, the jury was presented with evi-
dence that Martinez was deported in both 1994 and 1999.
Both of these removals were after Martinez’s 1992 aggravated
felony conviction and thus were adequate to support the appli-
cation of the twenty-year statutory-maximum sentence. The
district court did not need to determine the date of Martinez’s
deportation because the jury necessarily found that Martinez
was deported after his prior convictions. The salient point is
that the only evidence of deportation presented to the jury was
from 1994 and 1999, and both were after his 1992 aggravated
felony conviction.
[6] The fact of “removal . . . subsequent to a conviction for
commission of an aggravated felony,” § 1326(b)(2) (emphasis
3
Because Covian did not raise this Apprendi argument at sentencing, we
reviewed under our plain error standard. Covian-Sandoval, 462 F.3d at
1093. Finding that the district court’s error did not affect Covian’s sub-
stantial rights, we affirmed his sentence. Id. at 1098-99.
18688 UNITED STATES v. MARTINEZ-RODRIGUEZ
added), was proven to the jury beyond a reasonable doubt in
this case. Whether the jury found the evidence of the 1994
removal more persuasive or the evidence of the 1999 removal
more persuasive, either removal was subsequent to Martinez-
Rodriguez’s 1992 aggravated felony conviction. We hold that
the sentencing court did not erroneously find either the fact of
prior removal or its date because the jury necessarily found,
beyond a reasonable doubt, that Martinez had been previously
removed subsequent to his prior aggravated felony convic-
tions.
III
[7] Martinez next argues that the district court erred in
enhancing his sentence by sixteen levels because of his two
prior convictions for possession of marijuana for sale under
California Health and Safety Code section 11359. The Sen-
tencing Guidelines permit such an enhancement if the defen-
dant previously was deported after being convicted of “a drug
trafficking offense for which the sentence imposed exceeded
13 months.” U.S.S.G. § 2L1.2(b)(1)(A). We review de novo
the district court’s decision to enhance Martinez’s sentence on
the basis of U.S.S.G. § 2L1.2. United States v. Bonilla-
Montenegro, 331 F.3d 1047, 1049 (9th Cir. 2003). We hold
that a prior conviction for possession of marijuana for sale
under section 11359 categorically qualifies as a “drug traf-
ficking offense” under the Guidelines.
[8] To determine whether the district court properly applied
the sixteen-level sentence enhancement, we must determine
whether a violation of section 11359 is a “drug trafficking
offense.” We apply the categorical approach of Taylor v.
United States, 495 U.S. 575 (1990), to determine whether a
prior state law conviction forms a predicate for sentence
enhancement under the Guidelines. United States v. Cortez-
Arias, 403 F.3d 1111, 1114 (9th Cir. 2005). Under the cate-
gorical approach, we look only to the statutory definition of
the defendant’s prior offense and compare it to the Guide-
UNITED STATES v. MARTINEZ-RODRIGUEZ 18689
lines’ generic definition of the predicate offense. See Taylor,
495 U.S. at 600; United States v. Franklin, 235 F.3d 1165,
1169 (9th Cir. 2000). Martinez’s prior convictions under sec-
tion 11359 qualify as drug trafficking offenses only if the full
range of conduct proscribed by section 11359 falls within the
Guidelines’ definition of drug trafficking offense. See Taylor,
495 U.S. at 599; United States v. Baron-Medina, 187 F.3d
1144, 1146 (9th Cir. 1999).
The Sentencing Guidelines define drug trafficking offense
as follows:
“Drug trafficking offense” means an offense under
federal, state, or local law that prohibits the manu-
facture, import, export, distribution, or dispensing of
a controlled substance (or a counterfeit substance) or
the possession of a controlled substance (or a coun-
terfeit substance) with intent to manufacture, import,
export, distribute, or dispense.
U.S.S.G. § 2L1.2 cmt. n.1(B)(iv). Section 11359, entitled
“Possession for sale,” provides: “Every person who possesses
for sale any marijuana, except as otherwise provided by law,
shall be punished by imprisonment in the state prison.” Our
analysis of whether the conduct proscribed by section 11359
falls entirely within the Guidelines’ definition of drug traf-
ficking offense is guided by our decision in United States v.
Sandoval-Venegas, 292 F.3d 1101 (9th Cir. 2002).
[9] In Sandoval-Venegas, we had to determine whether a
conviction under section 11359 was, categorically, a “con-
trolled substance offense” under the Guidelines. Id. at 1107.
We examined the Guidelines’ definition of controlled sub-
stance offense, the text of section 11359, and the relevant Cal-
ifornia case law interpreting section 11359 and concluded that
“California Health & Safety Code § 11359 comfortably fits
within the Guidelines definition as a qualifying offense.” Id.
18690 UNITED STATES v. MARTINEZ-RODRIGUEZ
[10] The Guidelines define a controlled substance offense
as
an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that
prohibits the manufacture, import, export, distribu-
tion, or dispensing of a controlled substance (or a
counterfeit substance) or the possession of a con-
trolled substance (or a counterfeit substance) with
intent to manufacture, import, export, distribute, or
dispense.
U.S.S.G. § 4B1.2(b). This definition is identical to the Guide-
lines’ definition of drug trafficking offense except (1) a prior
conviction need only be punishable by a prison term exceed-
ing one year to qualify as a controlled substance offense,
whereas, to qualify as a drug trafficking offense, the prison
sentence imposed for a prior conviction must exceed thirteen
months and (2) a prior conviction under “local” law can qual-
ify as a conviction for a drug trafficking offense, whereas to
qualify as a conviction for a controlled substance offense, the
conviction must be under state or federal law. Neither of these
differences is material to this case, as Martinez’s prior convic-
tions under California state law resulted in a sentence that, for
Guidelines purposes, exceeded thirteen months.4
4
Martinez argues that the district court erred in concluding that the sen-
tence imposed for his prior convictions for violating section 11359
exceeded thirteen months. In 1992, in state court, there were three separate
cases pending against Martinez. In two of the cases, Martinez was con-
victed of one count of violating section 11359. The state court sentenced
Martinez to three four-month sentences (one sentence for each case) that
ran consecutively. In 1993, Martinez’s probation was revoked and the
state court sentenced him to two additional years in prison in each of the
three cases. Martinez served these three two-year sentences concurrently.
In determining the length of the sentence imposed under U.S.S.G. § 2L1.2,
“[t]he length of sentence imposed includes any term of imprisonment
given upon revocation of probation.” U.S.S.G. § 2L1.2 cmt. n.1(B)(vii).
Martinez’s original sentence for the drug trafficking offense in each case
was four months. To that, we add the two-year sentence imposed upon his
revocation of probation in each case to conclude that the sentence imposed
for each of his two prior drug trafficking convictions was two years and
four months for the purpose of U.S.S.G. § 2L1.2.
UNITED STATES v. MARTINEZ-RODRIGUEZ 18691
Martinez nevertheless argues that, because California’s def-
inition of constructive possession is broader than the federal
definition of constructive possession, a violation of section
11359 is not a drug trafficking offense under the categorical
approach. To constructively possess contraband under federal
law, the defendant must know of the existence of the contra-
band. See United States v. Behanna, 814 F.2d 1318, 1319 (9th
Cir. 1987) (“In order to prove constructive possession of
property, the government must demonstrate that the defendant
both knows of the presence of the contraband and has power
to exercise dominion and control over it.”); see also United
States v. Ruiz, 462 F.3d 1082, 1089-90 (9th Cir. 2006). Marti-
nez claims that, under California law, a defendant may have
constructive possession of contraband when he simply has the
right to control the contraband, even if the defendant has no
knowledge of the existence of the contraband.
We rejected this argument in Sandoval-Venegas and we
reject it again today. “[U]nder California law, possession
requires knowledge.” Sandoval-Venegas, 292 F.3d at 1107
(citing People v. Meza, 45 Cal. Rptr. 2d 844, 846 (Ct. App.
1995)); People v. Harris, 99 Cal. Rptr. 2d 618, 620 (Ct. App.
2000) (“Unlawful possession of a controlled substance for
sale requires proof the defendant possessed the contraband
with the intent of selling it and with knowledge of both its
presence and illegal character.” (internal quotation omitted)).
We rely upon our holding in Sandoval-Venegas that
California’s possession for sale closely mirrors the
federal statute that criminalizes possession with
intent to distribute. See 21 U.S.C. § 841(a); United
States v. Cervantes, 219 F.3d 882, 893 n.11 (9th Cir.
2000) (“Constructive possession requires that the
defendant both knew of the controlled substance’s
presence and had the power to exercise dominion
and control over it.”)[, abrogated on other grounds
by Brigham City v. Stewart, 126 S. Ct. 1943 (2006)].
California does not, as [the defendant] argues, crimi-
18692 UNITED STATES v. MARTINEZ-RODRIGUEZ
nalize the mere power to control the narcotic;
instead, the offender must knowingly control it with
the specific intent to sell it or to have someone else
sell it.
Sandoval-Venegas, 292 F.3d at 1107 (citation omitted).
Next, Martinez argues that, because aiding and abetting lia-
bility is broader under California law than under federal law,
his convictions for violating section 11359 cannot categori-
cally qualify as drug trafficking offenses under the Sentencing
Guidelines. Martinez relies primarily on United States v.
Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc).
We noted in Corona-Sanchez that “[u]nder California law,
aiding and abetting liability is quite broad, extending even to
promotion and instigation.” Id. at 1208. Relying in part on
this broad conception of aiding-and-abetting liability, we held
that California’s general theft statute did not categorically
qualify as an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(G). Id.
However, Martinez’s sentence was enhanced not as an
aggravated felony under § 1101(a)(43), but rather under the
Sentencing Guidelines. The Sentencing Guidelines contain
the following application note which disposes of Martinez’s
argument: “Prior convictions of offenses counted under sub-
section (b)(1) include the offenses of aiding and abetting . . .
such offenses.” U.S.S.G. § 2L1.2 cmt. n.5. A conviction for
aiding and abetting a drug trafficking offense qualifies as a
predicate offense under the Guidelines.
[11] In conclusion, Sandoval-Venegas held that section
11359 “comfortably fits within the Guidelines’ definition” of
a controlled substance offense. 292 F.3d at 1107. The Guide-
lines’ definition of a drug trafficking offense does not differ,
in any way pertinent to this case, from the Guidelines’ defini-
tion of controlled substance offense. We hold that, under Tay-
lor’s categorical approach, the full range of conduct
UNITED STATES v. MARTINEZ-RODRIGUEZ 18693
proscribed by California Health and Safety Code section
11359 falls within the Guidelines’ definition of drug traffick-
ing offense. The district court did not err by relying on Marti-
nez’s two prior convictions for violating section 11359 to
enhance his sentence by sixteen levels under U.S.S.G.
§ 2L1.2(b)(1)(A).5
AFFIRMED.
5
At oral argument, government counsel suggested that Martinez’s 1997
conviction for transportation and sale of a controlled substance (cocaine)
under California Health and Safety Code section 11352(a) qualified as a
prior conviction for a drug trafficking offense under the Guidelines.
Because we hold that section 11359 is categorically a drug trafficking
offense, we do not reach this argument.