FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-50876
Plaintiff-Appellee,
v. D.C. No.
CR-04-02116-MJL
MANUEL JESUS VALLE-MONTALBO,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Submitted October 19, 2006*
Pasadena, California
Filed February 2, 2007
Before: Raymond C. Fisher and Consuelo M. Callahan,
Circuit Judges, and Raner C. Collins,** District Judge.
Opinion by Judge Callahan
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**Honorable Raner C. Collins, United States District Judge for the Dis-
trict of Arizona, sitting by designation.
1255
1258 UNITED STATES v. VALLE-MONTALBO
COUNSEL
Cristina Gabrielidis, San Diego, California, for defendant-
appellant Manuel Jesus Valle-Montalbo.
Carol C. Lam, United States Attorney for the Southern Dis-
trict of California, San Diego, California; Roger W. Haines,
Jr., Assistant U.S. Attorney, Chief, Appellate Section Crimi-
nal Division, San Diego, California; Richard C. Cheng, Assis-
tant United States Attorney, San Diego, California, for
plaintiff-appellee the United States of America.
OPINION
CALLAHAN, Circuit Judge:
INTRODUCTION
Manuel Jesus Valle-Montalbo (“Valle-Montalbo”) appeals
his sentence for illegal re-entry into the United States after
deportation in violation of 8 U.S.C. § 1326. In particular,
Valle-Montalbo challenges an enhancement of his sentence
under United States Sentencing Guidelines (“U.S.S.G.” or
“Guidelines”) § 2L1.2(b)(1)(A) based on his prior conviction
for possessing methamphetamine for sale in violation of Cali-
fornia Health & Safety Code § 11378. We must determine
whether a violation of Health & Safety Code § 11378 is a
“drug trafficking offense” under § 2L1.2(b)(1)(A). We con-
clude that it is and affirm Valle-Montalbo’s sentence.
On October 31, 2005, the district court accepted Valle-
Montalbo’s guilty plea for illegal re-entry and heard argument
regarding sentencing. The district court found that there was
sufficient proof that Valle-Montalbo suffered a prior drug
trafficking conviction for violating Health & Safety Code
§ 11378, and imposed an enhancement of 16 levels under
UNITED STATES v. VALLE-MONTALBO 1259
§ 2L1.2(b)(1)(A)(i). The district court sentenced Valle-
Montalbo to 70 months in prison, followed by three years of
supervised release. Valle-Montalbo filed a timely notice of
appeal. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742.
STANDARDS OF REVIEW
We review a district court’s determination that a prior con-
viction qualifies for a sentencing enhancement under U.S.S.G.
§ 2L1.2 de novo. United States v. Villa-Lara, 451 F.3d 63, 64
(9th Cir. 2006). We review de novo whether a sentence vio-
lates Apprendi v. New Jersey, 530 U.S. 466 (2000). See
United States v. Pina-Jaime, 332 F.3d 609, 611 (9th Cir.
2003).
DISCUSSION
Valle-Montalbo raises three issues on appeal. First, he
argues that his prior conviction under Health & Safety Code
§ 11378 is not a drug trafficking offense under the categorical
approach set forth in the Supreme Court’s decision in Taylor
v. United States, 495 U.S. 575 (1990), because § 11378 crimi-
nalizes conduct that is not drug trafficking under the guide-
lines. Under Guidelines § 2L1.2(b)(1)(A)(i), a prior removal
following a drug trafficking felony conviction results in a 16-
level increase to the base offense level for illegal re-entry.1
Second, Valle-Montalbo contends that the district court com-
mitted reversible error by finding the prior conviction true by
a preponderance of the evidence and not requiring that the
fact of his prior conviction be pled and proven beyond a rea-
sonable doubt. Finally, Valle-Montalbo claims that Apprendi
1
Guidelines § 2L1.2(b)(1)(A)(i) provides for a 16-level enhancement
after “a conviction for a felony that is a drug trafficking offense for which
the sentence imposed exceeded 13 months.” Valle-Montalbo does not con-
test that he received a sentence exceeding 13 months for violating Health
& Safety Code § 11378.
1260 UNITED STATES v. VALLE-MONTALBO
v. New Jersey, 530 U.S. 466 (2000), prohibited the district
court from applying 8 U.S.C. § 1326(b) to raise his statutory
maximum sentence beyond two years.
I.
A. Valle-Montalbo’s conviction under California Health &
Safety Code § 11378 is categorically a drug trafficking
offense under U.S.S.G. § 2L1.2.
[1] Under the Supreme Court’s categorical approach to
determining whether prior convictions under state or local
statutes can be used for federal sentence enhancements, the
courts should “look only to the fact of conviction and the stat-
utory definition of the prior offense.” Taylor, 495 U.S. at 602.
If “the statute criminalizes conduct that would not constitute
a drug trafficking offense under federal sentencing law,” then
the prior conviction does not categorically qualify as a basis
for enhancing the defendant’s sentence.2 United States v.
Morales-Perez, 467 F.3d 1219, 1221 (9th Cir. 2006) (internal
quotations and brackets omitted).
[2] The sentencing guidelines define a “drug trafficking
offense” as “an offense under federal, state, or local law that
prohibits . . . the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import,
export, distribute, or dispense.” U.S.S.G. § 2L1.2 cmt.
n.1(B)(iv).
[3] California Health & Safety Code § 11378 states in rele-
vant part: “[E]very person who possesses for sale any con-
trolled substance which is . . . specified in subdivision (d), (e),
2
If “the conviction does not qualify as a predicate offense,” under the
categorical approach, then the district court goes further and determines if
the conduct that resulted in a conviction violates federal law under the
modified categorical approach. United States v. Casarez-Bravo, 181 F.3d
1074, 1077 (9th Cir. 1999).
UNITED STATES v. VALLE-MONTALBO 1261
or (f) . . . of Section 11055, shall be punished by imprison-
ment in the state prison.” California Health & Safety Code
§ 11055, subdivision (d), subsection (2) lists “Methamphet-
amine, its salts, isomers, and salts of its isomers” as controlled
substances. The plain text of California Health & Safety Code
§ 11378 criminalizes only possession for sale. For example, in
People v. Cuevas, the California Court of Appeal explained
that under California law, “possession for sale and transporta-
tion are independent crimes and a person may be legally con-
victed of both, although the possession in each charge arises
out of the same act.”3 16 Cal. App. 3d 245, 250 (Cal. Ct. App.
1971). It further stated that “the possession of a dangerous
drug for sale has the additional element, not found in trans-
porting, that the possessor must have the purpose of selling
the dangerous drug.”4 Id. Thus, like § 2L1.2, § 11378 incorpo-
rates an intent requirement. See also People v. Harris, 83 Cal.
App. 4th 371, 374 (Cal. Ct. App. 2000); cf. Villa-Lara, 451
F.3d at 965 (holding that Nevada Rev. Stat. § 453.3385 was
not categorically a “drug trafficking offense” because it did
not require an intent to sell). Both the plain text of Health &
Safety Code § 11378, and California case law confirm that
§ 11378 only criminalizes possession of dangerous drugs with
the intent to sell them.
[4] It follows that under the Taylor categorical approach,
Valle-Montalbo’s prior conviction for violating Health &
Safety Code § 11378 is a drug trafficking offense under
§ 2L1.2. Therefore the district court properly applied the 16-
level enhancement to Valle-Montalbo’s sentence for illegal
re-entry.
3
People v. Cuevas analyzed the former California Health & Safety Code
§ 11911, which became Health & Safety Code § 11378 in 1972. See Cal.
Stats 1972 ch. 1407 § 3.
4
Under California law, mere possession of methamphetamine is a viola-
tion of Health & Safety Code § 11377, and transportation or actual sale is
a violation of Health & Safety Code § 11379.
1262 UNITED STATES v. VALLE-MONTALBO
B. The California Court of Appeal’s recent decision in
People v. Morgan did not expand the scope of § 11378.
[5] Valle-Montalbo argues that a California Court of
Appeal in People v. Morgan, 125 Cal. App. 4th 935, 938 (Cal.
Ct. App. 2005), expanded Health & Safety Code § 11378 to
include the defendant’s receipt of a third party’s solicitation
to purchase. We reject this argument. The California Court of
Appeal did not criminalize the mere receipt of a request to
buy drugs, but rather it simply decided that such a request is
admissible evidence of the defendant’s intent to sell metham-
phetamine notwithstanding the hearsay rule. Id. at 937.
In People v. Morgan, narcotics officers executed a search
warrant to search for evidence of the sale of methamphet-
amine. Id. at 938. The officers found approximately $600, a
day planner with names and numbers consistent with a pay-
owe sheet, another pay-owe sheet in Ms. Morgan’s purse,
some bagging materials, a scale with residue on it, .55 grams
of methamphetamine on a game board and .81 grams of
methamphetamine in a tobacco tin. Id. During the search, the
telephone rang and a detective answered. Id. at 939. The
caller asked for Ms. Morgan, stated that he needed drugs, and
asked if they had any drugs. Id. The jury convicted Ms. Mor-
gan and her co-defendant of violating Health & Safety Code
§ 11378, possession of methamphetamine for sale. Id. at 940.
The statements of the caller were admissible because they
were relevant, circumstantial evidence that the drugs found
were possessed for sale. Id. at 942.
[6] The California Court of Appeal concluded that “under
the provisions of California’s Evidence Code the caller’s oral
expressions are hearsay, but that case law, recognized and
accepted when the Evidence Code was adopted and continu-
ing thereafter, has created an exception to the hearsay rule for
this reliable type of evidence.” Id. at 937. In addition, the
Court of Appeal decided that the phone call did not violate the
defendants’ Sixth Amendment Confrontation Clause rights.
UNITED STATES v. VALLE-MONTALBO 1263
Id. at 946-47. The court did not suggest that the mere receipt
of the solicitation was sufficient to support a conviction under
§ 11378. Therefore, People v. Morgan did not expand the
scope of Health & Safety Code § 11378, and does not alter
our analysis under the Taylor categorical approach.
II.
[7] Turning to Valle-Montalbo’s contention that the district
court erred by finding that the government’s burden of proof
to establish his prior conviction was a preponderance of the
evidence, we conclude that there was clear and convincing
evidence of his prior conviction, and therefore if there was
error, it was harmless. A trial court may rely upon the abstract
of judgment and charging document to conclude there is clear
and convincing evidence that the defendant had a qualifying
conviction under U.S.S.G. § 2L1.2(b)(1)(A). See United
States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir.
2005) (finding reliance on abstract and statute sufficient to
find a prior drug trafficking conviction.). In this case, the dis-
trict court specifically relied on the abstract of judgment and
the charging document in finding that Valle-Montalbo suf-
fered the prior conviction. Furthermore, Valle-Montalbo
offered no evidence to contradict the documentary evidence
of his conviction. Therefore, there was clear and convincing
evidence showing that Valle-Montalbo suffered a prior con-
viction for violating California Health & Safety Code
§ 11378. Even if the district court erred by applying a prepon-
derance of the evidence standard, in light of the clear and con-
vincing evidence of Valle-Montalbo’s prior conviction, any
error was harmless.
III.
[8] Finally, Valle-Montalbo’s argument that the Supreme
Court’s decisions in Apprendi and Blakely v. Washington, 542
U.S. 296 (2004), require that his prior conviction be pled and
proved as an element of the offense before enhancing his sen-
1264 UNITED STATES v. VALLE-MONTALBO
tence beyond the two-year statutory maximum is foreclosed
by the Supreme Court’s decision in Almendarez-Torres v.
United States, 523 U.S. 224, 247 (1998), and our precedents
continuing to apply Almendarez-Torres after Blakely. In
Almendarez-Torres, the United States Supreme Court stated
that recidivism does not need to be treated as an element of
8 U.S.C. § 1326 for the purposes of sentencing a defendant to
a term over the two year maximum sentence. 523 U.S. at 247.
We have previously rejected the argument that a prior convic-
tion must be pled and proved and we continue to apply
Almendarez-Torres. See United States v. Weiland, 420 F.3d
1062, 1079-80 fn. 16 (9th Cir. 2005) (“[W]e are bound to fol-
low a controlling Supreme Court precedent until it is explic-
itly overruled by that Court.”); see also United States v.
Morales-Perez, 467 F.3d at 1223 (holding that the argument
that the Supreme Court overruled Almendarez-Torres in
Blakely v. Washington, is foreclosed by Ninth Circuit prece-
dent.). Therefore, we follow Weiland and Morales-Perez and
conclude that the district court properly enhanced Valle-
Montalbo’s sentence based on the prior conviction.
CONCLUSION
For the foregoing reasons, we hold that California Health
& Safety Code § 11378 is categorically a drug trafficking
offense under U.S.S.G. § 2L1.2. We also conclude that the
district court relied upon clear and convincing evidence that
Valle-Montalbo had been previously convicted of a drug traf-
ficking offense and properly enhanced his sentence based on
that prior conviction. Accordingly, Valle-Montalbo’s sentence
is AFFIRMED.