FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50100
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-01636-BTM-1
MARTIN VEGA-ORTIZ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, Chief District Judge, Presiding
Argued and Submitted
October 19, 2015—Pasadena, California
Filed May 6, 2016
Before: Andrew J. Kleinfeld, Johnnie B. Rawlinson,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Rawlinson
2 UNITED STATES V. VEGA-ORTIZ
SUMMARY*
Criminal Law
The panel affirmed a criminal judgment, and remanded
for correction of the judgment, in a case in which the district
court denied the defendant’s motion to dismiss an
information charging him with being found in the United
States after removal, in violation of 8 U.S.C. § 1326.
The panel held that the denial of the defendant’s motion
to dismiss was proper because his conviction under California
Health & Safety Code § 11378 constituted an aggravated
felony. The panel wrote that although a § 11378 conviction
is not categorically an aggravated felony, the modified
categorical approach applies because § 11378 is a divisible
statute. The panel wrote that there is no principled basis for
distinguishing this case from decisions holding that California
Health & Safety Code §§ 11377 and 11378 are divisible, or
from a decision assuming the divisibility of California Health
& Safety Code § 11379. The panel wrote that the defendant’s
contention that a federal regulation excluding pharmaceutical
products containing L-meth from the federal schedules
renders California’s definition of methamphetamine
overbroad is not persuasive, because the defendant failed to
show a realistic probability of prosecution for possession of
the excluded product.
The panel held that for similar reasons the district court
did not err in applying a sentencing enhancement pursuant to
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. VEGA-ORTIZ 3
U.S.S.G. § 2L1.2(b)(1)(B) on the ground that the defendant’s
§ 11378 conviction was a felony drug trafficking offense.
The panel remanded for correction of the judgment,
which erroneously states that the defendant pled guilty.
COUNSEL
Kara Hartzler (argued), Federal Defenders of San Diego, Inc.,
San Diego, California, for Defendant-Appellant.
Laura Duffy, United States Attorney, Bruce R. Castetter,
Chief, Appellate Section, Anne Kristina Perry (argued), Peter
Ko, and Mark R. Rehe, Assistant United States Attorneys,
San Diego, California, for Plaintiff-Appellee.
OPINION
RAWLINSON, Circuit Judge:
Petitioner Martin Vega-Ortiz (Vega-Ortiz) appeals the
district court’s denial of his motion to dismiss an information
charging him with being found in the United States after
removal, in violation of 8 U.S.C. § 1326. Vega-Ortiz
contends that his underlying deportation was invalid because
his prior conviction for possession for sale of a controlled
substance in violation of California Health & Safety Code
§ 11378 was not an aggravated felony. This Court’s recent
precedent forecloses Vega-Ortiz’s claim.
4 UNITED STATES V. VEGA-ORTIZ
I. BACKGROUND
In 2010, Vega-Ortiz pled guilty to possession for sale and
transportation of a controlled substance under California
Health & Safety Code §§ 11378 and 11379. In 2011, the
Department of Homeland Security placed Vega-Ortiz into
removal proceedings by filing a notice to appear (NTA). The
NTA charged Vega-Ortiz with removability as an alien who
entered the United States without permission, and who had
been convicted of a controlled substance offense and of an
“aggravated felony.” The Immigration Judge subsequently
ordered Vega-Ortiz removed from the United States, and
removal was effectuated in 2011.
Two years after his removal, a border patrol agent found
Vega-Ortiz and another individual hiding under some rocks
north of the U.S.-Mexico border. Vega-Ortiz acknowledged
to the agent that he was a native of Mexico and did not have
any documentation permitting his entry into this country.
Vega-Ortiz was subsequently charged with being a deported
alien found in the United States in violation of 8 U.S.C.
§ 1326.
Vega-Ortiz filed a motion to dismiss the information due
to the alleged invalidity of the underlying removal order.
Vega-Ortiz asserted that his prior removal violated due
process because his convictions for violations of California
Health & Safety Code §§ 11378 and 11379 did not qualify as
aggravated felonies. According to Vega-Ortiz, the California
provisions criminalized a broader range of controlled
substances than those included in the Federal Controlled
Substances Act, and the modified categorical approach did
not apply because the statutes are not divisible.
UNITED STATES V. VEGA-ORTIZ 5
The district court denied Vega-Ortiz’s motion to dismiss
the information. The court agreed with Vega-Ortiz that
§ 11378 was broader than the generic offense because it
criminalized “a broader swath” of drugs than the Federal
Controlled Substances Act, 21 U.S.C. § 802.1 However, the
court also determined that the statute was divisible and
subject to application of the modified categorical approach.
Because the statute was divisible and the record of conviction
established that Vega-Ortiz was convicted of possession for
sale and transportation of a federally controlled substance, the
court found no defect in the underlying removal order.
After denying Vega-Ortiz’s motion to dismiss the
information, the court presided over a bench trial, finding
Vega-Ortiz guilty of the charged offense.2 Vega-Ortiz then
filed a motion to reconsider, maintaining that even under the
modified categorical approach, the California statute
remained overbroad because the schedule of controlled
substances did not distinguish among the categories of
“methamphetamine” covered by the offense, while federal
law contained an exception for the category of “L-meth.”
Vega-Ortiz’s argument is premised on the content of 21
C.F.R. § 1308.22, which provides: “The following
nonnarcotic substances which may, under the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. § 301), be lawfully sold
over the counter without a prescription, are excluded from
all schedules pursuant to section 201(g)(1) of the Act
(21 U.S.C. § 811(g)(1)): . . . [50.00 mg or mg/ml of]
Levmethamfetamine (l-Desoxyephedrine)[.]” After the court
1
The court’s analysis applied equally to § 11379.
2
The judgment of conviction erroneously states that Vega-Ortiz pled
guilty. We remand for correction of this document.
6 UNITED STATES V. VEGA-ORTIZ
denied Vega-Ortiz’s motion for reconsideration, he filed a
timely notice of appeal.
II. STANDARD OF REVIEW
“We review de novo the denial of a motion to dismiss an
indictment under 8 U.S.C. § 1326 when the motion is based
on alleged due process defects in an underlying deportation
proceeding.” United States v. Alvarado-Pineda, 774 F.3d
1198, 1201 (9th Cir. 2014) (citation omitted). To sustain a
collateral attack predicated on a due process claim, a
defendant must establish that the underlying removal order
was “fundamentally unfair” due to: (1) defects in the
deportation proceedings that violated his or her due process
rights; and (2) prejudice from the defects. Id. (citation
omitted).
III. DISCUSSION
A. Vega-Ortiz’s Removal Order was Validly
Premised on His Conviction for Violating
California Health and Safety Code § 11378.
Vega-Ortiz contends that his prior deportation was invalid
because California Health & Safety Code § 11378 does not
categorically qualify as an aggravated felony, is not divisible,
and is not subject to application of the modified categorical
approach. In his view, the statute is fatally overbroad because
it criminalizes methamphetamine in all its forms, including its
salts, isomers, and salts of its isomers without containing an
exception for pharmaceutical products that contain “L-meth,”
although federal law excludes a particular product containing
L-meth.
UNITED STATES V. VEGA-ORTIZ 7
To determine whether Vega-Ortiz’s deportation was
validly premised on commission of an aggravated felony, we
first apply the “categorical approach” set forth in Taylor v.
United States, 495 U.S. 575 (1990). Descamps v. United
States, 133 S. Ct. 2276, 2283 (2013). Under this approach we
“compare the elements of the statute forming the basis of the
defendant’s conviction with the elements of the ‘generic’
crime . . .” Id. at 2281. It is undisputed by the parties and
settled by past precedent that Vega-Ortiz’s conviction is not
categorically an aggravated felony because the “full range of
conduct covered by [California Health & Safety Code]
§11378” does not “fall[] within” the Controlled Substances
Act schedules. United States v. Valdavinos-Torres, 704 F.3d
679, 688 (9th Cir. 2012) (alteration omitted).
If a conviction does not qualify as an aggravated felony
under the categorical approach, we proceed in a “narrow
range of cases” to apply the “modified categorical approach,”
which allows courts to “look beyond the statutory elements”
to a specified set of documents to determine whether a
defendant was convicted of an aggravated felony. Descamps,
133 S.Ct. at 2283–84 (citation omitted); see also Rendon v.
Holder, 764 F.3d 1077, 1083 (9th Cir. 2014). Importantly,
the modified categorical approach may be utilized only if the
statute of conviction is divisible. See Rendon, 764 F.3d at
1083. A statute is divisible if it sets forth multiple
“alternative elements” that create different crimes. Id. We
must examine the text of the statute to make this
determination. See id. at 1088 & n.12. We now proceed to
that examination. At the time of Vega-Ortiz’s conviction, the
text of California Health & Safety Code § 11378 provided in
pertinent part:
8 UNITED STATES V. VEGA-ORTIZ
Except as otherwise provided in Article 7
(commencing with Section 4211) of Chapter
9 of Division 2 of the Business and
Professions Code, every person who possesses
for sale any controlled substance which is
(1) classified in Schedule III, IV, or V and
which is not a narcotic drug, except
subdivision (g) of Section 11056, (2) specified
in subdivision (d) of Section 11054, except
paragraphs (13), (14), (15), (20), (21), (22),
and (23) of subdivision (d), (3) specified in
paragraph (11) of subdivision (c) of Section
11056, (4) specified in paragraph (2) or (3) of
subdivision (f) of Section 11054, or
(5) specified in subdivision (d), (e), or (f),
except paragraph (3) of subdivision (e) and
subparagraphs (A) and (B) of paragraph (2) of
subdivision (f), of Section 11055, shall be
punished by imprisonment in the state prison.
Cal. Health & Saf. Code § 11378 (2010).
We have previously held that § 11378 is a divisible
statute. See Padilla-Martinez v. Holder, 770 F.3d 825, 831
n.3 (9th Cir. 2014). We reasoned that § 11378 lists five
alternative categories of controlled substances in the
disjunctive and that under California law the type of
controlled substance is a separate element of a drug offense.
See id.
As we recognized in Coronado, the text of the statute is
not particularly helpful to our analysis because it defines
offenses through reference to other statutes. See 759 F.3d at
983. We noted that the text of California Health & Safety
UNITED STATES V. VEGA-ORTIZ 9
Code § 11377 is virtually identical to the language of the
Federal Controlled Substances Act. See id. & Appendix 1.
Similarly, the language of § 11377 is virtually identical to the
language of § 11378. Compare Cal. Health & Saf. Code
§ 11377 with Cal. Health & Saf. Code § 11378. In Coronado,
we concluded that § 11377 is divisible because it “effectively
creates several different crimes . . .” 759 F.3d at 985
(citations omitted); see also Ruiz-Vidal v. Lynch, 803 F.3d
1049, 1054 (9th Cir. 2015) (assuming the divisibility of
California Health & Safety Code § 11379). No principled
basis exists for distinguishing this case from our holdings in
Coronado and Padilla-Martinez and our reasoning in Ruiz-
Vidal.
Nevertheless, Vega-Ortiz rests his challenge to the
divisibility of § 11378 primarily on the existence of a federal
regulation he describes as excluding a particular product
containing L-meth from the definition of methamphetamine
salts, isomers and salts of its isomers. See 21 C.F.R.
§§ 1308.12(d)(2); 1308.22. According to Vega-Ortiz, this
discrepancy precludes application of the modified categorical
approach to § 11378. We disagree. The conclusion that
§ 11378 is divisible is consistent with our analysis in Rendon,
where we explained that “the Supreme Court regards
elements as those circumstances on which the jury must
unanimously agree . . .” 764 F.3d at 1086 (emphasis in the
original). In keeping with this analysis, § 11378 has been
interpreted to require a jury to specify the substance a
defendant possessed. See e.g., 2 Witkin & Epstein, California
Criminal Law § 102 (4th ed. 2012) (“The possession offenses
all involve the following elements: (a) A specified controlled
substance in a sufficient quantity and in a usable form . . . ”);
see also California Criminal Jury Instruction 2302 (“The
defendant is charged in [Count __] with possession for sale
10 UNITED STATES V. VEGA-ORTIZ
of ____ . . .). The
California courts adhere to this instruction. See e.g., People
v. Montero, 155 Cal. App. 4th 1170, 1175–77 (2007).
Therefore, it is well-settled that California treats the identity
of a controlled substance as an element that must be found by
the jury, further supporting the conclusion that § 11378 is
divisible. See Rendon, 764 F.3d at 1088–89.
Vega-Ortiz nevertheless maintains that the federal
regulation excluding a particular product containing L-meth
from the schedule of federal controlled substances renders
California’s definition of methamphetamine broader than the
definition of controlled substances in the Controlled
Substances Act. However, in addressing a similar argument
regarding an exemption for “administering” controlled
substances that existed under federal law but not Washington
state law, we focused on whether the defendant showed a
“realistic probability” that a person would be prosecuted for
the offense that assertedly rendered the state statute
overbroad. United States v. Burgos-Ortega, 777 F.3d
1054–55 (9th Cir. 2015); see also Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007) (“[T]o find that a state
statute creates a crime outside the generic definition of a
listed crime in a federal statute requires . . . a realistic
probability . . . that the state would apply its statute to
conduct that falls outside the generic definition of a
crime. . . .”). Applying this analysis to the facts here, to
succeed on his claim Vega-Ortiz would need to show a
“realistic probability” that he would be prosecuted under
§ 11378 for possession of the excluded product containing L-
meth. Burgos-Ortega, 777 F.3d at 1054. He has failed to do
so. As in Burgos-Ortega, § 11378 is not “overbroad on its
face” and “does not expressly include conduct not covered by
the generic offense, but rather is silent as to the existence of
UNITED STATES V. VEGA-ORTIZ 11
a parallel [L-meth] exception.” 777 F.3d at 1055. Thus,
Vega-Ortiz’s overbreadth arguments are unavailing, and we
conclude that the district court properly applied the modified
categorical approach to § 11378.
B. The District Court Correctly Imposed a
Sentencing Enhancement for Drug Trafficking.
For the same reasons that Vega-Ortiz’s conviction under
§ 11378 qualified as an aggravated felony, the district court
properly imposed a drug trafficking sentence enhancement.
Section 2L1.2 of the United States Sentencing Guidelines,
permits a 12-level increase to the base offense level if a
defendant was convicted of a “felony drug trafficking
offense.” U.S.S.G. § 2L1.2(b)(1)(B). A drug trafficking
offense is “an offense under federal, state, or local law that
prohibits the manufacture, import, export, distribution, or
dispensing of, or offer to sell a controlled substance . . . or the
possession of a controlled substance . . . with intent to
manufacture, import, export, distribute, or dispense.” Id.
§ 2L1.2, Application Note 1(B) (2013). As previously
discussed, the California statute of conviction prohibits
possession of a controlled substance with the intent to
distribute. See Cal. Health & Saf. Code § 11378. Thus, the
district court’s application of the 12-level sentencing
enhancement was permissible.
IV. CONCLUSION
The district court’s denial of Vega-Ortiz’s motion to
dismiss was proper because his conviction under California
Health & Safety Code § 11378 constituted an aggravated
felony. The court correctly concluded that although § 11378
was not categorically an aggravated felony, application of the
12 UNITED STATES V. VEGA-ORTIZ
modified categorical approach resulted in a determination that
Vega-Ortiz was indeed convicted of an aggravated felony.
Vega-Ortiz’s reliance on the federal regulation excluding a
particular product containing L-meth from inclusion in the
federal schedules is not persuasive, because Vega-Ortiz failed
to show a “realistic probability” of prosecution for possession
of the excluded product. Finally, for similar reasons the
district court did not err in applying a sentencing
enhancement for a prior drug trafficking conviction.
AFFIRMED and REMANDED for correction of
judgment.