FILED
NOT FOR PUBLICATION
JUL 22 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50092
Plaintiff - Appellee, D.C. No. 3:14-cr-02304-DMS-1
v.
MEMORANDUM*
LUIS ALEJANDRO RODRIGUEZ-MUNOZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted July 8, 2016
Pasadena, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and CHEN,** District Judge.
Defendant Luis Rodriguez-Munoz appeals the sentence imposed by the
district court for a violation of 8 U.S.C. § 1326, to which the district court, in
calculating the appropriate range under the advisory sentencing guidelines, applied
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
a 16-level enhancement based on Rodriguez’s prior conviction for a “drug
trafficking offense.” We affirm.
We review de novo whether a prior conviction is a “drug trafficking offense”
under the guidelines. United States v. Jennen, 596 F.3d 594, 600 (9th Cir. 2010);
United States v. Jackson, 697 F.3d 1141, 1144 (9th Cir. 2012) (per curiam).
Under the guidelines, a “drug trafficking offense” is “an offense under
federal, state, or local law that prohibits . . . the possession of a controlled
substance . . . with intent to manufacture, import, export, distribute, or dispense.”
U.S.S.G. § 2L1.2, cmt. n.1(B)(iv). A conviction for such an offense that resulted
in a sentence exceeding thirteen months provides the basis for a 16-level
enhancement. U.S.S.G. § 2L1.2(b)(1)(A)(i). A “controlled substance” for the
purposes of the Guidelines is a substance listed in the federal Controlled
Substances Act (“CSA”). United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th
Cir. 2012).
Rodriguez was previously convicted for possession or purchase for sale of a
controlled substance in violation of California Health & Safety Code § 11351 and
received a two-year sentence. That statute is not a categorical match to the generic
federal “drug trafficking offense.” Leal-Vega, 680 F.3d at 1162 (holding that
section 11351 is broader than the CSA and is therefore not a categorical “drug
2
trafficking offense” under the Guidelines); Ruiz-Vidal v. Gonzales, 473 F.3d 1072,
1078 (9th Cir. 2006) (finding no categorical fit because “California law regulates
the possession and sale of numerous substances that are not similarly regulated by
the CSA”). But Rodriguez concedes that section 11351 is divisible – thereby
waiving any contrary argument – so the modified categorical approach may be
applied. See United States v. Torre-Jimenez, 771 F.3d 1163, 1166-67 (9th Cir.
2014) (holding that section 11351 is divisible).
Under the modified categorical approach, enquiry is limited to the elements
of the conviction and the “Shepard-approved” documents supporting the
enhancement. Descamps v. United States, 133 S. Ct. 2276, 2281-82 (2013);
Shepard v. United States, 544 U.S. 13, 26 (2005). An enhancement is
inappropriate if the link between the charging documents and the defendant’s plea
is unclear. But that is not the case here.
The government has demonstrated that Rodriguez pled to possession of
heroin for sale based on the complaint, the change-of-plea form, the plea colloquy
transcript, and the docket sheet. We are not persuaded by Rodriguez’s arguments
that there were ambiguities in the record which required his plea to contain “as
charged in” language under United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir.
2007) (en banc).
3
There was no ambiguity because the documents supporting the
section 11351 conviction all linked Rodriguez’s guilty plea to “Count 1,” which
specified that the substance in question was heroin, a substance on the federal list.
The relevant definition of “Count 1” was provided in the complaint. See United
States v. Valdavinos-Torres, 704 F.3d 679, 689 (9th Cir. 2012) (holding that the
documents present in the record were sufficient to make clear that the defendant
pled guilty to possession of methamphetamine because they all referenced “Count
2,” which was defined in the complaint). The reference in the change of plea form
to dismissal of “all other counts/charges/allegations” did not alter Count 1 or its
identification of heroin as the substance in question. The additional allegation in
Count 1 of the complaint regarding drug quantity may have been dismissed, but
not the charge that Rodriguez “did unlawfully possess for sale and purchase for
sale a controlled substance, to wit, Heroin.”1
AFFIRMED.
1
The government’s motion to supplement the record, filed August 11, 2015,
is denied as moot, as the government subsequently withdrew the appeal waiver
argument, and the appeal has been resolved on the merits.
4