FILED
NOT FOR PUBLICATION SEP 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50142
Plaintiff - Appellee, D.C. No. 3:10-cr-00034-LAB-1
v.
MEMORANDUM *
REGNALDO VARGAS-MENDOZA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted March 10, 2011
Pasadena, California
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
Regnaldo Vargas-Mendoza appeals his sentence for illegal reentry after
removal in violation of 8 U.S.C. § 1326. Vargas-Mendoza argues that his prior
state conviction for possession of cocaine with intent to deliver under Wash. Rev.
Code § 69.50.401 is not categorically a “drug trafficking offense” warranting a 16
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
level increase in his offense level under U.S.S.G. § 2L1.2(b)(1)(A)(i). He also
contends that the district court procedurally erred by failing to explain its decision
to apply the 16 level increase, and that the government was required to charge and
prove to a jury the fact of his prior conviction, contrary to the holding in
Almendarez-Torres v. United States, 523 U.S. 224 (1998). We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
1. The district court properly concluded that a conviction under Wash. Rev.
Code § 69.50.401 is categorically a conviction for a “drug trafficking offense” as
defined by U.S.S.G. § 2L1.2(b)(1)(A)(i). We look to the statute of conviction to
determine whether the state statute potentially criminalizes conduct that would not
qualify as a “drug trafficking offense” as defined in the Guidelines. Taylor v.
United States, 495 U.S. 575, 588-89 (1990); United States v. Shumate, 329 F.3d
1026, 1029 (9th Cir. 2003).
Vargas-Mendoza contends that because he could be convicted as a principal
for mere solicitation under the state of Washington’s complicity statute, Wash.
Rev. Code. § 9A.08.020(3), the statute of conviction criminalizes conduct beyond
that included in the definition of “drug trafficking offense.” While Vargas is
correct that there exists a possibility that one could be convicted under the state
statute as a principal on a theory of accomplice liability, this theory of liability falls
within the definition of “drug trafficking offense.” The Commentary to U.S.S.G. §
2L1.2 instructs that “[p]rior convictions of offenses counted under subsection
(b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to
commit such offenses.” U.S.S.G. § 2L1.2 cmt. n.5 (“note 5”). This list of included
offenses is not exhaustive. See U.S.S.G. § 1B1.1 cmt. n.2. Therefore, the
“omission of solicitation from the list does not carry legal significance.” Shumate,
329 F.3d at 1030 (quoting United States v. Cox, 74 F.3d 189, 190 (9th Cir. 1996));
see also United States v. Contreras-Hernandez, 628 F.3d 1169, 1172 (9th Cir.
2011).
We have previously held that solicitation is “sufficiently similar” to the
offenses listed in note 5 to be encompassed within § 2L1.2 because “the mens rea
and actus reus required for solicitation are similar to those required for aiding and
abetting, conspiracy and attempt.” Id. at 1173 (quoting United States v. Cornelio-
Pena, 435 F.3d 1279, 1286 (10th Cir. 2006)); see Cornelio-Pena, 435 F.3d at 1288
(finding that a solicitation conviction was sufficiently similar to the other
enumerated offenses because it required proof that the defendant intended the
underlying crime to be committed). A person can be convicted under Washington
law as a principal only where an intent to facilitate the underlying crime is found.
State v. Rotunno, 631 P.2d 951, 952 (Wash. 1981) (citing In re Wilson, 588 P.2d
1161 (Wash. 1979)); State v. Galisia, 822 P.2d 303, 307 (Wash. Ct. App. 1992)
(“[I]t is the intent to facilitate another in the commission of a crime by providing
assistance through his presence or his act that makes the accomplice criminally
liable”). Because solicitation satisfies the definition of drug trafficking offenses in
§ 2L1.2, the district court did not err in increasing Vargas-Mendoza’s offense level
by 16.1
2. The district court did not procedurally err by failing to explain why
Vargas-Mendoza’s 1992 conviction was categorically a drug trafficking offense
warranting a 16 level increase under § 2L1.2. The district court’s explanation must
be sufficient “to permit meaningful appellate review.” United States v. Carty, 520
F.3d 984, 992 (9th Cir. 2008) (citing Rita v. United States, 551 U.S. 338, 356
(2007)). Though a detailed explanation is not necessary where “‘the record makes
clear that the sentencing judge considered the evidence and arguments.’” United
States v. Daniels, 541 F.3d 915, 922 (9th Cir. 2008) (quoting Rita, 551 U.S. at
359).
The district court stated that it reviewed and considered Vargas-Mendoza’s
criminal history report and his objections to that report, his sentencing
memorandum and the government’s response, the government’s sentencing
1
Moreover, Vargas-Mendoza failed to identify a single Washington case
where a conviction for violating Wash. Rev. § 69.50.401(a) was based on a theory
of solicitation. See 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 more than the application of legal imagination to
a state statute’s language.”).
summary chart, the abstract of the state judgment, and other plea documents. After
reviewing these documents, the district court stated that the calculations in the
government’s sentencing summary, which included the 16 level increase, were
correct. Because the district court adequately considered the arguments and
evidence in the record, it did not procedurally err by failing to provide any further
explanation.
3. The government was not required to charge and prove the fact of Vargas-
Mendoza’s prior conviction to a jury. The Supreme Court’s decision in Nijhawan
v. Holder, 129 S. Ct. 2294 (2009), did not overrule its previous holding in
Almendarez-Torres v. United States, 523 U.S. 224 (1998), that § 1326(b)
constitutes a sentencing provision rather than a separate element. We rejected that
argument in United States v. Valdovinos-Mendez, 641 F.3d 1031 (9th Cir. 2011),
where we held that the opinion in Nijhawan, “does not cast doubt on the continuing
validity of the Court’s clear holding in Almendarez-Torres.” Id. at 1036.
AFFIRMED.