FILED
NOT FOR PUBLICATION
AUG 03 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50245
Plaintiff-Appellant, D.C. No.
2:14-cr-00661-DMG-1
v.
SERGIO MARTINEZ, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted August 4, 2016
Pasadena, California
Before: REINHARDT, KOZINSKI, and WARDLAW, Circuit Judges.
Sergio Martinez was charged with illegal reentry in violation of 8 U.S.C.
§ 1326(a), (b)(2) in November 2014. The district court dismissed the indictment
under 8 U.S.C. § 1326(d) on the ground that Martinez’s earlier removal was
fundamentally unfair because Martinez had not been advised during the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
immigration proceedings that he could apply for voluntary departure instead of
being removed.
1. The district court erred in dismissing Martinez’s indictment for illegal
reentry based on its conclusion that Martinez was prejudiced at his 2004 removal
hearing by the failure to inform him of his eligibility for voluntary departure. At
the time of Martinez’s removal hearing, he had two convictions for violating
California Health and Safety Code § 11378. A violation of Section 11378 is an
“aggravated felony,” United States v. Vega-Ortiz, 822 F.3d 1031, 1035-36 (9th Cir.
2016); see also 8 U.S.C. § 1101(a)(43)(B), and these convictions thus made
Martinez statutorily ineligible to receive voluntary departure, 8 U.S.C.
§ 1229c(a)(1). As a result, Martinez cannot prove prejudice because “an alien who
is statutorily barred from obtaining relief from removal cannot be prejudiced by an
IJ’s failure to inform him about the possibility of applying for such relief.” United
States v. Bustos-Ochoa, 704 F.3d 1053, 1057 (9th Cir. 2012).
2. Martinez argues that the district court’s ruling can be affirmed on the
alternative ground that he was not removable as charged in 2004 because the
conviction cited in his Notice to Appear was not categorically a controlled
substance offense under Mathis v. United States, 136 S. Ct. 2243 (2016). This
argument is foreclosed by United States v. Martinez-Lopez, No. 14-50014, slip op.
2
at 21 (9th Cir. July 28, 2017) (en banc), in which we held that California’s
controlled substance statutes are divisible with respect to the listed substances.
Because California Health & Safety Code § 11379 is divisible in this respect, the
panel may look at Martinez’s Shepard documents to determine whether he was
convicted of an offense that also constitutes a controlled substances offense under
the generic federal definition. See Mathis, 136 S. Ct. at 2249. The felony
complaint charging Martinez with a violation of Section 11379 states that Martinez
“did unlawfully transport methamphetamine.” Methamphetamine is criminalized
under the Controlled Substances Act, see 21 U.S.C. § 812, Schedule II(c),
Schedule III(a)(3), and Martinez’s offense thus fits within the federal statutory
definition of a controlled substances offense.
Accordingly, the district court erred in dismissing the indictment. We
therefore REVERSE its decision and REMAND for further proceedings
consistent with this disposition.
3