United States v. Antonio Galarza-Bautista , 585 F. App'x 744 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 01 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50517
Plaintiff - Appellee, D.C. No. 3:12-cr-02723-MMA-1
v.
MEMORANDUM*
ANTONIO GALARZA-BAUTISTA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted November 21, 2014
Pasadena, California
Before: W. FLETCHER and BYBEE, Circuit Judges, and EZRA, District Judge.**
Antonio Galarza-Bautista appeals his conviction under 8 U.S.C. § 1326.
Because any alien who is convicted of an aggravated felony at any time after
admission is ineligible for any relief from removal, 8 U.S.C. §§ 1227(a)(2)(A)(iii),
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
1228(b)(5), an underlying aggravated felony conviction dooms any claim for relief
based on a collateral attack of a predicate removal order in a prosecution for illegal
reentry under 8 U.S.C. § 1326. See, e.g., United States v. Garcia-Martinez, 228
F.3d 956, 963–64 (9th Cir. 2000). As relevant here, “aggravated felony” includes
“illicit trafficking in a controlled substance (as defined in section 802 of Title 21),
including a drug trafficking crime (as defined in section 924(c) of Title 18).” 8
U.S.C. § 1101(a)(43)(B).
Galarza-Bautista was convicted under North Carolina General Statutes
Section 90-95(h)(3), which provides that “[a]ny person who sells, manufactures,
delivers, transports, or possesses 28 grams or more of cocaine . . . shall be guilty of
a felony, which felony shall be known as ‘trafficking in cocaine[.]’” This statute is
overbroad, as it covers simple possession, which is not a drug trafficking offense
within the meaning of 18 U.S.C. § 924(c) or a drug offense with a trafficking
element. See Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 918 (9th Cir. 2004).
However, it is divisible. By setting off alternative elements of the crime of
“trafficking in cocaine” with the disjunctive “or,” the text appears divisible on its
face. This reading is confirmed by the North Carolina courts, which have held that
subsection (h)(3) creates multiple, independent crimes. See State v. Wiggins, 648
S.E.2d 865, 872–74 (N.C. Ct. App. 2007) (analyzing the sufficiency of the
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evidence for charges under subsection (h)(3) for trafficking in cocaine under both
the possession and transportation alternatives); State v. Garcia, 433 S.E.2d 187,
190 (N.C. Ct. App. 1993) (holding that subsection (h)(3) creates “separate
trafficking offenses for which a defendant may be separately convicted and
punished”); cf. State v. Hartness, 391 S.E.2d 177, 179 (N.C. 1990) (holding that
subsection (h)(1), which covers marijuana trafficking crimes, enumerates “discrete
criminal offense[s]” for sale, manufacturing, delivery, transportation, and
possession).
Because the statute is divisible, we apply the modified categorical approach.
Under that approach, we examine “the terms of the charging document”; “recorded
judicial acts of [the court of conviction] limiting convictions to the generic
category, as in giving instruction to the jury” or “formal rulings of law and findings
of fact”; and the “transcript of colloquy between [the] judge and [the] defendant in
which the factual basis for the plea was confirmed by the defendant.” Shepard v.
United States, 544 U.S. 13, 20, 26 (2005). Galarza-Bautista incurred two
convictions for violation of Section 90-95(h)(3) in October 2005 as the result of a
guilty plea. The indictment for one offense charged Galarza-Bautista with “selling
. . . 28 grams or more but less than 200 grams of cocaine” on June 5, 2003. The
plea colloquy demonstrates that both charges were based on the sale of more than
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28 grams of cocaine to the same undercover officer. Galarza-Bautista’s attorney
did not dispute the facts presented in the plea colloquy, and indeed confirmed that
his client’s motivation for the relevant conduct was “to make some quick money.”
It is clear based on the underlying documents that both convictions were under the
“sale” element of Section 90-95(h)(3). The sale of a controlled substance is a drug
trafficking crime for purposes of 8 U.S.C. § 1101(a)(43)(B). See Lopez v.
Gonzalez, 549 U.S. 47, 53 (2006); Rendon v. Mukasey, 520 F.3d 967, 975–76 (9th
Cir. 2008).
Galarza-Bautista also claims that the court improperly imposed a 16-level
sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i). However, we have
established that selling a controlled substance qualifies as “distribution” under the
Sentencing Guidelines. See United States v. Almazan-Becerra, 537 F.3d 1094,
1099 (9th Cir. 2008).
AFFIRMED.
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