United States v. Carlos Escobar ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 17 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50228
Plaintiff-Appellee, D.C. No.
3:12-cr-05213-JAH-1
v.
CARLOS ARMANDO ESCOBAR, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted June 9, 2016
Pasadena, California
Before: GOULD and HURWITZ, Circuit Judges and RESTANI,** Judge.
Carlos Armando Escobar was convicted after a jury trial of illegal presence in
the United States in violation of 8 U.S.C. § 1326. He challenges the imposition of
a 16-level enhancement under United States Sentencing Guideline (“U.S.S.G.”)
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
§ 2L1.2 based on a conviction for possession of a controlled substance for sale in
violation of California Health & Safety Code § 11378. He also challenges the
district court’s imposition after a prior remand of an additional year of supervised
release to his original sentence. We affirm in part, vacate in part, and remand with
instructions.
1. In his prior appeal, Escobar argued that § 11378 is overbroad and
indivisible both as to drug type and intent, and therefore the modified categorical
approach cannot be employed to determine whether his prior conviction supports the
§ 2L1.2 enhancement. We concluded that “California Health & Safety Code
§ 11378 is divisible within the meaning of Descamps v. United States, 133 S. Ct.
2276 (2013), and therefore subject to the modified categorical approach.” United
States v. Escobar, 594 F. App’x 920, 922 (9th Cir. 2014) (alterations omitted). But,
we held that the district court “erred by relying solely on the description of Escobar’s
prior conviction listed in the presentence report,” and remanded “to provide the
Government with the opportunity to submit acceptable evidence of the factual basis
of the prior conviction.” Id. On remand, the district court concluded that the
documents of conviction unambiguously established that Escobar was convicted of
possession for sale of methamphetamine.
2. In this second appeal, Escobar again argues that § 11378 is indivisible
as to both drug type and intent, and that his conviction under that California statute
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therefore cannot serve as the basis for the § 2L1.2 enhancement. Having rejected
this argument in Escobar’s prior appeal, see Escobar, 594 F. App’x at 922, we
decline the invitation to revisit that ruling. See also United States v. Vega-Ortiz, -
-- F.3d ---, 2016 WL 2610177, at *4 (9th Cir. 2016).
3. We apply the modified categorical analysis to determine whether
Escobar’s prior conviction qualifies as a “drug trafficking offense” under U.S.S.G.
§ 2L1.2. “[T]he term ‘controlled substance,’ as used in the ‘drug trafficking
offense’ definition in U.S.S.G. § 2L1.2, means those substances listed in” the
Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801-904. United States v. Leal-
Vega, 680 F.3d 1160, 1167 (9th Cir. 2012). “Our inquiry is limited to ‘the charging
document, the terms of a plea agreement or transcript of colloquy between judge and
defendant in which the factual basis for the plea was confirmed by the defendant, or
to some comparable judicial record of this information.’” Id. at 1168 (quoting
Shepard v. United States, 544 U.S. 13, 26 (2005)). Count 2 of the California felony
complaint charged Escobar with possession for sale of methamphetamine. The
abstract of judgment and plea form confirm that Escobar was convicted on Count 2.
Methamphetamine is a “controlled substance” under the CSA. 21 U.S.C.
§§ 802(6), 812. The district therefore properly imposed the 16-level enhancement.
See Leal-Vega, 680 F.3d at 1168-69. The fact that Escobar entered a plea under
People v. West, 477 P.2d 409 (Cal. 1970), is immaterial, because “when read in
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conjunction with the Complaint,” it is “clear the controlled substance at issue was
methamphetamine.” United States v. Valdavinos-Torres, 704 F.3d 679, 684 (9th
Cir. 2012); see also Cabantac v. Holder, 736 F.3d 787, 794 (9th Cir. 2012) (per
curiam) (rejecting an identical argument).
4. Escobar argues that, even if he was convicted of possession for sale of
methamphetamine, the Shepard documents do not establish that he knew the drug
he possessed was methamphetamine, as opposed to some hypothetical drug banned
in California but not by the CSA, and his California conviction therefore does not
establish that his conduct violated federal law. However, Escobar failed to present
this argument to the district court after our previous remand, which directed the court
to analyze the Shepard documents to determine “the factual basis of the prior
conviction.” Escobar, 594 F. App’x at 922. Therefore, the argument is forfeited.
See Hillis v. Heineman, 626 F.3d 1014, 1019 (9th Cir. 2010).
5. The district court imposed an additional year of supervised release on
resentencing. The court did not discuss the basis for this change, which appears to
have been inadvertent. Thus, although we affirm Escobar’s sentence in all other
respects, we vacate the portion of the sentence providing for three years of post-
incarceration supervised release and remand to the district court with instructions to
impose the original two-year term.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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