United States v. Miguel De La Torre-Jimenez ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50438
Plaintiff-Appellee,
D.C. No.
v. 2:12-cr-00828-
GHK-1
MIGUEL DE LA TORRE-JIMENEZ, aka
Miguel de la Torre, aka Miguel
Delatorre, aka Miguel Angel OPINION
Jimenez,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
George H. King, Chief District Judge, Presiding
Argued and Submitted
October 8, 2014—Pasadena, California
Filed November 7, 2014
Before: David M. Ebel,* Andrew J. Kleinfeld,
and Susan P. Graber, Circuit Judges.
Opinion by Judge Graber
*
The Honorable David M. Ebel, Senior Circuit Judge for the United
States Court of Appeals for the Tenth Circuit, sitting by designation.
2 UNITED STATES V. DE LA TORRE-JIMENEZ
SUMMARY**
Criminal Law
The panel affirmed a sentence for being a deported alien
found in the United States after removal, in violation of 18
U.S.C. § 1326, in a case in which the district court, applying
the modified categorical approach, concluded that the
defendant’s prior conviction for possession of cocaine for
sale, in violation of California Health and Safety Code section
11351, was for a “drug trafficking offense” under U.S.S.G.
§ 2L1.2(b)(1)(A).
Applying Coronado v. Holder, 759 F.3d 977 (9th Cir.
2014) (holding that California Health and Safety Code section
11377(a) is divisible), the panel held that section 11351 is
divisible within the meaning of Descamps v. United States,
133 S. Ct. 2276 (2013), with respect to the type of controlled
substance, such that the modified categorical approach may
be applied. The panel also held that there is no irreconcilable
conflict, in result or methodology, between Coronado and
Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014), which
considered the divisibility of a burglary statute with respect
to an intent element.
The panel held that the district court properly concluded
under the modified categorical approach that the defendant
had been convicted of a “drug trafficking offense” under
§ 2L1.2(b)(1)(A), where the criminal complaint specified in
Count 1 that the defendant possessed or purchased cocaine,
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. DE LA TORRE-JIMENEZ 3
and the abstract of judgment stated that the defendant pleaded
guilty to Count 1.
COUNSEL
James H. Locklin (argued), Deputy Federal Public Defender,
and Sean K. Kennedy, Federal Public Defender, Los Angeles,
California, for Defendant-Appellant.
L. Ashley Aull (argued) and Robert E. Dugdale, Chief,
Criminal Division, Assistant United States Attorneys, and
André Birotte, Jr., United States Attorney, Los Angeles,
California, for Plaintiff-Appellee.
OPINION
GRABER, Circuit Judge:
Defendant Miguel de la Torre-Jimenez appeals his 18-
month sentence following a guilty plea to one count of being
a deported alien found in the United States after removal, in
violation of 8 U.S.C. § 1326. Applying the modified
categorical approach, the district court concluded that
Defendant’s prior conviction for possession of cocaine for
sale, in violation of California Health and Safety Code section
11351, was for a “drug trafficking offense” under U.S.S.G.
§ 2L1.2(b)(1)(A). Defendant objected, arguing that (1) the
court could not use the modified categorical approach
because section 11351 is not “divisible” within the meaning
of Descamps v. United States, 133 S. Ct. 2276 (2013), and
(2) even if that approach is permissible, the documents
presented by the government did not demonstrate that his
4 UNITED STATES V. DE LA TORRE-JIMENEZ
prior conviction was for a “drug trafficking offense.”
Reviewing de novo, United States v. Gomez-Leon, 545 F.3d
777, 782 (9th Cir. 2008), we reject both arguments. Because
the district court correctly applied the 16-level sentencing
enhancement, we affirm.
DISCUSSION
Sentencing Guideline § 2L1.2(b)(1)(A) directs the
sentencing court to increase the offense level by 16 if the
defendant was removed after “a conviction for a felony that
is (I) a drug trafficking offense for which the sentence
imposed exceeded 13 months.” Here, there is no dispute that
Defendant was removed after he was convicted of a felony
for which the sentence imposed exceeded 13 months. The
only question is whether the prior conviction qualifies as a
“drug trafficking offense.” “We apply the categorical and
modified categorical approaches described in Taylor v.
United States, 495 U.S. 575 (1990), to determine whether
a defendant’s prior conviction satisfies U.S.S.G.
§ 2L1.2(b)(1)(A).” United States v. Leal-Vega, 680 F.3d
1160, 1163 (9th Cir. 2012).
In applying the categorical approach, we must “compare
the statutory definition of the underlying offense to the
Guidelines definition of a ‘drug trafficking offense.’”
Gomez-Leon, 545 F.3d at 783. California Health and Safety
Code “[s]ection 11351 is categorically broader than the
Guidelines definition of ‘drug trafficking offense’ because it
criminalizes possession or purchase of certain substances that
are not covered by the CSA [Federal Controlled Substances
Act].” Leal-Vega, 680 F.3d at 1167.
UNITED STATES V. DE LA TORRE-JIMENEZ 5
The next step is to apply the modified categorical
approach in order to determine whether Defendant’s
conviction involved a controlled substance covered by the
CSA. Id. at 1167–68. Applying the modified categorical
approach, the district court ruled that Defendant’s conviction
involved cocaine. Because cocaine is a controlled substance
under the CSA, 21 U.S.C. § 812(c) sched. II(a)(4), the district
court concluded that Defendant was convicted of a “drug
trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A).
Defendant argues that the district court erred by applying
the modified categorical approach, because the California
statute is not “divisible” within the meaning of Descamps. In
the alternative, he asserts that, even if the modified
categorical approach applies, the records submitted by the
government are insufficient to demonstrate that his conviction
was for possession of cocaine. We address those arguments
in turn.
A. Divisibility of California Health and Safety Code
Section 11351
In Descamps, 133 S. Ct. at 2281, the Supreme Court held
that the modified categorical approach may be used for a
“‘divisible statute’”—one that “sets out one or more elements
of the offense in the alternative.” But the modified
categorical approach does not apply to “an ‘indivisible
statute’—i.e., one not containing alternative elements.” Id.
Defendant argues that California Health and Safety Code
section 11351 is not divisible.
6 UNITED STATES V. DE LA TORRE-JIMENEZ
We do not write on a clean slate. In Coronado v. Holder,
759 F.3d 977, 983–85 (9th Cir. 2014), we considered a
similar California drug law, California Health and Safety
Code section 11377(a). That statute provides that “every
person who possesses any controlled substance [in various
statutory lists]” has committed a crime. Cal. Health & Safety
Code § 11377(a). We held that, because the statute contains
a “listing of alternative controlled substances,” the statute was
divisible within the meaning of Descamps. Coronado,
759 F.3d at 985. In reaching that conclusion, we looked to
California law in rejecting the petitioner’s argument that “‘the
precise controlled substance possessed is not an essential
element’ of § 11377(a).” Id. at 985 n.4. Accordingly, we
applied the modified categorical approach. Id. at 985–86.
On the question of divisibility with respect to the type of
controlled substance, there is no meaningful distinction
between sections 11377(a) and 11351 of the California Health
and Safety Code. Identically to section 11377(a), section
11351 contains a “listing of alternative controlled
substances.” Coronado, 759 F.3d at 985; see also Ragasa v.
Holder, 752 F.3d 1173, 1176 (9th Cir. 2014) (holding that a
Hawaii drug law was divisible because the statute lists
various controlled substances). Looking to California law,
we find no meaningful distinction between the two sections
on the question whether the controlled substance is an
essential element.
The two sections criminalize different drug-related
behavior (simple possession versus possession for sale or
purchase for purposes of sale) and cover different statutory
UNITED STATES V. DE LA TORRE-JIMENEZ 7
lists of controlled substances.1 But Defendant has
offered—and we have discovered—no reason, under
California law or otherwise, why those facts or any other
difference between the statutes is relevant to the question of
divisibility concerning the type of controlled substance. In
sum, Coronado controls. We are bound to conclude that, like
section 11377(a), section 11351 of the California Health and
Safety Code is divisible within the meaning of Descamps.
Defendant directs us to examine our recent decision in
Rendon v. Holder, 764 F.3d 1077, 1081 (9th Cir. 2014), in
which we held that the California burglary statute is not
divisible with respect to an intent element. Were we to look
to California law in the way Rendon instructs, he contends,
1
California Health and Safety Code section 11377(a) covers any
substance
(1) classified in Schedule III, IV, or V, and which is not
a narcotic drug, (2) specified in subdivision (d) of
Section 11054, except paragraphs (13), (14), (15), and
(20) of subdivision (d), (3) specified in paragraph
(11) of subdivision (c) of Section 11056, (4) specified
in paragraph (2) or (3) of subdivision (f) of Section
11054, or (5) specified in subdivision (d), (e), or (f) of
Section 11055 . . . .
Section 11351 covers
(1) any controlled substance specified in subdivision
(b), (c), or (e) of Section 11054, specified in paragraph
(14), (15), or (20) of subdivision (d) of Section 11054,
or specified in subdivision (b) or (c) of Section 11055,
or specified in subdivision (h) of Section 11056, or
(2) any controlled substance classified in Schedule III,
IV, or V which is a narcotic drug . . . .
8 UNITED STATES V. DE LA TORRE-JIMENEZ
we would conclude that California drug crimes are not
divisible. We are unpersuaded.
As a three-judge panel, we are bound by Coronado.
Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en
banc). We cannot disregard binding precedent, as Defendant
asks us to do. Because Coronado controls, we must follow it.
Moreover, if we thought that two controlling cases were
in irreconcilable conflict, we could not simply pick one to
follow—we would be required to call this case en banc. See
Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478–79
(9th Cir. 1987) (en banc) (holding that “the appropriate
mechanism for resolving an irreconcilable conflict is an en
banc decision. A panel faced with such a conflict must call
for en banc review”). But no irreconcilable conflict exists.
There certainly is no conflict in result: Coronado (like
our case) pertains to the divisibility of a drug statute with
respect to a list of controlled substances, whereas Rendon
considered the divisibility of a burglary statute with respect
to an intent element. Defendant recognizes that distinction,
arguing instead that the method of analysis described in
Rendon is inconsistent with the method used in Coronado.
But, in Rendon, we expressly considered Coronado’s method
of determining divisibility and held that, because Coronado
looked to California law, its approach was “consistent with
our approach” in Rendon, 764 F.3d at 1087 n.11 (emphasis
added). Accordingly, there appears to be no conflict in
methodology, either.
Indeed, we recently applied the Rendon methodology to
yet another California drug-related statute, California Health
and Safety Code section 11378. Padilla-Martinez v. Holder,
UNITED STATES V. DE LA TORRE-JIMENEZ 9
No. 11-72570, 2014 WL 5421219 (9th Cir. Oct. 27, 2014).
As in Coronado, we held that the statute is divisible. Id. at *4
n.3. And as in Coronado, the statute is divisible because it is
drafted in the disjunctive (listing several controlled
substances), and “California state law treats the type of
controlled substance as a separate element” with respect to
drug offenses. Id.
Viewed properly, then, the essence of Defendant’s
argument is simply that Coronado applied the methodology
incorrectly or incorrectly assessed the content of California
law. In other words, Defendant argues that Coronado was
wrongly decided. As noted above, we cannot overrule
Coronado. Miller, 335 F.3d at 899–900.
In conclusion, Coronado examined California law and
held that a California drug law that covers a list of controlled
substances is divisible. The California drug law at issue here
also covers a list of controlled substances, and no meaningful
distinction exists between the two statutes. Because there is
no irreconcilable conflict between Coronado and any other
case, we must follow Coronado. Accordingly, California
Health and Safety Code section 11351 is divisible with
respect to the type of controlled substance. We turn, then, to
the modified categorical approach.
B. Modified Categorical Approach
“The modified categorical approach allows us to look
beyond the statute of conviction to determine whether the
facts proven at trial or admitted by the defendant as part of
his guilty plea establish that the defendant was convicted of
all the elements of the relevant federal generic offense.”
Sanchez-Avalos v. Holder, 693 F.3d 1011, 1014–15 (9th Cir.
10 UNITED STATES V. DE LA TORRE-JIMENEZ
2012). Here, the government presented three documents: a
criminal complaint, an abstract of judgment, and a docket
sheet. Those sources are appropriate for our review under the
modified categorical approach. See Shepard v. United States,
544 U.S. 13, 26 (2005) (charging document); Ramirez-
Villalpando v. Holder, 645 F.3d 1035, 1040 (9th Cir. 2011)
(abstract of judgment); Coronado, 759 F.3d at 986 (docket
sheet).
The criminal complaint alleges in “COUNT 1” that
Defendant “did unlawfully possess for sale and purchase for
sale a controlled substance, to wit, cocaine” in violation of
“HEALTH & SAFETY CODE SECTION 11351.” The
abstract of judgment states that “Defendant was convicted of
the commission of the following felony,” followed by a chart
listing Count “1,” Code “HS,” section “11351,” crime “POSS
NARCOTIC CONTROLLED SUBST FOR SALE” by
“plea.” The criminal docket sheet states that Defendant
pleaded guilty to “Count 01.”
The criminal complaint specifies in Count 1 that
Defendant possessed or purchased cocaine, and the abstract
of judgment states that Defendant pleaded guilty to Count 1.
“Where the minute order or other equally reliable document
specifies that a defendant pleaded guilty to a particular count
of a criminal complaint, the court may consider the facts
alleged in the complaint.” Coronado, 759 F.3d at 986;
accord Cabantac v. Holder, 736 F.3d 787, 793–94 (9th Cir.
2013) (per curiam) (“[W]here, as here, the abstract of
judgment or minute order specifies that a defendant pleaded
guilty to a particular count of the criminal complaint or
indictment, we can consider the facts alleged in that count.”);
see also United States v. Valdavinos-Torres, 704 F.3d 679,
687–88 (9th Cir. 2012) (looking to the facts alleged in the
UNITED STATES V. DE LA TORRE-JIMENEZ 11
charging document where the change of plea form stated that
the defendant pleaded guilty to a specific count), cert. denied,
134 S. Ct. 1873 (2014); Leal-Vega, 680 F.3d at 1168 (same,
where the minute order, abstract of judgment, and plea form
stated that the defendant pleaded guilty to a specific count);
United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir.
2008) (per curiam) (en banc) (same, where the minute order
stated that the defendant pleaded guilty to a specific count).
Accordingly, the record clearly shows that Defendant’s
conviction under California Health and Safety Code section
11351 related to the specific controlled substance of cocaine.
Defendant does not challenge that reasoning. Instead, he
quotes one sentence from our decision in United States v.
Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en banc), and
argues that the five cases cited above are irreconcilable with
Vidal. Defendant is mistaken.
In Vidal, we held: “In order to identify a conviction as
the generic offense through the modified categorical
approach, when the record of conviction comprises only the
indictment and the judgment, the judgment must contain the
critical phrase ‘as charged in the Information.’” Id. (some
internal quotation marks omitted). Taken in isolation, that
sentence appears to conflict with our later cases, which have
not required the “critical phrase” noted in Vidal. But we
repeatedly have explained why that one sentence in Vidal
must not be viewed in isolation.
In Valdavinos-Torres, 704 F.3d at 688, we held that,
because the documents in Vidal raised doubt about the actual
crime to which the defendant had pleaded guilty, requiring
the “critical phrase” made sense. But where, as in
Valdavinos-Torres, nothing raises doubt about the crime, the
12 UNITED STATES V. DE LA TORRE-JIMENEZ
“critical phrase” is not required. Id. We recognized this
same distinction also in Leal-Vega, 680 F.3d at 1168: “No
evidence in the record suggests that any modifications were
made to the felony complaint in terms of the substance
involved. Thus, no ambiguity exists and no further clarifying
language was necessary.”2 Most recently, in Medina-Lara v.
Holder, No. 13-70491, 2014 WL 5072684, at *4 (9th Cir.
Oct. 10, 2014), we reiterated that the “critical phrase” is not
required when the record is clear. Because the documents
were ambiguous in that case—for example, “[t]he abstract
states Medina pleaded to count ‘3A,’ not count ‘3’ as it is
denominated in the complaint”—we held that the record was
insufficient. Id. at *5.
Where, as here, the abstract of judgment unambiguously
specifies that Defendant pleaded guilty to a specific count, we
look to the facts alleged in that count in the charging
document. We recognize that some think that a different rule
should apply. Cabantac, 736 F.3d at 789 (order) (Murguia,
J., dissenting from the denial of rehearing en banc). Unless
and until our cases are overruled by an intervening Supreme
Court or en banc decision, though, we are bound by that rule.
Miller, 335 F.3d at 899–900. Litigants may, of course,
preserve the argument for en banc or Supreme Court review.
Or litigants may argue that an ambiguity exists in the
particular documents at hand. But our precedent squarely
forecloses the argument that one isolated sentence in Vidal
controls; the phrase “as charged in the Information (or
2
The fact that the two situations are different may explain why, in
Snellenberger, we did not see the need to mention Vidal. Nonetheless, to
the extent that they conflict, the later en banc decision controls. Saffon v.
Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 872 n.2 (9th
Cir. 2008).
UNITED STATES V. DE LA TORRE-JIMENEZ 13
Indictment)” is not required where the documents are
unambiguous.
CONCLUSION
California Health and Safety Code section 11351 is
“divisible” within the meaning of Descamps, 133 S. Ct. 2276.
Because the criminal complaint specified that Count 1
involved cocaine and the abstract of judgment specified that
Defendant pleaded to Count 1, the district court correctly
concluded that Defendant had been convicted of a “drug
trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A).
AFFIRMED.