United States v. German Delgado-Moreno

FILED
NOT FOR PUBLICATION NOV 09 2012
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. 11-50550
Plaintiff-Appellee, D.C. No. 3:11-CR-1973-DMS
v. MEMORANDUM *
GERMAN DELGADO-MORENO,
Defendant-Appellant.
On Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
**
Submitted November 6, 2012
Pasadena, California
Before: GOODWIN and O’SCANNLAIN, Circuit Judges, and ZOUHARY, District
Judge.***
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Jack Zouhary, District Judge for the U.S. District Court
for Northern Ohio, sitting by designation.
Defendant-Appellant German Delgado-Moreno (“Delgado-Moreno”), a native
and citizen of Mexico, pled guilty to attempted re-entry after deportation, in violation
of 8 U.S.C. § 1326(a) and (b). After imposing a 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A), the sentencing judge calculated Delgado-Moreno’s total offense
level to be 21 with a criminal history category III, resulting in a recommended
Sentencing Guidelines range of 46 to 57 months of imprisonment. Delgado-Moreno
argues the enhancement was improper and challenges his below-Guidelines sentence
of 37 months incarceration followed by 2 years supervised release.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), review
the district court’s imposition of a sentencing enhancement de novo, United States v.
Valle-Montalbo, 474 F.3d 1197, 1199 (9th Cir. 2007), and now affirm.
1. A violation under Section 1326 carries a base offense level of 8 under
U.S.S.G. § 2L1.2. See United States v. Leal-Vega, 680 F.3d 1160, 1163 (9th Cir.
2012). Under Section 2L1.2(b)(1)(A), this base level may be increased by 16 levels
if Delgado-Moreno has a prior conviction for a “drug trafficking offense,” and the
sentence on that prior conviction exceeded 13 months. Application note 1(B)(iv) to
Section 2L1.2 defines a “drug trafficking offense” as:
[A]n offense under federal, state, or local law that prohibits the
manufacture, import, export, distribution, or dispensing of, or offer to
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sell a controlled substance . . . or the possession of a controlled
substance.
The prior convictions in this case are Delgado-Moreno’s 1997 convictions for
violations of Sections 11378 and 11379(a) of the Cal. Health & Safety Code. Both
convictions were based on the same conduct: transportation and possession of
methamphetamine for purposes of sale. We apply the categorical and modified
approaches set forth in Taylor v. United States, 495 U.S. 575 (1990), to determine
whether a prior conviction satisfies Section 2L1.2(b)(1)(A). Leal-Vega, 680 F.3d at
1163. However, because only one conviction is necessary for the enhancement, there
is no need to engage in a Taylor analysis for Delgado-Moreno’s Section 11378
conviction. Nor is there a need to apply the categorical analysis to the Section
11379(a) conviction, as the district court properly held that Delgado-Moreno’s
11379(a) conviction satisfied Section 2L1.2(b)(1)(A) under the modified approach.
Under the modified approach, we may not look beyond the record of conviction
to the particular facts underlying the conviction; however, we may look 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.” Leal-Vega, 680
F.3d at 1168 (citing Shepard v. United States, 544 U.S. 13 (2005)). Here, Delgado-
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Moreno’s 1997 plea agreement unequivocally shows he was convicted of transporting
and possessing methamphetamine for the purposes of sale. Specifically:
On April 10, 1997, in Orange County, I [Delgado-Moreno] . . .
transported & possesses [sic] for purposes of sale . . . methamphetamine
a controlled substance.
Because the record of conviction indicates Delgado-Moreno was convicted of
transporting and possessing methamphetamine for sale, and because
methamphetamine is listed on the federal drug schedules, see 21 U.S.C. §§ 802(6),
812 (Schedule III(a)(3)), his prior conviction qualifies as a “drug trafficking offense”
under Section 2L1.2.
2. Delgado-Moreno raises a second issue solely “to preserve Supreme Court
review.” According to Delgado-Moreno, the district court erred by applying 8 U.S.C.
§ 1326(b) to enhance his sentence. Specifically, he argues that Almendarez-Torres v.
United States, 523 U.S. 224 (1998), which permits enhancement based on the
existence of a prior felony, has been “effectively overruled,” so that his prior felony
conviction must be either admitted or proved to a jury beyond a reasonable doubt. We
have repeatedly held, however, that Almendarez-Torres continues to be “binding
authority” unless it is expressly overruled by the Supreme Court. See, e.g., United
States v. Valdovinos-Mendez, 641 F.3d 1031, 1036 (9th Cir. 2011); United States v.
Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (per curiam); United States v.
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Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009). Because Almendarez-Torres has not
been expressly overruled, we reject Delgado-Moreno’s contention to the contrary.
AFFIRMED.
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