Francisco Duran Isordia v. William Barr

FILED
NOT FOR PUBLICATION
OCT 13 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO JAVIER DURAN No. 17-71064
ISORDIA, AKA “Creeper” Moniker,
AKA Francisco Duran, AKA Francisco Agency No. A077-306-235
Javier Duran-Isordia, AKA Francisco
Javier Isordia,
MEMORANDUM*
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 7, 2020**
Pasadena, California
Before: KLEINFELD, HURWITZ, and BRESS, Circuit Judges.
Duran Isordia argues the Board erred in finding he committed a removable
offense because the statute of conviction, California Health and Safety Code
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 11379(a), is overbroad under Mathis v. United States, 136 S. Ct. 2243 (2016).
This is incorrect. This Court held in United States v. Barragan that Section 11379
is a divisible statute as to the controlled substance involved in the offense. 871
F.3d 689, 715 (9th Cir. 2017).
To determine which element of Section 11379 Duran Isordia was convicted
of, we may under the modified categorical approach, as described in United States
v. Torre-Jimenez, 771 F.3d 1163, 1167 (9th Cir. 2014), consider the complaint,
abstract of judgment, and docket sheet that were submitted in this case. They
established that the offense was selling, transporting, or offering to sell
methamphetamine, which is within the coverage of the Federal Controlled
Substance Act, as we held in United States v. Rodriguez-Gamboa, __ F.3d __ (9th
Cir. 2020). Duran Isordia’s argument about solicitation was not raised before the
Board and is in any event foreclosed by Mielewczyk v. Holder, 575 F.3d 992,
996–98, 996 n.1 (9th Cir. 2009).
The words “as charged” are not necessary to establish the crime to which
Duran Isordia pleaded “when the record is clear,” Torre-Jimenez, 771 F.3d at
1168–69, as it is in this case.
The petition for review is DENIED.
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