United States v. Manuel Morfin-Diaz

FILED
NOT FOR PUBLICATION MAR 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30042
Plaintiff-Appellee, D.C. No. 2:12-cr-06031-RMP-1
v.
MEMORANDUM*
MANUEL MORFIN-DIAZ,
Defendant-Appellant.
Appeal from the United States District Court for the
Eastern District of Washington
Rosanna Malouf Peterson, Chief District Judge, Presiding
Argued and Submitted February 7, 2014
Seattle, Washington
Before: GOULD and CHRISTEN Circuit Judges, and KOBAYASHI, District
Judge.**
Defendant-appellant Manuel Morfin-Diaz (“Defendant”) appeals his
conviction and sentence for illegal reentry into the United States after being
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
previously deported, in violation of 8 U.S.C. § 1326. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
First, Defendant challenges the district court’s denial of his motion to
dismiss the indictment. Defendant argues that his 1996 conviction was for the
transportation of amphetamine in violation of California Health & Safety Code
§ 11379 (“Section 11379”), which is not an aggravated felony. Defendant
therefore contends that his due process rights were violated because his 1996
conviction does not support the underlying administrative removal order
(“Removal Order”). “This Court reviews de novo the district court’s denial of a
motion to dismiss an indictment under 8 U.S.C. § 1326 when the motion is based
on an alleged deprivation of due process in the underlying removal proceedings.”
United States v. Valdavinos-Torres, 704 F.3d 679, 685 (9th Cir. 2012) (citations
and internal quotation marks omitted).
An element of the crime of illegal reentry under § 1326 is that the defendant
must have previously been “denied admission, excluded, deported, or removed
or . . . departed the United States while an order of exclusion, deportation, or
removal is outstanding.” 8 U.S.C. § 1326(a)(1). In order to be successful in a
collateral attack on an underlying removal order, a defendant must demonstrate
that, inter alia, “the entry of the order was fundamentally unfair.” 8 U.S.C.
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§ 1326(d)(3). “An underlying removal order is ‘fundamentally unfair’ if a
defendant’s due process rights were violated by defects in his deportation process,
and he suffered prejudice as a result.” Valdavinos-Torres, 704 F.3d at 686
(citations omitted).
Pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), “[a]ny alien who is convicted of
an aggravated felony at any time after admission is deportable.” The term
“aggravated felony” includes “illicit trafficking in a controlled substance . . . ,
including a drug trafficking crime.” 8 U.S.C. § 1101(a)(43)(B). In determining
whether a defendant’s offense qualifies as an aggravated felony, this court utilizes
the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 601-02
(1990). Valdavinos-Torres, 704 F.3d at 686. This court has found that Section
11379 is overinclusive compared to its federal counterparts, and therefore a Section
11379 conviction does not qualify as an aggravated felony under the categorical
approach. Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1128 (9th Cir. 2007),
overruled on other grounds by Young v. Holder, 697 F.3d 976 (9th Cir. 2012).
When a criminal offense does not satisfy the categorical approach under
Taylor, the court must then analyze the offense using the “modified categorical
approach.” Valdavinos-Torres, 704 F.3d at 687 (citation and quotation marks
omitted). “When applying the modified categorical approach in the context of a
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guilty plea, [the court] must ‘determine whether a guilty plea to an offense defined
by a nongeneric statute necessarily admitted elements of the generic offense.’”
Young, 697 F.3d at 983 (emphasis in Young) (quoting United States v. Aguila-
Montes de Oca, 655 F.3d 915, 921 (9th Cir. 2011) (en banc)). In making such a
determination, this court reviews the record of conviction, which is limited to “the
charging instrument, transcript of the plea colloquy, plea agreement, and
comparable judicial record of this information.” Id. (citing Shepard v. United
States, 544 U.S. 13, 26 (2005)). Furthermore, the government bears the burden to
demonstrate clearly and unequivocally that the defendant’s prior conviction was a
qualifying predicate offense. United States v. Strickland, 601 F.3d 963, 969 (9th
Cir. 2010) (quoting United States v. Gomez-Leon, 545 F.3d 777, 785 (9th Cir.
2008)) (citing United States v. Kelly, 422 F.3d 889, 895 (9th Cir. 2005)).
In the instant case, Defendant’s record of conviction consists of the
following documents related to his 1996 conviction: (1) the Complaint; (2) the
Plea Agreement; (3) the Minute Order; (4) the Sentencing Hearing Record; and
(5) the Abstract of Judgment. The Complaint charged Defendant with two counts,
both for violations of Section 11379: (1) transportation of amphetamine
(“Count I”); and (2) sale of amphetamine (“Count II”). Defendant’s signed Plea
Agreement states, in pertinent part, “I freely and voluntarily enter my plea of guilty
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to the charge(s) of sale of amphetamine . . . . The following plea bargain is part of
this plea: Ct. I dismissed.” In reading the Plea Agreement, in conjunction with the
Complaint, it is clear that the factual basis of Defendant’s 1996 conviction was his
sale of amphetamine, i.e., Count II of the Complaint. Thus, the Plea Agreement,
which also constitutes the convicting court’s findings and order in the matter,
establishes that Defendant was convicted of Count II, and Count I was dismissed.
The Minute Order supports this conclusion. The Abstract of Judgment’s unclear
reference to “Count 1” is insufficient to render ambiguous the Plea Agreement’s
unequivocal showing that the factual basis of Defendant’s conviction was his sale
of amphetamine. Although the Sentencing Hearing Record states that Defendant
was convicted of the “Transportation of a Controlled Substance,” the sentence
imposed by the convicting court would have ultimately been pursuant to the Plea
Agreement, under which Defendant was convicted of Count II.
There are two ways in which a state drug offense can qualify as an
aggravated felony under 8 U.S.C. § 1101(a)(43)(B): (1) if the state offense contains
a trafficking element; or (2) if the state offense would be punishable as a felony
under federal drug laws. Daas v. Holder, 620 F.3d 1050, 1054 (9th Cir. 2010)
(citations omitted). “The Supreme Court has stated that ‘ordinarily “trafficking”
means some sort of commercial dealing.’” Rendon, 520 F.3d at 975 (quoting
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Lopez v. Gonzalez, 549 U.S. 47, 53 (2006)); see also Carachuri-Rosendo v.
Holder, 560 U.S. 563, 574 (2010) (using Lopez’s definition of “trafficking”).
Defendant’s guilty plea to violating Section 11379 for the sale of amphetamine
necessarily admitted his engagement in some sort of commercial dealing. Thus,
Defendant’s 1996 conviction contains a trafficking element, and qualifies as an
aggravated felony under the modified categorical approach.
In light of the record of conviction, the Government has met its burden of
establishing clearly and unequivocally that Defendant’s 1996 conviction
necessarily rested on elements qualifying as an aggravated felony. Thus, the
district court did not err in finding that Defendant’s conviction under Section
11379 qualified as an aggravated felony under the modified categorical approach.
Based on the foregoing, Defendant was administratively removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii), and ineligible for voluntary departure. See 8 U.S.C.
§ 1229c(a)(1). Defendant has therefore failed to establish that the Removal Order
was fundamentally unfair.
Second, Defendant argues that the district court erred in applying a sixteen-
level enhancement under United States Sentencing Guidelines (“Sentencing
Guidelines” or “U.S.S.G.”) because his 1996 conviction is not a drug trafficking
offense. The Sentencing Guidelines permit a sixteen-level enhancement if the
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defendant was previously deported after being convicted for “a drug trafficking
offense for which the sentence imposed exceeded 13 months.” U.S.S.G.
§ 2L1.2(b)(1)(A)(i).
In determining whether a prior conviction qualifies as a “drug trafficking
offense” under the Sentencing Guidelines, this court again utilizes the categorical
approach. See, e.g., Valdavinos-Torres, 704 F.3d at 691. Section 11379 does not
qualify as a drug trafficking offense for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(i)
under the categorical approach. United States v. Navidad-Marcos, 367 F.3d 903,
907-08 (9th Cir. 2004). Under the modified categorical approach, however, a
Section 11379 conviction for the sale of amphetamine does qualify as a drug
trafficking offense. See United States v. Corona-Rivera, 503 Fed. Appx. 500, 502
(9th Cir. 2012) (holding that the defendant’s conviction for the sale of marijuana,
in violation of California Health & Safety Code § 11360(a), was a drug trafficking
offense within the meaning of U.S.S.G. § 2L1.2), cert. denied, 133 S. Ct. 2040(2013). As the record of conviction establishes that Defendant’s 1996 conviction
was for the sale of amphetamine, the district court did not err in applying the
sixteen-level enhancement to his sentence.
Finally, Defendant argues that the district court abused its discretion by
imposing a sentence of thirty-six months, with the sole basis of his argument being
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that the district court erred in applying the sixteen-level enhancement. Defendant’s
argument fails, as we conclude that the district court did not err in applying the
enhancement. Furthermore, Defendant’s sentence of thirty-six months is below the
sentencing range that the district court had initially calculated, and thus is
reasonable. See United States v. Almazan-Becerra, 537 F.3d 1094, 1100 (9th Cir.
2008).
Accordingly, we AFFIRM the district court’s denial of Defendant’s motion
to dismiss the indictment and Defendant’s sentence.
AFFIRMED.
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