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United States v. De La Torre-Jimenez

United States Court of Appeals, Ninth Circuit

November 7, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MIGUEL DE LA TORRE-JIMENEZ, aka Miguel de la Torre, aka Miguel Delatorre, aka Miguel Angel Jimenez, Defendant-Appellant

Argued and Submitted October 8, 2014, Pasadena, California

Page 1164

Appeal from the United States District Court for the Central District of California. D.C. No. 2:12-cr-00828-GHK-1. George H. King, Chief District Judge, Presiding.

SUMMARY[**]

Criminal Law

The panel affirmed a sentence for being a deported alien found in the United States after removal, in violation of 8 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, 186 L.Ed.2d 438 (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, and the abstract of judgment stated that the defendant pleaded guilty to Count 1.

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.

Before: David M. Ebel,[*] Andrew J. Kleinfeld, and Susan P. Graber, Circuit Judges.

OPINION

Page 1165

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, 186 L.Ed.2d 438 (2013), and (2) even if that approach is permissible, the documents presented by the government did not demonstrate that his prior conviction was for a " drug trafficking offense." ...


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