545 F.3d 777 (9th Cir. 2008), 05-50138, United States v. Gomez-Leon

Docket Nº:05-50138.
Citation:545 F.3d 777
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Javier GOMEZ-LEON, Defendant-Appellant.
Case Date:September 24, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 777

545 F.3d 777 (9th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,


Javier GOMEZ-LEON, Defendant-Appellant.

No. 05-50138.

United States Court of Appeals, Ninth Circuit.

September 24, 2008

Argued and Submitted March 4, 2008.

Page 778

[Copyrighted Material Omitted]

Page 779

[Copyrighted Material Omitted]

Page 780

[Copyrighted Material Omitted]

Page 781

Lynn H. Ball, Law Office of Lynn H. Ball, San Diego, CA, for the defendant-appellant.

Timothy F. Salel, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; William Q. Hayes, District Judge, Presiding. D.C. No. CR-04-02230-WQH.


Opinion by Judge GIBSON; Partial Concurrence and Partial Dissent by Judge O'SCANNLAIN.

GIBSON, Circuit Judge:

Javier Gomez-Leon was found guilty by the district court of attempted entry into the United States after deportation, 8 U.S.C. § 1326, following a non-jury trial. The district court sentenced Gomez to 84 months' imprisonment based on an advisory Guidelines range of 84-105 months. The district court arrived at that advisory range by beginning with a base offense level of eight, applying a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) (prescribing an increase in sentencing range if the defendant was previously convicted a “ crime of violence" or a “ drug trafficking offense for which the sentence imposed exceeded 13 months" ), and granting a two-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1. Gomez's total offense level was, therefore, twenty-two. On appeal, Gomez argues that the district court erred by applying the sixteen-level enhancement under § 2L1.2(b)(1)(A)(i) & (ii). We reverse and remand for re-sentencing.

Gomez is a Mexican national with a long history of deportation and unlawful behavior. He entered the country illegally as early as 1994. In 1998, he came to the attention of immigration authorities when he was convicted for driving a vehicle under the influence of alcohol and without a license. That same year, he was removed to Mexico following a removal hearing before an immigration judge. Gomez then reentered the country illegally. In 1999, he was convicted of violating California Health & Safety Code section 11379(a), an offense involving controlled substances. He was removed to Mexico once again in 1999. Gomez again illegally reentered the country. He was convicted in 2000 of receiving stolen goods and of driving under the influence. He was removed to Mexico a third time in 2000. On November 4, 2003, he was convicted in California state court of vehicular manslaughter while intoxicated

Page 782

without gross negligence, Cal.Penal Code § 192(c)(3) (1998),1 for which he was sentenced to two years' imprisonment. Following his release, Gomez was once again removed to Mexico in 2004. Six days later, Gomez was arrested at the Mexico-United States border and charged with the instant offense of attempted reentry. Following a non-jury trial, Gomez was found guilty and sentenced to 84 months' imprisonment with three years of supervised release.

Gomez's various appellate arguments stem from a sixteen-level enhancement that the district court applied to his advisory sentencing range under U.S.S.G. § 2L1.2(b)(1)(A), which requires such an enhancement

[i]f the defendant previously was deported, or unlawfully remained in the United States, after-

(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense....

For the enhancement to apply, the government must show that the defendant was lawfully removed from the United States after being convicted of a predicate offense. Id. The district court found that both Gomez's drug conviction under California Health & Safety Code section 11379(a) and his conviction for vehicular manslaughter while intoxicated, without gross negligence, Cal.Penal Code § 192(c)(3), were predicate offenses, justifying the enhancement.

Gomez challenges each component of these findings. He urges us to reverse his sentence because the district court erred by finding that (1) his conviction under California Health & Safety Code section 11379 was a “ drug trafficking offense for which the sentence imposed exceeded 13 months" ; (2) his California conviction for vehicular manslaughter without gross negligence, Cal.Penal Code § 192(c)(3), was a felony “ crime of violence" ; and (3) he was lawfully deported or unlawfully remained in the country following either of those convictions.2

“ We review de novo the district court's interpretation of the United States Sentencing Guidelines ..., review for clear error the district court's factual determinations, and review for abuse of discretion the district court's applications of the Guidelines to the facts." United States v. Holt, 510 F.3d 1007, 1010 (9th Cir.2007). We must reverse if the district court committed a significant procedural error, such as incorrectly calculating the advisory Guidelines' sentencing range. Gall v. United States, __ U.S. __, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007);

Page 783

United States v. Carty, 520 F.3d 984, 991-93 (9th Cir.) (en banc), cert. denied, __ U.S. __, 128 S.Ct. 2491, 171 L.Ed.2d 780 (2008).


Gomez argues that even if we hold that one of his convictions was a predicate offense under U.S.S.G. § 2L1.2(b), he was never “ lawfully deported" after either of those convictions because his 1999, 2000, and 2004 removals-those that occurred after one of the predicate convictions-were authorized by an immigration officer, not an immigration judge. During the pendency of Gomez's appeal, this argument has been foreclosed. In Morales-Izquierdo v. Gonzales, 486 F.3d 484, 498 (9th Cir.2007) (en banc), we held that removal by an immigration officer pursuant to a prior removal order is lawful. Gomez's initial removal occurred in 1998, following a hearing before an immigration judge. He returned to the United States, committed the crimes of conviction, and was then removed three additional times, the latest removal occurring in July 2004, following his most recent California conviction for vehicular manslaughter while intoxicated without gross negligence. This removal was performed by an immigration officer, but pursuant to the prior removal order. Consequently, the district court committed no legal error in relying upon the 2004 removal for purposes of the § 2L1.2(b) enhancement.


Gomez argues that his conviction under California Health & Safety Code section 11379(a) is not a predicate offense because it was not for a “ drug trafficking offense" and the sentence imposed for the conviction did not exceed thirteen months.


In order to determine if Gomez's California conviction was for a “ drug trafficking offense," we must apply the Taylor categorical approach, Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), wherein we compare the statutory definition of the underlying offense to the Guidelines definition of a “ drug trafficking offense." Id. at 599, 110 S.Ct. 2143; United States v. Navidad-Marcos, 367 F.3d 903, 907-08 (9th Cir.2004). The commentary to § 2L1.2 of the Guidelines defines a “ drug trafficking offense" as “ an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance ... or the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 2L1.2 cmt. 1(B)(iv). We have held that the California offense under section 11379(a) 3 is broader than the Guidelines' definition of a “ drug trafficking offense" because the California offense criminalizes simple transportation of a drug without intent to distribute it. Navidad-Marcos, 367 F.3d at 907-08; United States v. Almazan-Becerra, 482 F.3d 1085, 1088 (9th Cir.2007). Consequently, we cannot say that all convictions under section 11379(a) qualify for the enhancement.

Under the Taylor modified categorical approach, when we encounter a statute that is categorically overbroad as compared to the Guidelines definition, we may make a limited inquiry into the facts

Page 784

of the underlying conviction to determine whether the “ conviction was based on all of the elements of a qualifying predicate offense." Navidad-Marcos, 367 F.3d at 908. Our inquiry under the modified categorical approach is limited to the “ charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented to determine if a prior conviction qualifies for an enhancement." Almazan-Becerra, 482 F.3d at 1088 (internal quotation marks omitted). While we may not rely solely upon the charging papers, id., we may rely upon them in conjunction with a defendant's written plea agreement or a transcript of the plea to show that the defendant pled guilty to facts covered by the Guidelines offense, United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir.2002) (en banc).

In this case, the district court relied upon the criminal complaint and the defendant's written plea of guilty. According to the written plea agreement, Gomez pled guilty to Count Two of the written complaint, which alleged that he “ did unlawfully sell, furnish, administer, give away, or offer to sell, furnish, administer, and give away ... controlled substances." In other words, Gomez distributed a controlled substance or attempted to distribute one by offering to do so. Both distribution and attempted distribution of a...

To continue reading