United States v. La Torre-Jimenez
| Decision Date | 07 November 2014 |
| Docket Number | No. 13–50438.,13–50438. |
| Citation | 771 F.3d 1163 |
| Parties | 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. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
James H. Locklin (argued), Deputy Federal Public Defender, and Sean K. Kennedy, Federal Public Defender, Los Angeles, CA, 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, CA, for Plaintiff–Appellee.
Appeal from the United States District Court for the Central District of California, George H. King, Chief District Judge, Presiding. D.C. No. 2:12–cr–00828–GHK–1.
Before: DAVID M. EBEL,*ANDREW J. KLEINFELD, and SUSAN P. GRABER, Circuit Judges.
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, ––– U.S. ––––, 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.” Reviewing de novo, United States v. Gomez–Leon, 545 F.3d 777, 782 (9th Cir.2008), we reject both arguments. Because the district court correctly applied the 16–level sentencing enhancement, we affirm.
Sentencing Guideline § 2L1.2(b)(1)(A) directs the sentencing court to increase the offense level by 16 if the defendant was removed after “a conviction for a felony that is (I) a drug trafficking offense for which the sentence imposed exceeded 13 months.” Here, there is no dispute that Defendant was removed after he was convicted of a felony for which the sentence imposed exceeded 13 months. The only question is whether the prior conviction qualifies as a “drug trafficking offense.” “We apply the categorical and modified categorical approaches described in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether a defendant's prior conviction satisfies U.S.S.G. § 2L1.2(b)(1)(A).” United States v. Leal–Vega, 680 F.3d 1160, 1163 (9th Cir.2012).
In applying the categorical approach, we must “compare the statutory definition of the underlying offense to the Guidelines definition of a ‘drug trafficking offense.’ ” Gomez–Leon, 545 F.3d at 783. California Health and Safety Code “[s]ection 11351 is categorically broader than the Guidelines definition of ‘drug trafficking offense’ because it criminalizes possession or purchase of certain substances that are not covered by the CSA [Federal Controlled Substances Act].” Leal–Vega, 680 F.3d at 1167.
The next step is to apply the modified categorical approach in order to determine whether Defendant's conviction involved a controlled substance covered by the CSA. Id. at 1167–68. Applying the modified categorical approach, the district court ruled that Defendant's conviction involved cocaine. Because cocaine is a controlled substance under the CSA, 21 U.S.C. § 812(c) sched. II(a)(4), the district court concluded that Defendant was convicted of a “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A).
Defendant argues that the district court erred by applying the modified categorical approach, because the California statute is not “divisible” within the meaning of Descamps. In the alternative, he asserts that, even if the modified categorical approach applies, the records submitted by the government are insufficient to demonstrate that his conviction was for possession of cocaine. We address those arguments in turn.
In Descamps, 133 S.Ct. at 2281, the Supreme Court held that the modified categoricalapproach may be used for a “ ‘divisible statute’ ”—one that “sets out one or more elements of the offense in the alternative.” But the modified categorical approach does not apply to “an ‘indivisible statute’— i.e., one not containing alternative elements.” Id. Defendant argues that California Health and Safety Code section 11351 is not divisible.
We do not write on a clean slate. In Coronado v. Holder, 759 F.3d 977, 983–85 (9th Cir.2014), we considered a similar California drug law, California Health and Safety Code section 11377(a). That statute provides that “every person who possesses any controlled substance [in various statutory lists]” has committed a crime. Cal. Health & Safety Code § 11377(a). We held that, because the statute contains a “listing of alternative controlled substances,” the statute was divisible within the meaning of Descamps. Coronado, 759 F.3d at 985. In reaching that conclusion, we looked to California law in rejecting the petitioner's argument that “ ‘the precise controlled substance possessed is not an essential element’ of § 11377(a).” Id. at 985 n. 4. Accordingly, we applied the modified categorical approach. Id. at 985–86.
On the question of divisibility with respect to the type of controlled substance, there is no meaningful distinction between sections 11377(a) and 11351 of the California Health and Safety Code. Identically to section 11377(a), section 11351 contains a “listing of alternative controlled substances.” Coronado, 759 F.3d at 985; see also Ragasa v. Holder, 752 F.3d 1173, 1176 (9th Cir.2014) (). Looking to California law, we find no meaningful distinction between the two sections on the question whether the controlled substance is an essential element.
The two sections criminalize different drug-related behavior (simple possession versus possession for sale or purchase for purposes of sale) and cover different statutory lists of controlled substances.1 But Defendant has offered—and we have discovered—no reason, under California law or otherwise, why those facts or any other difference between the statutes is relevant to the question of divisibility concerning the type of controlled substance. In sum, Coronado controls. We are bound to conclude that, like section 11377(a), section 11351 of the California Health and Safety Code is divisible within the meaning of Descamps.
Defendant directs us to examine our recent decision in Rendon v. Holder, 764 F.3d 1077, 1081 (9th Cir.2014), in which we held that the California burglary statute is not divisible with respect to an intent element. Were we to look to California law in the way Rendon instructs, he contends, we would conclude that California drug crimes are not divisible. We are unpersuaded.
As a three judge panel, we are bound by Coronado. Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir.2003) (en banc). We cannot disregard binding precedent, as Defendant asks us to do. Because Coronado controls, we must follow it.
Moreover, if we thought that two controlling cases were in irreconcilable conflict, we could not simply pick one to follow—we would be required to call this case en banc. See Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478–79 (9th Cir.1987) (en banc) ). But no irreconcilable conflict exists.
There certainly is no conflict in result: Coronado (like our case) pertains to the divisibility of a drug statute with respect to a list of controlled substances, whereas Rendon considered the divisibility of a burglary statute with respect to an intent element. Defendant recognizes that distinction, arguing instead that the method of analysis described in Rendon is inconsistent with the method used in Coronado. But, in Rendon, we expressly considered Coronado's method of determining divisibility and held that, because Coronado looked to California law, its approach was “ consistent with our approach” in Rendon, 764 F.3d at 1087 n. 11 (emphasis added). Accordingly, there appears to be no conflict in methodology, either.
Indeed, we recently applied the Rendon methodology to yet another California drug-related statute, California Health and Safety Code section 11378. Padilla–Martinez v. Holder, No. 11–72570, 770 F.3d 825, 2014 WL 5421219 (9th Cir. Oct. 27, 2014). As in Coronado, we held that the statute is divisible. Id. at *4 n. 3. And as in Coronado, the statute is divisible because it is drafted in the disjunctive (listing several controlled substances), and “California state law treats the type of controlled substance as a separate element” with respect to drug offenses. Id.
Viewed properly, then, the essence of Defendant's argument is simply that Coronado applied the methodology incorrectly or incorrectly assessed the content of California law. In other words, Defendant argues that Coronado was wrongly decided. As noted above, we cannot overrule Coronado. Miller, 335 F.3d at 899–900.
In conclusion, Coronado examined California law and held that a California drug law that covers a list of controlled substances is divisible. The California drug law at issue here also covers a list of controlled substances, and no meaningful distinction exists between the two statutes. Because there is no irreconcilable conflict between Coronado and any other case, we must follow Coronado. Accordingly, California Health...
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Varela v. Lynch
...that Gonzalez suggests that we should overrule our prior decision, this panel, of course, cannot do so. See United States v. de la Torre-Jimenez, 771 F.3d 1163, 1167 (9th Cir. 2014); Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc). Moreover, we decline to call for a vote that ......