United States v. Valdavinos–Torres

• Decision Date: 20 December 2012
• Docket Number: No. 11–50529.,11–50529.
• Citation: 704 F.3d 679
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jorge VALDAVINOS–TORRES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

704 F.3d 679

UNITED STATES of America, Plaintiff–Appellee,

v.Jorge VALDAVINOS–TORRES, Defendant–Appellant.

No. 11–50529.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 6, 2012.

Filed Dec. 20, 2012.

Charlotte E. Kaiser (argued), Bruce R. Castetter, United States Attorneys Office, San Diego, CA, for Plaintiff–Appellee.

James Fife, Federal Defenders of San Diego, San Diego, CA, for Defendant–Appellant.

On Appeal from the United States District Court for the Southern District of California, Anthony J. Battaglia, District Judge, Presiding. D.C. No. 3:11–cr–01286–AJB–1.

Before: ALFRED T. GOODWIN and DIARMUID F. O'SCANNLAIN, Circuit Judges, and JACK ZOUHARY, District Judge.^*

OPINION

ZOUHARY, District Judge:

Introduction

Jorge Valdavinos–Torres (“Valdavinos”) was ordered removed in 2008 after immigration court proceedings. Sometime after his removal, Valdavinos returned to the United States without permission, and in 2010 was arrested and convicted for possession of methamphetamine in violation of California law. After serving a short jail sentence, Valdavinos was turned over to immigration officials and eventually indicted for illegal re-entry in violation of 8 U.S.C. § 1326. Following a conditional guilty plea, Valdavinos was convicted and sentenced to 46 months in custody and two years of supervised release.

Valdavinos appeals his conviction and sentence, claiming the district court erred in denying his motion to dismiss the indictment. Valdavinos also argues the record failed to prove that the drug trafficking conviction leading to his 2008 deportation was a controlled substance offense qualifying for a sixteen-level sentencing enhancement. Lastly, Valdavinos challenges the district court's imposition of supervised release.

This Court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and for the reasons set forth below, we AFFIRM the judgment of the district court.

Background

Procedural Background

An indictment filed on April 6, 2011 charged Valdavinos with a single count under 8 U.S.C. § 1326(a) and (b) for being a deported alien in the United States. In early June 2011, Valdavinos filed a motion to dismiss the indictment, arguing his previous deportation was invalid under 8 U.S.C. § 1326(d). The motion was fully briefed, and the district court held a hearing on June 24, 2011, which culminated in the denial of Valdavinos' motion. The district court confirmed its ruling in an order dated June 27, 2011.

On July 14, 2011, Valdavinos entered a conditional guilty plea to the charged offense, reserving the right to challenge the denial of his motion to dismiss, as well as his sentence. A pre-sentence investigation report was filed, and the Government filed a sentencing summary chart. Valdavinos also filed a sentencing summary chart, which asserted his prior conviction for possession of methamphetamine in violation of California law was not a deportable “aggravated felony” under 8 U.S.C. § 1101(a)(43)(M).

On December 9, 2011, the district court sentenced Valdavinos to 46 months in prison, followed by two years of supervised release. The court entered its final judgment on December 14, 2011, and Valdavinos filed his notice of appeal that same day.

Factual Background

On October 20, 2010, the San Diego Sheriff's Department arrested Valdavinos, an adult citizen of Mexico, in Vista, California, for possession of methamphetamine in violation of Cal. Health & Safety Code § 11377(a). Valdavinos was booked into the county jail immediately following his arrest. While there, Immigration and Customs Enforcement (“ICE”) agents determined Valdavinos was a deported alien who had not applied for permission to re-enter the United States. An immigration detainer was lodged that same day, meaning ICE officials intended to seek future custody of Valdavinos. Valdavinos was eventually convicted of the Section 11377(a) offense, and on November 2, 2010, was sentenced to 180 days in jail.

In mid-February 2011, Valdavinos was released from jail and transferred to ICE custody. A records check confirmed Valdavinos was a deported alien who had not applied for re-entry. Specifically, Valdavinos had been ordered removed from the United States by a January 29, 2008 administrative order, and was physically removed that same day through the San Ysidro, California Port of Entry. On April 6, 2011, a grand jury indicted Valdavinos for being a deported alien in the United States in violation of 8 U.S.C. § 1326(a) and (b).

On June 8, 2011, Valdavinos moved to dismiss the one-count indictment under 8 U.S.C. § 1326(d) on the grounds that his 2008 deportation was invalid. The district court held a hearing on the motion, during which the parties focused on whether the drug conviction that led to Valdavinos' 2008 deportation was in fact a deportable offense. The dispute centered on Valdavinos' September 2007 conviction for possession of methamphetamine for sale in violation of Cal. Health & Safety Code § 11378. According to the Government, that conviction was a controlled substance offense qualifying as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B), which includes drug trafficking crimes as aggravated felonies. Therefore, the Government argued Valdavinos was properly deported because an alien “convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii).

Not all convictions under Section 11378 qualify as drug trafficking offenses because, as this Court recognized in Ruiz–Vidal v. Gonzales, 473 F.3d 1072 (9th Cir.2007), not all substances punishable under California law are defined as controlled substances under federal law. Because the plea form for his 2007 conviction does not state he pled guilty specifically to trafficking a controlled substance as defined by federal law, Valdavinos argued his conviction lacked a factual basis showing it was a drug trafficking offense and thus an “aggravated felony.” He based his argument on People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409 (1970), which held a guilty plea to an offense does not necessarily mean the defendant admits the facts alleged in the indictment.

Rebutting Valdavinos' position, the Government noted he pled guilty specifically to Count Two of the Complaint, which unequivocally identified the controlled substance at issue as methamphetamine. Methamphetamine, of course, qualifies as a controlled substance under federal law. See21 U.S.C. §§ 802(6), 812(a)(3) sched. III. Therefore, although the factual basis in Valdavinos' plea form merely stated “Peo. v. West,” when read in conjunction with the Complaint, it became clear the controlled substance at issue was methamphetamine. The district court agreed with the Government, holding Valdavinos could not show prejudice as a result of his removal.

Moreover, the district court, relying on the removal documents showing Valdavinos was advised that he would be deported and given the opportunity for counsel, determined he did not suffer a due process violation as a result of his removal. At the conclusion of the hearing, Valdavinos' attorney requested the district court issue a written order, which it did on June 27, 2011.

On July 14, 2011, Valdavinos entered a conditional guilty plea to being a deported alien, but reserved the right to challenge the denial of his motion to dismiss and his sentence. The district court held Valdavinos' sentencing hearing on December 9, 2011, during which it determined his total adjusted offense level was 21. When combined with his criminal history category V, the offense resulted in a Sentencing Guidelines range of 70 to 87 months imprisonment. Specifically, the district court calculated the base offense level as 8 under U.S.S.G. § 2L1.2(a), and then applied a sixteen-level enhancement for his 2007 Section 11378 offense under U.S.S.G. § 2L1.2(b)(1)(A), as well as a three-level adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1(b). The Presentence Investigation Report (“PSR”) recommended a downward variance to 60 months in light of Valdavinos' supportive family, positive work history, and signs of substanceabuse. The PSR also recommended three years of supervised release.

The district court heard arguments from both parties regarding sentencing recommendations. Valdavinos agreed to his criminal history score, but argued the court should apply only a four-level enhancement for his 2007 Section 11378 conviction under U.S.S.G. § 2L1.2(b)(1)(D), which would result in a sentencing range of 21 to 27 months. Given the circumstances of his offense and his background, Valdavinos requested an 18–month sentence. Valdavinos addressed the court, apologizing for breaking the law, and indicating he did so only to be with his children and support his mother. Valdavinos told the district court he had not realized the harsh punishment for returning to the United States, where he had first come at age twelve.

The Government requested a 70–month sentence, noting that when Valdavinos was arrested for his current offense, he was driving with methamphetamine in his possession, and had a record for trafficking and using while driving. The district court adopted the PSR's calculations and reasoning, including the need for a variance. The court recognized Valdavinos' criminal history and that his involvement with drugs showed he was “a danger to the community.” The district court, however, noted Valdavinos' record was not the “worst” it had seen, and also acknowledged his family responsibilities.

The court ultimately sentenced Valdavinos to 46 months in prison. In addition, the court imposed a two-year term of supervised release, stating

Because you have family here and to make sure that you understood we mean business in this regard, I am going to impose supervised release, finding the added deterrent value with your family members here makes it a case that is contrary to the recommendations of the advisory Guidelines.

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