Argued and Submitted October 19, 2015-Pasadena, California
Appeal from the United States District Court No. 3:13-cr-01636-BTM-1 for the Southern District of California Barry T. Moskowitz, Chief District Judge, Presiding
Kara Hartzler (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
Laura Duffy, United States Attorney, Bruce R. Castetter, Chief, Appellate Section, Anne Kristina Perry (argued), Peter Ko, and Mark R. Rehe, Assistant United States Attorneys, San Diego, California, for Plaintiff-Appellee.
Before: Andrew J. Kleinfeld, Johnnie B. Rawlinson, and Jacqueline H. Nguyen, Circuit Judges.
The panel affirmed a criminal judgment, and remanded for correction of the judgment, in a case in which the district court denied the defendant's motion to dismiss an information charging him with being found in the United States after removal, in violation of 8 U.S.C. § 1326.
The panel held that the denial of the defendant's motion to dismiss was proper because his conviction under California Health & Safety Code § 11378 constituted an aggravated felony. The panel wrote that although a § 11378 conviction is not categorically an aggravated felony, the modified categorical approach applies because § 11378 is a divisible statute. The panel wrote that there is no principled basis for distinguishing this case from decisions holding that California Health & Safety Code §§ 11377 and 11378 are divisible, or from a decision assuming the divisibility of California Health & Safety Code § 11379. The panel wrote that the defendant's contention that a federal regulation excluding pharmaceutical products containing L-meth from the federal schedules renders California's definition of methamphetamine overbroad is not persuasive, because the defendant failed to show a realistic probability of prosecution for possession of the excluded product.
The panel held that for similar reasons the district court did not err in applying a sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(B) on the ground that the defendant's § 11378 conviction was a felony drug trafficking offense.
The panel remanded for correction of the judgment, which erroneously states that the defendant pled guilty.
RAWLINSON, Circuit Judge:
Petitioner Martin Vega-Ortiz (Vega-Ortiz) appeals the district court's denial of his motion to dismiss an information charging him with being found in the United States after removal, in violation of 8 U.S.C. § 1326. Vega-Ortiz contends that his underlying deportation was invalid because his prior conviction for possession for sale of a controlled substance in violation of California Health & Safety Code ...