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United States v. Verduzco-Rangel

United States Court of Appeals, Ninth Circuit

March 9, 2018

United States Of America, Plaintiff-Appellee,
v.
Alejandro Verduzco-Rangel, Defendant-Appellant.

          Argued and Submitted January 8, 2018 Pasadena, California

         Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding D.C. No. 3:15-cr-00129-GPC.

          Ellis M. Johnston III (argued), Clarke Johnston Thorp & Rice APPC, San Diego, California, for Defendant-Appellant.

          Mark R. Rehe (argued), Assistant United States Attorney; Laura E. Duffy, United States Attorney; Helen H. Hong, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

          Before: Milan D. Smith, Jr. and Michelle T. Friedland, Circuit Judges, and Jed S. Rakoff, [*] Senior District Judge.

         SUMMARY [**]

         Criminal Law

         The panel affirmed a conviction under 8 U.S.C. § 1326 for attempting to reenter the United States after a prior removal, in a case in which the defendant was removed in 2004 under 8 U.S.C. § 1227(a)(2)(A)(iii), a provision of the Immigration and Nationality Act that authorized removal if an alien had committed an "aggravated felony, " as defined by 8 U.S.C. § 1101(a)(43)(B).

         The aggravated felony on which the Government relied was the defendant's prior conviction of felony possession of methamphetamine in violation of California Health & Safety Code section 11378. Recognizing that section 11378 is divisible as to which substance the defendant was convicted of actually trafficking, and that courts can therefore look to underlying records to determine whether a conviction was for a federally banned substance, the panel noted that the defendant's 2004 indictment and plea agreement establish that he was convicted of trafficking methamphetamine, which is a controlled substance under both California and federal law.

         The panel rejected as irrelevant the defendant's argument that his California conviction is not categorically an aggravated felony because section 11378 is broader than federal law as to defendants' beliefs about the kind of substance in which they were trafficking. The panel explained that a section 11378 conviction is an aggravated felony under the first route laid out in Rendon v. Mukasey, 520 F.3d 967 (9th Cir. 2008), at least where, as here, the defendant was trafficking a substance that is also controlled by federal law; and that the panel thus need not consider whether the defendant's conviction would also qualify as an aggravated felony under the second route identified in Rendon. The panel wrote that because section 11378 has a trafficking element and requires a sufficiently culpable state of mind, section 11378 is a drug trafficking aggravated felony under § 1101(a)(43)(B) where the record of conviction establishes that the substance involved is federally controlled. The panel thus concluded that removal under § 1227(a)(2)(A)(iii) based on such a conviction under section 11378 is not fundamentally unfair.

          OPINION

          RAKOFF, SENIOR DISTRICT COURT JUDGE

         Defendant-Appellant Alejandro Verduzco-Rangel, an alien, appeals his conviction under 8 U.S.C. § 1326 for attempting to reenter the United States after a prior removal. Verduzco was removed in 2004 under 8 U.S.C. § 1227(a)(2)(A)(iii), a provision of the Immigration and Nationality Act ("INA") that authorized removal if an alien had committed an "aggravated felony, " as defined by § 1101(a)(43)(B). The aggravated felony on which the Government relied was Verduzco's prior conviction of felony possession for sale of methamphetamine in violation of California Health & Safety Code section 11378. Verduzco now argues that this conviction was not in fact an aggravated felony, rendering his removal invalid and requiring reversal of his recent conviction. For the reasons that follow, we disagree, reaffirm that a conviction under section 11378 is an aggravated felony for purposes of § 1227(a)(2)(A)(iii) where, as here, the record of conviction establishes that the substance involved was federally controlled, and affirm Verduzco's conviction.

         We review de novo Verduzco's collateral attack on his 2004 removal. United States v. Aguilera-Rios, 769 F.3d 626, 629 (9th Cir. 2014). To prevail on this collateral attack, Verduzco must demonstrate that (1) he exhausted all available administrative remedies, (2) his removal proceeding deprived him of an opportunity for judicial review, and (3) the entry of his removal order was "fundamentally unfair." 8 U.S.C. § 1326(d). For purposes of this appeal, the Government concedes the first two prongs, so the only question is whether the removal was fundamentally unfair. A removal order is fundamentally unfair if the relevant immigration laws did not in fact authorize deportation. See Aguilera-Rios, 769 F.3d at 630.

         The Supreme Court has decreed that courts should initially employ a "categorical approach" to determine whether a state offense is an aggravated felony under the INA. See Mellouli v. Lynch, 135 S.Ct. 1980, 1986 (2015). Under this approach, a defendant's actual conduct is irrelevant; rather, "the adjudicator must 'presume that the conviction rested upon nothing more than the least of the acts criminalized' under the state statute." Id. (quoting Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013)). Where, however, statutes "contain several different crimes, each described separately"-a situation commonly referred to as "divisibility"-courts may "determine which particular offense the noncitizen was convicted of" by examining a limited set of documents underlying the conviction. Moncrieffe, 569 U.S. at 191; see also Shepard v. United States, 544 U.S. 13, 26 ...


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