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 ...