FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 14-50354 Plaintiff-Appellee, D.C. No. v. 5:14-cr-00014- VAP-1 DALADIER MURILLO-ALVARADO, AKA Domingo Arredondo, AKA Daladier Murillo, AKA Daladier OPINION Alvarado Murillo, Defendant-Appellant. Appeal from the United States District Court for the Central District of California Virginia A. Phillips, Chief District Judge, Presiding Submitted July 8, 2016* Pasadena, California Filed December 4, 2017 * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 UNITED STATES V. MURILLO-ALVARADO Before: Richard R. Clifton, Michelle T. Friedland, Circuit Judges, and Edward M. Chen,** District Judge. Opinion by Judge Clifton SUMMARY*** Criminal Law Affirming a sentence, the panel held that section 11351 of the California Health and Safety Code (possession or purchase for sale of designated controlled substance) is divisible –as discussed in Mathis v. United States, 136 S. Ct. 2243 (2016) –as to its controlled substance requirement, such that a conviction under that statute may, applying the modified categorical approach, be held to be a drug trafficking offense under the United States Sentencing Guidelines. Applying the modified categorical approach, the panel held that the government established, through judicially noticeable documents, that the defendant’s § 11351 conviction was for a substance, cocaine, that was a controlled substance under federal law, and that the district court therefore properly applied a 16-level enhancement pursuant to USSG § 2L1.2(b)(1)(A) (2014) (amended 2016). ** The Honorable Edward M. Chen, United States District Judge for the Northern District of California, sitting by designation. *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. MURILLO-ALVARADO 3 COUNSEL James H. Locklin, Deputy Federal Public Defender; Hilary L. Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California. Abigail W. Evans, Assistant United States Attorney; Lawrence S. Middleton, Chief, Criminal Division; United States Attorney’s Office, Riverside, California; for Plaintiff- Appellee. OPINION CLIFTON, Circuit Judge: The primary question presented by this appeal is whether section 11351 of the California Health and Safety Code (“Possession or purchase for sale of designated controlled substances”) is a divisible statute, as discussed in Mathis v. United States, 136 S. Ct. 2243, 2249 (2016), such that a conviction under that statute may be held to be a drug trafficking offense under the United States Sentencing Guidelines (“USSG” or “Sentencing Guidelines”), applying the modified categorical approach. We previously held that section 11351 is divisible with regard to its controlled substance requirement. United States v. Torre-Jimenez, 771 F.3d 1163, 1167 (9th Cir. 2014). In Guevara v. United States, 136 S. Ct. 2542 (2016), however, the Supreme Court vacated and remanded a decision by this court, relying on that precedent, that section 11351 is divisible, directing us to reconsider the issue in light of Mathis. 4 UNITED STATES V. MURILLO-ALVARADO In United States v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc), we held ...
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