United States v. Alejandro Verduzco-Rangel

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 15-50559 Plaintiff-Appellee, D.C. No. v. 3:15-cr-00129-GPC ALEJANDRO VERDUZCO-RANGEL, Defendant-Appellant. OPINION Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding Argued and Submitted January 8, 2018 Pasadena, California Filed March 9, 2018 Before: Milan D. Smith, Jr. and Michelle T. Friedland, Circuit Judges, and Jed S. Rakoff, * Senior District Judge. Opinion by Judge Rakoff * The Honorable Jed S. Rakoff, Senior United States District Judge for the Southern District of New York, sitting by designation. 2 UNITED STATES V. VERDUZCO-RANGEL 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 ** 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. VERDUZCO-RANGEL 3 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. COUNSEL Ellis M. Johnston III (argued), Clarke Johnston Thorp & Rice APPC, San Diego, California, for Defendant- Appellant. Mark R. Rehe (argued), Assistant United States Attorney; ...

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