Averilla v. Schmidt

116 F. App'x 157

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 16, 2004
• Docket: No. 03-17042
• Status: Published

Opinion

MEMORANDUM

**

Edison Balinagas Averilla appeals the district court’s denial of his petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Ferreira v. Ashcroft, 382 F.3d 1045, 1049 (9th Cir.2004), and we affirm.

The district court properly determined that Averilla was convicted of an aggravated felony because, under Cal. Health & Safety Code § 11351.5, possession of cocaine base for sale involves a trafficking element. See Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 (9th Cir.2004) (holding that a state drug offense is an aggravated felony for immigration purposes only if it would be punishable as a felony under federal drug laws or if the crime contains a trafficking element.); cf. Ferreira, 382 F.3d at 1050 (indicating that a conviction for simple possession of a controlled substance under Cal. Health & Safety Code § 11377 did not contain a trafficking element).

The district court properly concluded that Averilla’s due process rights were not violated given that Averilla received a bond hearing after he was detained, even though he was not entitled to one See Demore v. Kim, 538 U.S. 510, 527-30, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003).

All pending motions are denied.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.