Francisco Duran Isordia v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 13, 2020
• Docket: 17-71064
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 13 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANCISCO JAVIER DURAN No. 17-71064 ISORDIA, AKA “Creeper” Moniker, AKA Francisco Duran, AKA Francisco Agency No. A077-306-235 Javier Duran-Isordia, AKA Francisco Javier Isordia, MEMORANDUM* Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 7, 2020** Pasadena, California

Before: KLEINFELD, HURWITZ, and BRESS, Circuit Judges.

Duran Isordia argues the Board erred in finding he committed a removable

offense because the statute of conviction, California Health and Safety Code

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). § 11379(a), is overbroad under Mathis v. United States, 136 S. Ct. 2243 (2016).

This is incorrect. This Court held in United States v. Barragan that Section 11379

is a divisible statute as to the controlled substance involved in the offense. 871

F.3d 689, 715 (9th Cir. 2017).

To determine which element of Section 11379 Duran Isordia was convicted

of, we may under the modified categorical approach, as described in United States

v. Torre-Jimenez, 771 F.3d 1163, 1167 (9th Cir. 2014), consider the complaint,

abstract of judgment, and docket sheet that were submitted in this case. They

established that the offense was selling, transporting, or offering to sell

methamphetamine, which is within the coverage of the Federal Controlled

Substance Act, as we held in United States v. Rodriguez-Gamboa, __ F.3d __ (9th

Cir. 2020). Duran Isordia’s argument about solicitation was not raised before the

Board and is in any event foreclosed by Mielewczyk v. Holder, 575 F.3d 992,

996–98, 996 n.1 (9th Cir. 2009).

The words “as charged” are not necessary to establish the crime to which

Duran Isordia pleaded “when the record is clear,” Torre-Jimenez, 771 F.3d at

1168–69, as it is in this case.

The petition for review is DENIED.