United States v. Jose Dominguez-Garcia

588 F. App'x 653

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 17, 2014
• Docket: 13-50501
• Status: Unpublished

Opinion

MEMORANDUM **

Defendant-Appellant Jose Dominguez-Garcia appeals his conviction for illegal reentry in violation of 8 U.S.C. § 1326. Dominguez-Garcia was previously removed after a conviction for possessing methamphetamine for sale. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and now affirm.

1. The district court did not err when it denied Dominguez-Garcia’s motion to dismiss the indictment. Our case law establishes that California Health & Safety Code § 11878 and similarly structured statutes are “divisible” within the meaning of Descamps v. United States, - U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and therefore subject to the modified categorical approach. See Padilla- Martinez v. Holder, 770 F.3d 825, at 830 n. 1 (9th Cir.2014) (concluding Calif. Health & Safety Code § 11358 is divisible); see also United States v. Torre-Jimenez, 771 F.3d 1163 (9th Cir.2014) (holding Calif. Health & Safety Code § 11351 is divisible); United States v. Huitron-Rocha, 771 F.3d 1183 (9th Cir.2014) (holding Calif. Health & Safety Code § 13352(a) is divisible); Coronado v. Holder, 759 F.3d 977 (9th Cir.2014) (holding Calif. Health & Safety Code § 11377(a) is divisible).

2. The complaint and abstract of judgment from the court of conviction were sufficient for the district court to conclude Dominguez-Garcia’s prior conviction was an aggravated felony. See United States v. Valdavinos-Torres, 704 F.3d 679, 687-88 (9th Cir.2012). Dominguez-Garcia’s abstract of judgment indicates he pled guilty to count 2 of the complaint. “Where, as here, the abstract of judgment unambiguously specifies that Defendant pleaded guilty to a specific count, we look to the facts alleged in that count in the charging document.” Torre-Jimenez, 771 F.3d at 1169 (9th Cir. Nov. 7, 2014).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.