United States v. Marco Williams

587 F. App'x 413

Opinion

MEMORANDUM **

Defendant Marco Anthony Williams appeals the district court’s imposition of a 21-month sentence of imprisonment following his conviction of attempted entry of a removed alien, in violation of 8 U.S.C. § 1326. Reviewing de novo whether Defendant’s prior conviction warranted a 16-level increase under United States Sentencing Guidelines § 2L1.2, United States v. Gomez-Leon, 545 F.3d 777, 782 (9th Cir.2008), we affirm.

1. California Health and Safety Code “Section 11351 is categorically broader than the Guidelines definition of ‘drug trafficking offense’ because it criminalizes possession or purchase of certain substances that are not covered by the [Controlled Substances Act].” United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir.2012). But, as we held recently, section 11351 is divisible with respect to the type of controlled substance, so the modified categorical approach may be used. United States v. de la Torre-Jimenez, 771 F.3d 1163, 1167 (9th Cir.2014).

2. The district court correctly applied the modified categorical approach and concluded that Defendant’s conviction involved cocaine, a federally controlled substance. The documents at issue here are materially indistinguishable from the ones we found sufficient in Torre-Jimenez, id. at 1167-69. Defendant’s arguments concerning United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir.2007) (en banc), were rejected in Torre-Jimenez, 771 F.3d at 1167-69.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.