United States v. Miguel Beltran-Ochoa

540 F. App'x 646

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 24, 2013
• Docket: 12-10384
• Status: Unpublished

Opinion

MEMORANDUM *

Defendant Miguel Ambrosio Beltran-Ochoa appeals his sentence for attempted illegal entry after deportation, in violation of 8 U.S.C. § 1326. Beltran-Ochoa argues that the district court erred by imposing a twelve-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(l)(B), because his prior conviction for solicitation to possess narcotic drugs for sale, Ariz Rev. Stat. § § 13-1002, 13-3408(A)(2), is not categorically a “drug trafficking offense.”

1. Beltran-Ochoa does not dispute that a prior conviction for possession of a narcotic drug for sale, under Ariz.Rev.Stat. § 13-3408(A)(2), would categorically be a “drug trafficking offense” for purposes of § 2L1.2(b)(l)(B). See U.S.S.G. § 2L1.2(b)(l) cmt. n. l(B)(iv) (defining “drug trafficking offense”). He argues, however, that a conviction for solicitation to possess narcotic drugs for sale is not categorically a “drug trafficking offense.”

2. The sentencing guidelines provide that a “drug trafficking offense” is defined to “include the offenses of aiding and abetting, conspiring, and attempting[ ] to commit” any of the offenses counted under § 2L1.2(b)(l). U.S.S.G. § 2L1.2 cmt. n. 5. Beltran-Ochoa argues that because “solicitation” is not enumerated in note 5, a conviction for solicitation to possess narcotic drugs for sale is not categorically a drug trafficking offense. But we have previously rejected the argument that “solicitation” is not included in note 5 because it “differs from and is less serious than aiding and abetting, conspiring or attempting,” United States v. Contreras-Hernandez, 628 F.3d 1169, 1172 (9th Cir.2011). To the contrary, we have cited with approval the proposition that “ ‘solicitation is sufficiently similar to the offenses listed in the application note to be encompassed by the note.’ ” Id. at 1173 (quoting United States v. Cornelio-Pena, 435 F.3d 1279, 1286 (10th Cir.2006)); see also id. at 1172 (finding it significant that the guidelines state that “ ‘[t]he term ‘includes’ is not exhaustive’ ” (quoting U.S.S.G. § 1B1.1 cmt. n. 2)). Although Contreras-Hernandez concerned a sentencing enhancement for a prior felony “crime of violence” conviction, U.S.S.G. § 2L1.2(b)(l)(A)(ii), it considered the same note at issue in this case. Contreras-Hernandez, 628 F.3d at 1171 n. 9; see also U.S.S.G. § 2L1.2 cmt. n. 5 (referring to “subsection (b)(1)”). Cf. United States v. Shumate, 329 F.3d 1026, 1030 (9th Cir.2003); United States v. Cox, 74 F.3d 189, 190 (9th Cir.1996) (holding that “the omission of solicitation” from an almost identically worded commentary note, U.S.S.G. § 4B1.2 cmt. n. 1, “does not carry legal significance”). We therefore conclude that the district court did not err in imposing a twelve-level sentencing enhancement for Beltran-Ochoa’s prior drug trafficking conviction.

AFFIRMED.

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