Opinion
No. 13-50501
12-17-2014
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE DOMINGUEZ-GARCIA, Defendant - Appellant.
NOT FOR PUBLICATION
D.C. No. 3:13-cr-2135-LAB MEMORANDUM Appeal from the United States District Court for the Southern District of California
Larry Burns, District Judge, Presiding
Argued and Submitted November 20, 2014 Pasadena, California Before: SCHROEDER and NGUYEN, Circuit Judges, and ZOUHARY, District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The Honorable Jack Zouhary, United States District Judge, Northern District of Ohio, sitting by designation.
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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 § 11378 and similarly structured statutes are "divisible" within the meaning of Descamps v. United States, ___U.S.___, 133 S. Ct. 2276 (2013), and therefore subject to the modified categorical approach. See Padilla-Martinez v. Holder, ___F.3d___, 2014 WL 5421219, at *2 n.1 (9th Cir. Oct. 27, 2014) (concluding Calif. Health & Safety Code § 11358 is divisible); see also United States v. Torre-Jiminez, ___F.3d___, No. 13-50438 (Slip Opinion) (9th Cir. Nov. 7, 2014) (holding Calif. Health & Safety Code § 11351 is divisible); United States v. Huitron-Rocha, ___F.3d___, No. 13-50306 (Slip Opinion) (9th Cir. Nov. 7, 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-Jiminez, No. 13-150306, 2014 WL 578675, at *5 (9th Cir. Nov. 7, 2014).
AFFIRMED.