Opinion
No. 16-50119
03-18-2019
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOEL LUQUE-RODRIGUEZ, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 3:15-cr-00808-BEN-1 MEMORANDUM Appeal from the United States District Court for the Southern District of California
Roger T. Benitez, District Judge, Presiding Argued and Submitted March 7, 2019 Pasadena, California Before: WARDLAW and BENNETT, Circuit Judges, and CARDONE, District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. --------
Joel Luque-Rodriguez challenges the district court's denial of his motion to dismiss an indictment for attempted illegal reentry in violation of 8 U.S.C. § 1326. Specifically, Luque-Rodriguez argues that the underlying removal order, which served as a predicate element of his § 1326 conviction, was invalid because his conviction for manufacturing a controlled substance under California Health & Safety Code § 11379.6(a) was not an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). "We review de novo the denial of a motion to dismiss an indictment under 8 U.S.C. § 1326 when the motion is based on alleged due process defects in an underlying deportation proceeding." United States v. Alvarado-Pineda, 774 F.3d 1198, 1201 (9th Cir. 2014). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court properly rejected Luque-Rodriguez's argument that his California conviction is not an aggravated felony because the intent element under California law is broader than the intent element under the corresponding federal law. Luque-Rodriguez's argument fails to meet the "realistic probability" standard because he does not present a real-life example demonstrating that § 11379.6(a) would be applied in the overbroad manner he describes. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).
2. Luque-Rodriguez's remaining argument is that the district court erred in finding that § 11379.6(a) is an aggravated felony because California law criminalizes more types of methamphetamine than does federal law. We consider this argument under the plain error standard of review because it was not raised below. See Fed. R. Crim. P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.").
Because this argument raises a factual issue—whether geometric isomers of methamphetamine exist—the district court's purported error that turned on this unresolved factual issue did not amount to plain error. See United States v. Zhou, 838 F.3d 1007, 1011 (9th Cir. 2016) ("[A]n error that hinges on a factual dispute is not 'obvious' as required by the 'plain error' standard. . . . Accordingly, by the time we determine that an issue hinges on a factual dispute, we have concluded that any error is not 'plain.'").
The government's motion to supplement the record (Dkt. 49) is denied as moot.
AFFIRMED.