gno.law

United States v. Jose Dominguez-Garcia

Court of Appeals for the Ninth Circuit · 13-50501 · 2014-12-17 · Unpublished

UNITED STATES of America, Plaintiff-Appellee, v. Jose DOMINGUEZ-GARCIA, Defendant-Appellant

Area
other
Panel
Jacqueline H. Nguyen (author), Mary M. Schroeder, Zouhary

Analysis

No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT DEC 17 2014

MOLLY C. DWYER, CLERK UNITED STATES OF AMERICA, No. 13-50501 U.S. COURT OF APPEALS Plaintiff - Appellee, D.C. No. 3:13-cr-2135-LAB v. MEMORANDUM*

JOSE DOMINGUEZ-GARCIA,

Defendant - Appellant.

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. 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 2 (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.

Cites, in this corpus