United States v. Norberto Reveles-Espinoza ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-50905
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00040-NAJ
NORBERTO REVELES-ESPINOZA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Argued and Submitted
October 20, 2006—Pasadena, California
Submission Withdrawn February 2, 2007
Resubmitted October 12, 2007
Filed April 15, 2008
Before: Raymond C. Fisher and Consuelo M. Callahan,
Circuit Judges, and Raner C. Collins, District Judge.*
Per Curiam Opinion
*The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
4031
UNITED STATES v. REVELES-ESPINOZA 4033
COUNSEL
Marisa L. Dersey, Federal Defenders of San Diego, Inc., San
Diego, California, for the defendant-appellant.
Jonathan I. Shapiro, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
4034 UNITED STATES v. REVELES-ESPINOZA
OPINION
PER CURIAM:
Norberto Reveles-Espinoza was convicted under 8 U.S.C.
§ 1326. He appeals his conviction, arguing that the deporta-
tion underlying his conviction was improper because: (1) the
immigration judge failed to advise him he was eligible for
cancellation of removal and (2) he received insufficient notice
of the asserted basis for his deportation. We affirm.
I. Factual and Procedural Background
Reveles-Espinoza was born in Mexico and was admitted to
the United States from Mexico as an immigrant in 1965. He
was convicted in Los Angeles County Superior Court of fel-
ony cultivation of marijuana under California Health and
Safety Code § 11358 in August 1999. In 2003, he was noti-
fied to appear before an immigration judge (IJ) based on the
government’s contention that he was deportable because of
conviction for a “controlled substance offense.” At the hear-
ing, Reveles-Espinoza conceded removability because of his
conviction for a “drug offense.” He admitted he had previ-
ously been convicted of heroin possession in 1989 and 1994.
The government asserted that Reveles-Espinoza had also been
convicted of battery against a police officer in 1981 and
unreasonable noise in 2003.
The IJ ruled that Reveles-Espinoza would have been able
to apply for a waiver if he had only the heroin and noise con-
victions, but because his most recent conviction for cultiva-
tion of marijuana was an aggravated felony, he was not
eligible for any relief. The IJ ordered him removed from the
United States. He appealed the removal to the Board of Immi-
gration Appeals, which affirmed the IJ’s decision without
opinion. He was deported to Mexico in August 2004.
In November 2004, Reveles-Espinoza was arrested in Cali-
fornia and admitted to being in the country unlawfully. He
UNITED STATES v. REVELES-ESPINOZA 4035
was indicted under 8 U.S.C. § 1326 as a previously excluded
and deported alien found in the United States without the
express consent of the Attorney General or the Department of
Homeland Security. He moved to dismiss the indictment,
arguing it was based on an invalid deportation because the IJ
failed to inform him that he was eligible for relief from
removal. The district court found that Reveles-Espinoza’s
conviction under California Health and Safety Code § 11358
was indeed an aggravated felony, making him ineligible for
relief. Reveles-Espinoza conditionally pled guilty, subject to
the right to appeal the issue of his prior deportation’s validity.
At sentencing, Reveles-Espinoza objected to the aggravated
felony enhancement based on his conviction under § 11358.
After noting that it considered the question one of first
impression and ordering further briefing on the question, the
district court ruled that the conviction had been substantiated
as an aggravated felony, and enhanced his sentence accord-
ingly.
II. Reveles-Espinoza’s State Conviction
Because Reveles-Espinoza moved to dismiss his § 1326
indictment based on an alleged due process violation during
his underlying deportation proceeding, we review the court’s
failure to dismiss de novo. See United States v. Ubaldo-
Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). We also
review de novo whether Reveles-Espinoza’s state conviction
was an aggravated felony within the meaning of federal law
and thus would make him ineligible for cancellation of
removal. See Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th
Cir. 2005).
[1] If Reveles-Espinoza’s conviction under California
Health and Safety Code § 11358 is an “aggravated felony”
within the meaning of 8 U.S.C. § 1229b, he was not eligible
for cancellation of removal and his deportation was proper.
See 8 U.S.C. § 1229b(a)(3). “ ‘Aggravated felony’ means . . .
4036 UNITED STATES v. REVELES-ESPINOZA
illicit trafficking in a controlled substance (as defined in sec-
tion 802 of Title 21), including a drug trafficking crime (as
defined in section 924(c) of Title 18).” 8 U.S.C.
§ 1101(a)(43). “[T]he term ‘drug trafficking crime’ means
any felony punishable under the Controlled Substances Act
. . . .” 18 U.S.C. § 924(c)(2). “[A] state offense constitutes a
‘felony punishable under the Controlled Substances Act’ only
if it proscribes conduct punishable as a felony under that fed-
eral law.” See Lopez v. Gonzales, 549 U.S. __, 127 S. Ct. 625,
633 (2006).
In determining whether a state offense fits within the
generic definition of an aggravated felony, “we first make a
categorical comparison of the elements of the statute of con-
viction to the generic definition, and decide whether the con-
duct proscribed by [the statute] is broader than, and so does
not categorically fall within, this generic definition.” Huerta-
Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003); see
Taylor v. United States, 495 U.S. 575, 602 (1990). We con-
clude that the state offense for which Reveles-Espinoza was
convicted categorically falls within the generic definition of
a “drug trafficking crime” and thus constitutes an “aggravated
felony” within the meaning of 8 U.S.C. § 1229b.
[2] California Health and Safety Code § 11358 criminalizes
“plant[ing], cultivat[ing], harvest[ing], dr[ying], or process-
[ing] any marijuana.” The information stating the count to
which Reveles-Espinoza eventually pled guilty alleged that he
did “plant, cultivate, harvest, dry, and process marijuana.”
Under federal law, the manufacture of marijuana may be pun-
ished by up to five years’ imprisonment and is therefore a fel-
ony. See 21 U.S.C. § 841(b)(1)(D); 18 U.S.C. § 3559(a)(4).
“The term ‘manufacture’ means the production . . . or pro-
cessing of a drug,” 21 U.S.C. § 802(15), and “[t]he term ‘pro-
duction’ includes the manufacture, planting, cultivation,
growing, or harvesting of a controlled substance,” 21 U.S.C.
§ 802(22).
UNITED STATES v. REVELES-ESPINOZA 4037
[3] Reveles-Espinoza focuses on the term “drying,” arguing
that that act alone would not qualify as an aggravated felony
and thus § 11358 is categorically overbroad. True, the Con-
trolled Substances Act does not use the term “drying,” but the
ordinary meaning of the terms “production” and “processing
of a drug” includes the act of drying. See, e.g., United States
v. Cordova Barajas, 360 F.3d 1037, 1041-42 (9th Cir. 2004)
(holding that a conviction for “cultivating” marijuana under
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 was supported by
sufficient evidence where officers found defendant with a gar-
den tool outside a structure “containing drying marijuana
plants”); see also Application Note 1 to U.S.S.G. § 2D1.1;
United States v. Moses, 289 F.3d 847, 850 (6th Cir. 2002);
United States v. Raines, 243 F.3d 419, 422 (8th Cir. 2001);
United States v. Smith, 51 F.3d 980, 981 (11th Cir. 1995) (per
curiam); United States v. Webb, 945 F.2d 967, 968 (7th Cir.
1991); United States v. 40 Moon Hill Road, 884 F.2d 41, 44
(1st Cir. 1989). By pleading guilty to a violation of § 11358,
Reveles-Espinoza thus admitted guilt of activities that are
clearly within the ambit of the federal felony of manufactur-
ing marijuana.
[4] We must also reject Reveles-Espinoza’s argument that
his conviction falls outside the federal definition of an aggra-
vated felony because of the possibility that he was convicted
under California’s theory of aiding and abetting liability. He
is correct that aiding and abetting liability is implicit in every
California information and that we therefore have no way to
determine whether he was convicted under that theory of lia-
bility. See Cal. Penal Code § 971. Reveles-Espinoza accepts
that those convicted of federal aiding and abetting liability are
punishable as principals. See 18 U.S.C. § 2(a). But he argues
that California’s aiding and abetting liability is broader
because California extends this liability to the “natural and
probable consequences” of the crime originally aided and
abetted.
[5] The Supreme Court, however, recently held in Gonzales
v. Duenas-Alvarez, 549 U.S. __, 127 S. Ct. 815 (2007), that
4038 UNITED STATES v. REVELES-ESPINOZA
the “natural and probable consequences doctrine” was not
“alone” sufficient to “show that the [California theft] statute
covers a nongeneric theft crime, for relatively few jurisdic-
tions . . . have expressly rejected” this doctrine. Id. at 821.
Moreover, as in Duenas-Alvarez, Reveles-Espinoza has failed
to “show something special about California’s version of the
doctrine — for example, that California in applying it crimi-
nalizes conduct that most other States would not consider” a
felony under the Controlled Substances Act, because he has
not “point[ed] to his own case or other cases in which the
state courts in fact did apply the statute in the special (non-
generic) manner for which he argues.” Id. at 821-22 (empha-
sis in original). Reveles-Espinoza has not demonstrated “a
realistic probability, not a theoretical possibility, that [Califor-
nia] would apply its statute to conduct that falls outside the
generic definition of a crime.” Id. at 822. We thus conclude
that California’s aiding and abetting liability is not suffi-
ciently broader than that under federal law such that it places
a conviction under § 11358 outside the ambit of felonies pun-
ishable under the Controlled Substances Act. Even if Reveles-
Espinoza was convicted under an aiding and abetting theory,
he is liable under federal as well as state law.
III. Notice of Basis of Deportation
[6] The fact that the Notice to Appear (NTA) served upon
Reveles-Espinoza characterized his § 11358 conviction as a
“controlled substance offense” rather than an “aggravated fel-
ony” was not a due process violation. See Salviejo-Fernandez
v. Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006) (holding
that “due process does not require inclusion of charges in the
NTA that are not grounds for removal but are grounds for
denial of relief from removal”). Even if Reveles-Espinoza
was initially unaware that a conviction under § 11358 carried
with it the potential to deprive him of eligibility for cancella-
tion of removal, the IJ provided notice by twice delaying the
hearing in order to allow the government time to obtain prior
conviction records so that she could determine Reveles-
UNITED STATES v. REVELES-ESPINOZA 4039
Espinoza’s eligibility for relief. This flagged the issue of
whether the § 11358 conviction was an “aggravated felony.”
Thus, Reveles-Espinoza received constitutionally sufficient
notice that he was subject to removal proceedings in which he
might be ineligible for cancellation of removal.
AFFIRMED.