United States v. Alfonso Anorve-Verduzco , 484 F. App'x 119 ( 2012 )

FILED
NOT FOR PUBLICATION JUN 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50050
Plaintiff – Appellee, D.C. No. CR-10-00330-PSG
v.
MEMORANDUM*
ALFONSO ANORVE-VERDUZCO,
Defendant – Appellant.
Appeal from the United States District Court
for the Central District of California
Philip Gutierrez, District Judge, Presiding
Argued and Submitted April 11, 2012
Pasadena, California
Before: ANDREW J. KLEINFELD and MILAN D. SMITH, JR., Circuit Judges,
and ALGENON L. MARBLEY, District Judge.**
Appellant Alfonso Anorve-Verduzco pled guilty to illegal reentry following
deportation in violation of 8 U.S.C. §§ 1326(a), (b)(1). At sentencing, the district
court found that Verduzco’s prior conviction for possession or purchase for sale of
designated controlled substances in violation of California Health and Safety Code
*This disposition is not appropriate for publication and is not precedent except as provided by
Ninth Circuit Rule 36-3.
**The Honorable Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.
section 11351, was a “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A)(i)
and imposed the 16-level enhancement prescribed in that section. Verduzco
appealed, arguing that the district court was correct when it ruled that his prior
California conviction did not categorically qualify as a “drug trafficking offense,”
but that it erred when it found that the prior California conviction qualified as a
“drug trafficking offense” under the modified categorical approach.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742,
and review de novo a district court’s determination that a prior conviction qualifies
for a sentencing enhancement under U.S.S.G. § 2L1.2. United States v. Valle-
Montalbo, 474 F.3d 1197, 1199 (9th Cir. 2007) (citing United States v. Villa-Lara,
451 F.3d 963, 964 (9th Cir. 2006)). For the following reasons, the district court’s
decision is affirmed.
Courts considering whether a prior conviction is sufficient to trigger one of
the prior conviction enhancements under § 2L1.2 must begin with the categorical
approach set forth in Taylor v. United States, 495 U.S. 575 (1990). See, e.g.,
United States v. Benitez-Perez, 367 F.3d 1200, 1203 (9th Cir. 2004) (explaining
that to determine whether a prior conviction qualifies as a predicate offense for the
16-level enhancement under § 2L1.2, the court must first apply Taylor’s
categorical approach); United States v. Pimentel-Flores, 339 F.3d 959, 96768 (9th
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Cir. 2003) (same). For the reasons articulated in United States v. Leal-Vega, No.
11-50065,1 we hold that a conviction for possession or purchase for sale of
designated controlled substances under California Health and Safety Code
section 11351 does not categorically qualify as a “drug trafficking offense” under
U.S.S.G. § 2L1.2(b)(1)(A)(i).
Turning to the modified categorical approach, Count Four of the Information
charging Verduzco indicates that he “unlawfully possess[ed] for sale and
purchase[d] for sale a controlled substance, to wit, cocaine” under California
Health and Safety Code section 11351, (ER 6), and the Abstract of Judgment
indicates that Verduzco pleaded guilty to Count Four for “Poss narc crtl subs for
sale” under code “HS,” section number “11351,” (ER 7). Taken together, these
documents indicate, “with reasonable certainty,” that Verduzco was convicted of
possession or purchase for sale of a cocaine under California Health and Safety
Code section 11351. See United States v. Snellenberger, 548 F.3d 699, 701 (9th
Cir. 2008) (en banc) (applying a “reasonable certainty” standard under the
modified categorical approach). Count Four and section 11351 of the California
Health and Safety Code are referenced in both documents, providing a sufficient
link between the documents for us to conclude that Verduzco pled guilty to
possessing or purchasing for sale cocaine, which is referenced in the Information.
1
Verduzco and Leal-Vega are related cases that were argued in front of us on the same day.
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Cocaine is one of the drugs listed on the federal Controlled Substances Act
(“CSA”) schedules, and accordingly, Verduzco’s prior California conviction is a
“drug trafficking offense” as defined under U.S.S.G. § 2L1.2(b)(1)(A)(i).
Verduzco offers three rationales to support his contention that the district
court erred when it held that his prior California conviction qualified as a “drug
trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A)(i) under the modified
categorical approach. First, in United States v. Vidal, 504 F.3d 1072, 1087 (9th
Cir. 2007) (en banc), we held that a charging document is sufficient to establish a
prior conviction if the judgment explicitly indicates that the defendant pled guilty
or was found guilty “as charged in the information,” and those magic words were
not present on Verduzco’s Abstract of Judgment. We, however, decline to read
Vidal’s holding so broadly and find our reasoning in our more recent en banc
decision, Snellenberger, persuasive. Snellenberger, 548 F.3d at 701 (relying on
count one of an information and a minute order stating that the defendant pleaded
nolo contendere to “count[] 1” to conclude the defendant’s conviction was a
generic burglary within the meaning of Taylor, even though the minute order did
not contain the words “as charged in the information”).
Second, Verduzco contends that the district court erred when it found that
the word “narc” in the Abstract of Judgment sufficiently narrows the offense
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because the California definition of “narcotics” includes only substances that are
also found in the CSA schedules. Third, Verduzco asserts that there can be no
certainty as to why the word “narc” rather than “cocaine” was used in the Abstract
of Judgment and this ambiguity forces us to “read[] between the lines,” which we
should not do under the modified categorical approach. See United States v.
Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004). We decline to reach these
issues because it is clear from the record before us that the drug at issue in
Verduzco’s conviction was cocaine.
Finally, we must address the Request for Judicial Notice that the
Government filed simultaneously with its Answering Brief, inviting us to take
judicial notice of Verduzco’s Plea Colloquy Transcript from his prior California
cocaine-trafficking case. It is unnecessary for us to take judicial notice of the Plea
Colloquy Transcript because the Information and Abstract of Judgment sufficiently
demonstrate Verduzco’s prior California conviction under the modified categorical
approach. Even if judicial notice were necessary, however, there was no
justification for the Government to have failed to present the Plea Colloquy
Transcript to the district court in the first instance, and we decline to take judicial
notice of facts that were not before the district court. Flick v. Liberty Mut. Fire Ins.
Co., 205 F.3d 386, 392 n.7 (9th Cir. 2000) (“It is rarely appropriate for an appellate
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court to take judicial notice of facts that were not before the district court.”); see
Reina Rodriquez v. United States, 655 F.3d 1182, 1193 (9th Cir. 2011) (“Appellate
courts are not sentencing courts.”).
AFFIRMED.
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