United States v. Vega-Ortiz, No. 14-50100 (9th Cir. 2016)
Annotate this CasePetitioner appealed the district court’s denial of his motion to dismiss an information charging him with being found in the United States after removal, in violation of 8 U.S.C. 1326. Petitioner argued that his underlying deportation was invalid because his prior conviction for possession for sale of a controlled substance in violation of California Health & Safety Code 11378 was not an aggravated felony. The court concluded that petitioner's removal order was validly premised on his conviction for violating Section 11378 where the district court properly applied the categorical approach to section 11378 and petitioner's overbreadth arguments are unavailing. The court correctly concluded that although section 11378 was not categorically an aggravated felony, application of the modified categorical approach resulted in a determination that petitioner was indeed convicted of an aggravated felony. Petitioner’s reliance on the federal regulation excluding a particular product containing L-meth from inclusion in the federal schedules is not persuasive, because petitioner failed to show a “realistic probability” of prosecution for possession of the excluded product. The court also concluded, for the same reasons, that the district court correctly imposed a sentencing enhancement for drug trafficking. Accordingly, the court affirmed the criminal judgment and remanded for correction of the judgment.
Court Description: Criminal Law. The panel affirmed a criminal judgment, and remanded for correction of the judgment, in a case in which the district court denied the defendant’s motion to dismiss an information charging him with being found in the United States after removal, in violation of 8 U.S.C. § 1326. The panel held that the denial of the defendant’s motion to dismiss was proper because his conviction under California Health & Safety Code § 11378 constituted an aggravated felony. The panel wrote that although a § 11378 conviction is not categorically an aggravated felony, the modified categorical approach applies because § 11378 is a divisible statute. The panel wrote that there is no principled basis for distinguishing this case from decisions holding that California Health & Safety Code §§ 11377 and 11378 are divisible, or from a decision assuming the divisibility of California Health & Safety Code § 11379. The panel wrote that the defendant’s contention that a federal regulation excluding pharmaceutical products containing L-meth from the federal schedules renders California’s definition of methamphetamine overbroad is not persuasive, because the defendant failed to show a realistic probability of prosecution for possession of the excluded product. The panel held that for similar reasons the district court did not err in applying a sentencing enhancement pursuant to UNITED STATES V. VEGA-ORTIZ 3 U.S.S.G. § 2L1.2(b)(1)(B) on the ground that the defendant’s § 11378 conviction was a felony drug trafficking offense. The panel remanded for correction of the judgment, which erroneously states that the defendant pled guilty.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.