771 F.3d 1183
9th Cir.2014Background
- Defendant Efrain Huitron-Rocha pled guilty to reentry after removal, in violation of 8 U.S.C. § 1326(a), and received a 41‑month sentence.
- The district court applied the modified categorical approach under U.S.S.G. § 2L1.2(b)(1)(A) to treat a prior California conviction (Cal. Health & Safety Code § 11352(a) — possession/transportation of cocaine for sale) as a "drug trafficking offense."
- On appeal, Huitron‑Rocha argued for the first time that § 11352(a) is not a "divisible" statute under Descamps v. United States, so the modified categorical approach should not apply.
- The government alternatively argued the appeal was waived; the panel assumed, without deciding, the waiver did not bar review.
- The Ninth Circuit held § 11352(a) is divisible (like § 11351 and § 11377(a)), so the modified categorical approach properly applied, and affirmed the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cal. Health & Safety Code § 11352(a) is a divisible statute for Descamps analysis | Government: statute is divisible; district court properly used modified categorical approach | Huitron‑Rocha: § 11352(a) is indivisible, so modified categorical approach cannot be used | Court: § 11352(a) is divisible; modified categorical approach applies; affirmed |
| Whether Ninth Circuit precedent requires a different result | Government: Coronado and similar cases support divisibility | Huitron‑Rocha: relied on Rendon to argue against divisibility | Court: Coronado (and analogous analysis) controls; Rendon does not change outcome |
| Whether appeal waiver bars review | Government: alternative argument that appeal waived | Huitron‑Rocha: sought to proceed with appeal | Court: assumed waiver not dispositive and reached merits (did not decide waiver validity) |
| Whether error standard (de novo or plain) affects outcome | N/A | N/A | Regardless of review standard, no error occurred |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (clarifies when the categorical vs. modified categorical approach applies)
- Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014) (holds Cal. Health & Safety Code § 11377(a) is divisible)
- Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014) (addressed related divisibility issues; distinguished here)
- United States v. Jacobo Castillo, 496 F.3d 947 (9th Cir. 2007) (addresses effect of appeal waivers on appellate jurisdiction)