United States v. Martin Vega-Ortiz
2016 U.S. App. LEXIS 8404
| 9th Cir. | 2016Background
- In 2010 Vega‑Ortiz pleaded guilty in California to possession for sale and transportation of a controlled substance under Cal. Health & Safety Code §§ 11378 and 11379; DHS initiated removal proceedings in 2011 and he was removed.
- In 2013 he was found back in the U.S. without authorization and charged under 8 U.S.C. § 1326 for being a deported alien found in the United States.
- Vega‑Ortiz moved to dismiss the § 1326 information, arguing his prior § 11378 conviction was not an aggravated felony because the California statute criminalized a broader range of substances than the federal schedules and was indivisible.
- The district court found § 11378 broader than the federal generic offense but divisible, applied the modified categorical approach, and concluded the record established conviction for a federally controlled substance; it denied dismissal and later imposed a 12‑level sentencing enhancement for prior drug trafficking.
- On appeal Vega‑Ortiz argued (1) § 11378 is not divisible and thus the modified categorical approach cannot apply, and (2) the statute is overbroad because federal regulations exclude a product containing L‑meth from the federal schedule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 11378 is divisible so the modified categorical approach may be used | Vega‑Ortiz: § 11378 is not divisible; cannot use modified categorical approach | Government: § 11378 lists alternative categories and California law treats substance identity as an element, so it is divisible | Court: § 11378 is divisible; modified categorical approach applies |
| Whether § 11378 is categorically overbroad due to federal exclusion for a product containing L‑meth | Vega‑Ortiz: California statute covers L‑meth product excluded federally, creating realistic probability of prosecution for non‑generic conduct | Government: California statute is silent on the L‑meth exception; no realistic probability of prosecution for excluded product | Court: No realistic probability shown; statute not overbroad on its face; overbreadth claim fails |
| Whether sentencing enhancement for prior drug trafficking was proper | Vega‑Ortiz: (implicit) prior conviction not a qualifying drug trafficking offense | Government: § 11378 prohibits possession with intent to distribute, qualifying as drug trafficking under U.S.S.G. §2L1.2 | Court: Enhancement properly applied; § 11378 conviction qualifies as a felony drug trafficking offense |
Key Cases Cited
- Alvarado‑Pineda v. Holder, 774 F.3d 1198 (9th Cir. 2014) (standard for collateral due‑process attack on removal)
- Valdavinos‑Torres v. United States, 704 F.3d 679 (9th Cir. 2012) (holding § 11378 not categorically within federal schedules)
- Padilla‑Martinez v. Holder, 770 F.3d 825 (9th Cir. 2014) (treating § 11378 as divisible)
- Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014) (explaining divisibility and elements/unanimity focus)
- Ruiz‑Vidal v. Lynch, 803 F.3d 1049 (9th Cir. 2015) (assuming divisibility of § 11379)
- Burgos‑Ortega v. United States, 777 F.3d 1054 (9th Cir. 2015) (use of realistic‑probability test for overbreadth challenges)
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (realistic‑probability requirement for categorical overbreadth)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (distinguishing categorical and modified categorical approaches)
- Taylor v. United States, 495 U.S. 575 (1990) (formulation of the categorical approach)