United States v. Michel-Garcia

MEMORANDUM ** Jose Alberto Michel-Garcia appeals from his 77-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm. Michel-Garcia contends that the government produced insufficient evidence to demonstrate clearly and unequivocally that his prior conviction under California Health & Safety Code § 11352(a) qualified as a “drug trafficking offense” for the purpose of a sentencing enhancement under U.S.S.G. § 2L1.2(b)(l)(A). California Health and Safety Code § 11352 is over-inclusive under the categorical approach of Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990). See United States v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir.2001) (en banc). Therefore, we must employ Taylor’s modified categorical approach to determine whether Michel-Garcia’s prior conviction qualifies as a predicate drug trafficking offense. See id. Considered together, the charging document, abstract of judgment, and the change of plea form, which specifically noted that Michel-Garcia pled guilty and admitted that he “sold .08 grams of cocaine,” clearly and unequivocally established that he was convicted of a “drug trafficking offense,” for the purposes of an enhancement under U.S.S.G. § 2L1.2(b)(1)(A). See Shepard v. United States, 544 U.S. 13, 21-22, 26 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (2005). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.