United States v. Rafael Ramirez-Macias

MEMORANDUM *

Rafael Ramirez-Macias appeals from the district court’s imposition of a 12-level enhancement to his sentence for illegally *819 reentering the United States in violation of 8 U.S.C. § 1326 . We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291 . Reviewing de novo the district court’s interpretation of the Sentencing Guidelines, United States v. Gomez-Leon, 545 F.3d 777, 782 (9th Cir.2008), we affirm.

The parties agree that California Health & Safety Code § 11352(a) is comparatively overbroad and, thus, is not categorically a predicate offense for an enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i). However, the parties disagree as to whether the controlled substance element of § 11352(a) is divisible under Descamps v. United States, — U.S.-, 133 S.Ct. 2276 , 186 L.Ed.2d 438 (2013). Ramirez-Macias’s contention that the element is indivisible is foreclosed by Coronado v. Holder, 747 F.3d 662 (9th Cir.2014), amended by 759 F.3d 977 00000 (9th Cir.2014). Coronado squarely holds that the similarly-structured controlled substance element of California Health & Safety Code § 11377(a) is divisible. Coronado, 759 F.3d at 983-84 . There is no material legal…

concurring:

We apply Coronado v. Holder, 747 F.3d 662 (9th Cir.2014), amended by 759 F.3d 977 (9th Cir.2014), as we must, but I have doubts whether that decision is correct. Here’s why:

Citing California state eases, Coronado holds that “the precise controlled substance possessed is not an essential element” of statutes such as California Health & Safety Code §§ 11352 and 11377. 759 *820 F.3d at 985 n. 4. Put another way, Coronado states that jury unanimity as to the specific identity of a controlled substance is not necessary to obtain a conviction under this type of statute.

But is California law so clear as to whether unanimous jury agreement on the specific substance is necessary to convict? Both sides reasonably can marshal intermediate appellate case law in their favor. Compare Ross v. Municipal Court of L.A., 49 Cal.App.3d 575 , 122 Cal.Rptr. 807 (1975) (affirming a trial court’s denial of a motion to dismiss a complaint which failed to name the specific controlled substance allegedly used because the complaint merely “did not tell Ross the means by which he committed the crime”) and People v. Romero, 55 Cal.App.4th 147, 156 , 64 Cal.Rptr.2d 16 (1997) (pleading…

FILED

NOT FOR PUBLICATION SEP 19 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-30245

Plaintiff - Appellee, D.C. No. 2:13-cr-00059-JLQ-

v.

MEMORANDUM*

RAFAEL RAMIREZ-MACIAS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Washington Justin L. Quackenbush, Senior District Judge, Presiding

Argued and Submitted August 25, 2014 Seattle, Washington

Before: NOONAN, HAWKINS, and CHRISTEN, Circuit Judges.

Rafael Ramirez-Macias appeals from the district court’s imposition of a 12-

level enhancement to his sentence for illegally reentering the United States in

violation of 8 U.S.C. § 1326. We have jurisdiction under 18 U.S.C. § 3742 and

U.S.C. § 1291. Reviewing de novo the district court’s interpretation of the Sentencing

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Guidelines, United States v. Gomez-Leon, 545 F.3d 777, 782 (9th Cir. 2008), we

affirm.

The parties…