United States v. Efrain Huitron-Rocha

Defendant Efrain Huitron-Rocha appeals his 41-month sentence following a guilty plea to one count of reentering the United States after removal and without permission, in violation of 8 U.S.C. § 1326 (a). Applying the modified categorical approach, the district court concluded that Defendant’s prior conviction for possession and transportation of cocaine for sale, in violation of California Health and Safety Code section 11352(a), was for a “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(l)(A). On appeal, Defendant argues for the first time that the district court erred by using the modified categorical approach because section 11352(a) is not a “divisible” statute within the meaning of Descamps v. United States, — U.S. -, 133 S.Ct. 2276 , 186 L.Ed.2d 438 (2013). Whether we review de novo or for plain error, we conclude that no error occurred. California Health and Safety Code section 11352(a) is “divisible,” and the modified categorical approach applies. Accordingly, we affirm.

In Coronado v. Holder, 759 F.3d 977 , 983-85 & n. 4 (9th Cir.2014), we held that California Health and Safety Code section 11377(a) is divisible within the meaning of Descamps , because the…