NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 9 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50309

Plaintiff-Appellee, D.C. No. 3:14-cr-2240-CAB v.

JUAN FERNANDO LIZARRAGA- MEMORANDUM*

LEYVA,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Argued and Submitted January 8, 2018 Pasadena, California

Before: M. SMITH and FRIEDLAND, Circuit Judges, and RAKOFF,** Senior District Judge.

Defendant Juan Fernando Lizarraga-Leyva appeals his conviction for

attempted illegal reentry in violation of 8 U.S.C. § 1326. In 2007, Lizarraga, a

citizen of Mexico, pleaded guilty to possession of methamphetamine for sale in

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, Senior United States District Judge for the Southern District of New York, sitting by designation. violation of California Health & Safety Code § 11378. Lizarraga was then removed

under 8 U.S.C. § 1228 because his 2007 conviction was deemed to be an

“aggravated felony” under 8 U.S.C. § 1101(a)(43)B). In 2014, Lizarraga was

apprehended while trying to reenter the United States, and charged with one count

of attempted illegal reentry due to his prior removal. Lizarraga moved to dismiss

the information, arguing that his prior removal was improper because his 2007

conviction was not an aggravated felony. The court denied Lizarraga’s motion, and

Lizarraga entered a conditional plea of guilty, preserving his right to appeal.

Lizarraga first argues that § 11378 is not categorically an aggravated felony

because it criminalizes more conduct than its federal analog. See Mellouli v. Lynch,

135 S. Ct. 1980, 1986 (2015) (describing the categorical approach). We reject this

argument for the reasons outlined in our decision issued this same day, see United

States v. Verduzco-Rangel, 15-50559.

Lizarraga also argues that his 2007 conviction is not an aggravated felony

because the Government cannot establish by clear and convincing evidence that the

drug involved in his trafficking offense is also banned federally. “California state

law treats the type of controlled substance as a separate element in prosecuting

relevant drug offenses.” Padilla-Martinez v. Holder, 770 F.3d 825, 831 n.3 (9th

Cir. 2014). We therefore apply the “modified categorical approach,” under which

we may “determine which particular offense the noncitizen was convicted of” by

2 examining a limited set of documents underlying the conviction to assess whether

it still qualifies as an aggravated felony. Moncrieffe v. Holder, 569 U.S. 184, 191

(2013). These documents include “the terms of the charging document, the terms

of a plea agreement or transcript of colloquy between judge and defendant in

which the factual basis for the plea was confirmed by the defendant, or [] some

comparable judicial record of this information.” Shepard v. United States, 544 U.S.

13, 26 (2005). “When a court using the modified categorical approach to determine

whether an underlying conviction is a predicate offense relies solely on the link

between the charging papers and the abstract of judgment, that link must be clear

and convincing.” Medina-Lara v. Holder, 771 F.3d 1106, 1113 (9th Cir. 2014).

Here, to prove that Lizarraga was in fact convicted of trafficking in

methamphetamine, a substance barred under federal law, the Government relies on,

among other things, an abstract of judgment, a felony complaint, and a change of

plea form. The complaint contained only one count as to Lizarraga: Count One,

which alleged that Lizarraga possessed methamphetamine for sale. The abstract of

judgment shows that Lizarraga pleaded guilty to Count One. However, the space

on the change of plea form where Lizarraga was meant to identify the count to

which he was pleading was left blank. Lizarraga argues that this blank space

introduces the possibility that he did not in fact plead to trafficking in

methamphetamine. This argument is foreclosed by Cabantac v. Holder, in which

3 we held that “where, as here, the abstract of judgment . . . specifies that a defendant

pleaded guilty to a particular count of the criminal complaint or indictment, we can

consider the facts alleged in that count.” 736 F.3d 787, 793-94 (9th Cir. 2013).

Although the abstract of judgment did not itself specify which substance Lizarraga

admitted to possessing, his complaint and change of plea form are sufficient to

demonstrate that it was methamphetamine. United States v. Valdavinos-Torres,

704 F.3d 679, 687 (9th Cir. 2012). Moreover, Lizarraga was charged with only one

count, so the blank space on the plea form introduces no ambiguity about the

conduct to which he pleaded.

AFFIRMED.

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