NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 8 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50414

Plaintiff-Appellee, D.C. No. 3:15-cr-02399-BTM-1 v.

REYNA RENTERIA-AGUILAR, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Barry Ted Moskowitz, District Judge, Presiding

Argued and Submitted February 12, 2018 Resubmitted April 8, 2019 Pasadena, California

Before: McKEOWN and WARDLAW, Circuit Judges, and QUIST,** District Judge.

Reyna Renteria-Aguilar appeals the district court’s denial of her motion to

dismiss the information against her for illegal reentry under 8 U.S.C. § 1326(d), as

well as the district court’s imposition of a sixteen-level sentence enhancement for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gordon J. Quist, United States District Judge for the Western District of Michigan, sitting by designation. her conviction under California Health & Safety Code § 11378. We have

jurisdiction under 28 U.S.C. § 1291. We affirm.

1. Renteria contends that the district court improperly denied her motion

to dismiss because she demonstrated each of the elements of § 1326(d).

Specifically, Renteria collaterally attacks the underlying deportation order on the

basis that the Immigration Judge (IJ) failed to properly inform her of her eligibility

for voluntary departure during the 2005 removal proceedings, and she was

prejudiced as a result.1 At the 2005 removal proceeding, the IJ concluded that

Renteria was ineligible to apply for voluntary departure or cancellation of removal

because her 2004 California first degree burglary conviction constituted an

aggravated felony. At the time, Renteria’s first degree burglary conviction did

constitute an aggravated felony under Ninth Circuit precedent interpreting 18

U.S.C. § 16(b). See United States v. Becker, 919 F.2d 568, 570–73 (9th Cir. 1990).

Renteria contends that intervening law rendered this advisement constitutionally

deficient, as the Supreme Court held in Sessions v. Dimaya, 138 S. Ct. 1204, 1210–

11 (2018), that 18 U.S.C. § 16(b) is unconstitutionally vague.

Generally, an IJ does not commit constitutional error by “provid[ing]

accurate information regarding an [immigrant’s] eligibility for relief ‘under the

1 A misadvisement as to the eligibility for relief, if available, satisfies each of the requirements of § 1326(d) for a collateral attack on a deportation order, subject to a showing of prejudice.

2 applicable law at the time of [her] deportation hearing.’” United States v. Vidal-

Mendoza, 705 F.3d 1012, 1017 (9th Cir. 2013) (citing United States v. Lopez-

Velasquez, 629 F.3d 894, 897 (9th Cir. 2010) (en banc)). To successfully

challenge her 2005 deportation order, Renteria must show that her case falls into

the “‘narrow exception’ to the general principle that the IJ need not anticipate post-

removal changes in the law.” Id. (citing Lopez-Velasquez, 629 F.3d at 895). We

have held that this narrow exception is satisfied where “post-removal precedent . . .

make[s] clear that the [immigrant] was apparently eligible for relief at the time of

[her] removal proceeding[s].” Id. at 1018. Here, however, Dimaya did not make

clear that Renteria was apparently eligible for voluntary departure at the time of

her 2005 deportation proceeding, as her first degree burglary conviction clearly

constituted an aggravated felony under controlling Ninth Circuit precedent at the

time. See Becker, 919 F.2d at 570–73. Therefore, the IJ did not commit

constitutional error by denying Renteria an opportunity to apply for voluntary

departure.

2. Renteria also challenges the district court’s imposition of a sixteen-

level sentence enhancement for her 2006 conviction under California Health &

Safety Code § 11378. Renteria argues that California Health & Safety Code

§ 11378 is overbroad and indivisible with respect to its controlled-substance

requirement, as well as its methamphetamine element. But we have clearly held

3 that § 11378’s controlled-substance requirement is divisible, warranting use of the

modified categorical approach. See United States v. Ocampo-Estrada, 873 F.3d

661, 668–69 (9th Cir. 2017). Moreover, because Renteria failed to challenge the

divisibility of § 11378’s methamphetamine element before the district court, we

review this argument for plain error. See Fed. R. Crim. P. 52(b). Because

Renteria’s argument as to the overbreadth and indivisibility of § 11378’s

methamphetamine element depends on an unresolved factual dispute – whether the

chemical structure of methamphetamine includes geometric isomers – any error

was not plain. See United States v. Zhou, 838 F.3d 1007, 1011 (9th Cir. 2016)

(“[A]n error that hinges on a factual dispute is not ‘obvious’ as required by the

‘plain error’ standard.”) (citing United States v. Scrivner, 114 F.3d 964, 968 (9th

Cir. 1997)).

3. Finally, Renteria contends that the district court erred in its modified

categorical approach analysis by relying on the Probation Officer’s Addendum to

her Presentence Report, which cited the felony complaint and abstract of judgment

from her 2006 proceedings to conclude that she had been found guilty of

possession with intent to sell methamphetamine. Because Renteria failed to raise

this objection at sentencing, we review this claim for plain error. See United States

v. Santiago, 466 F.3d 801, 803 (9th Cir. 2006) (“When a party does not lodge a

specific objection in the district court, yet asserts error on appeal, we review under

4 our familiar plain error standard[.]”). We have held that reliance on a Presentence

Report that specifically references “source[s] that we have previously deemed

acceptable, such as a signed plea agreement, a transcript of the plea hearing, or a

judgment of conviction” is not plain error. See United States v. Gonzalez-Aparicio,

663 F.3d 419, 432–33 (9th Cir. 2011) (internal citation and quotation marks

omitted). Because the Addendum to Renteria’s Presentence Report specifically

referenced sources that we have previously deemed acceptable for use in the

modified categorical approach analysis, the district court did not plainly err. See

Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1040 (9th Cir. 2011) (“We have

permitted reliance on an abstract of judgment in combination with a charging

document to establish that the defendant pled guilty to a generic crime under the

modified categorical approach.”).

AFFIRMED.

5