PATRICK E. HIGGINBOTHAM, Circuit Judge.
Elmer Gomez-Alvarez pled guilty to illegal reentry in violation of 8 U.S.C. § 1326. He appeals from his sentence to challenge the district court's imposition of a 16-level sentencing enhancement based on a prior conviction for a drug trafficking offense. We affirm.
Gomez-Alvarez pled guilty without a written plea agreement to being unlawfully present in the United States after previously having been deported. His pre-sentence report ("PSR"), which relied on the 2013 version of the Sentencing Guidelines Manual, recommended a 16-level sentencing enhancement for a prior "drug trafficking offense" conviction pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i). The PSR based its recommendation on a prior conviction for possession for sale of a controlled substance in violation of California Health and Safety Code § 11351. The PSR listed "Jorge Ortiz" as one of several aliases used by Gomez-Alvarez and indicated that Gomez-Alvarez had been convicted of the offense in California "using the name Jorge Ortiz."
Gomez-Alvarez raised several written objections to the PSR. Relevant for our purposes, he objected to the 16-level enhancement on grounds that the documents relied upon by the government failed to establish the fact of a qualifying predicate conviction. He argued that the language of the California statue is overbroad — that is, it "encompasses conduct that falls out-side the contemporary generic meaning of a drug trafficking offense" — and that, although "the charging instrument [the Complaint] allege[d] ... possession and purchase of heroin," the Abstract did not specify a controlled substance.
Gomez-Alvarez's probation officer responded to the written objections in an addendum to the PSR. The probation officer, like counsel for Gomez-Alvarez, referred to the Complaint as the "charging instrument."
The district court rejected Gomez-Alvarez's objections. Citing United States v. Cruz-Campos,
Gomez-Alvarez then argued in favor of a below-guideline-range sentence on grounds that his criminal history was over-represented. The district court agreed and concluded that criminal history category IV more accurately represented Gomez-Alvarez's criminal history. As a result, Gomez-Alvarez's guideline range for imprisonment
Gomez-Alvarez raises two arguments on appeal: first, that the district court misapplied section 2L1.2 because section 11351 is not categorically a "drug trafficking offense" and the Complaint and Abstract do not establish as a factual matter that the conviction was for a qualifying offense; and second, that the government failed to establish at sentencing that the person convicted under section 11351 was, in fact, Gomez-Alvarez.
A. Standard of Review
Where a defendant preserves error by objecting at sentencing, we review the sentencing court's factual findings for clear error and its interpretation or application of the Sentencing Guidelines de novo.
Gomez-Alvarez provided written objections at sentencing regarding each issue designated on appeal. The government concedes that Gomez-Alvarez preserved his first argument by lodging an oral objection before the sentencing judge. The government contends, however, that Gomez-Alvarez's one-sentence written objection regarding his second argument failed to adequately direct the district court's attention to that issue. The government urges review for plain error rather than clear error. We have held, however, that "[o]nce a party raises an objection in writing," even "if he subsequently fails to lodge an oral on-the-record objection the error is nevertheless preserved for appeal."
Sentencing Guidelines section 2L1.2(b)(1)(A)(i) provides for a 16-level enhancement to a defendant's base offense level if he was previously deported after a conviction for a felony "drug trafficking offense" for which the sentence imposed exceeded 13 months.
"The [g]overnment bears the burden of proving by a preponderance of the relevant and reliable evidence that the facts
1. Whether the California Conviction Qualifies as a "Drug Trafficking Offense"
Under the categorical approach set forth in Taylor v. United States, a sentencing court looks to the elements of a prior offense, rather than the facts underlying the conviction, when classifying a prior offense for sentence enhancement purposes.
The Supreme Court has developed a "modified" categorical approach for those cases where "a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction," precluding a categorical determination of whether the offense qualifies to support an enhancement.
Our analysis proceeds in two parts: first, whether a conviction under section 11351 categorically qualifies as a predicate offense under section 2L1.2; and if not, second, whether, under the modified categorical approach, the government has established by introduction of Shepard-approved documents that the instant conviction qualifies.
Section 11351, which criminalizes "[p]ossession or purchase for sale of designated controlled substances," is a divisible statute-one that sets out one or more elements in the alternative.
In United States v. Leal-Vega,
This court adopted the reasoning of Valdavinos-Torres in an unpublished opinion in United States v. Lopez-Cano,
We agree with Gomez-Alvarez that a conviction for possession of a controlled substance under section 11351 does not categorically qualify as a predicate "drug trafficking offense" under section 2L1.2,
The district court found, based on the information contained in the Complaint and the Abstract, that Gomez-Alvarez had been convicted of possessing heroin — the crime charged in the Complaint.
Under California criminal procedure, though, in some circumstances a criminal complaint does not serve as the charging document for a subsequent conviction:
Where a separate information has been filed, the original criminal complaint cannot be relied upon under Shepard, because the defendant may ultimately have been convicted of a different offense under a different subsection of the statute.
We have held that a district court cannot rely on a criminal complaint to establish the elements of a prior conviction where evidence in the record affirmatively indicates that a separate information superseded the complaint. For example, in Lopez-Cano, the docket sheet and the case summary for the defendant's conviction both "indicate[d] that an information was filed," but the information was not in the record.
This case is different. Both Gomez-Alvarez and the probation officer compiling the PSR unequivocally referred to the Complaint as the "charging instrument" for the conviction.
Gomez-Alvarez next argues that the Abstract's failure to specify a controlled substance creates ambiguity as to whether the ultimate conviction was for possession of heroin as opposed to a different drug criminalized under section 11351 but not covered by the CSA. Again, we disagree. The Complaint expressly charged possession of heroin. The Abstract's failure to specify a controlled substance provides no affirmative indication that the conviction was for anything other than possession of heroin as charged in the Complaint. The district court limited its reliance on the Abstract to that document's only permissible use, "proving the existence of [the] prior ... conviction."
We conclude therefore that the government met its burden to establish that the conviction under section 11351 was for possession of heroin. As heroin is listed as a "controlled substance" under the CSA, and as the conviction garnered a two-year sentence of imprisonment, we hold that the conviction qualifies as a "drug trafficking offense" for purposes of enhancement under section 2L1.2.
2. Whether the Person Convicted was Gomez-Alvarez
The district court determined that Gomez-Alvarez was convicted under section 11351 using an alleged alias, "Jorge Ortiz." Gomez-Alvarez does not affirmatively deny that he and Jorge Ortiz are one and the same. He argues, though, that the government has not established with credible documentation the fact that he was the person convicted. Reviewing for clear error, we consider the plausibility of the district court's finding in light of the entire record.
For sentencing purposes, a district court "may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy."
The PSR listed "Jorge Ortiz" as one of several aliases used by Gomez-Alvarez. It listed Gomez-Alvarez's "real" birthdate as January 9, 1978, and indicated that he sometimes gave as his birthdate March 20, 1983. Gomez-Alvarez did not object to these lists and does not now dispute their validity. The PSR asserted that in 2006 Gomez-Alvarez was convicted in California using the name Jorge Ortiz. The Complaint, attached to the PSR, charged Jorge Ortiz, DOB: March 20, 1983. The corresponding Abstract, also attached, named Jorge Ortiz, DOB: January 9, 1978, as the person convicted. Although the two birthdates differ from each other, both coincide with birthdates used by Gomez-Alvarez (one with his unobjected-to "real" birthdate). Again, Gomez-Alvarez does not dispute these facts. In addition, the Complaint recited that "Jorge Ortiz" had previously been convicted in Los Angeles County on November 18, 1997. This information, too, coincides with a prior conviction listed in the PSR — one to which Gomez-Alvarez did not object.
As Gomez-Alvarez offered no rebuttal evidence to refute the information contained in the PSR, the district court was free to adopt it without further inquiry.
Gomez-Alvarez's sentence is AFFIRMED.
Palacios-Quinonez does not address the question at issue here: whether Gomez-Alvarez might have been convicted of a non-qualifying offense. Palacios-Quinonez appears to assume from the record that the underlying substance at issue was cocaine-an assumption the defendant-appellant does not appear to have challenged. See id. at 472 ("The enhancement was based on [the defendant-appellant's] California convictions of `possession for sale' of cocaine ...."); id. at 473 ("Palacios-Quinonez contends ... that his California conviction of possession for sale of cocaine does not qualify as a drug trafficking offense.").