United States v. Jorge Valdavinos-Torres

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 11-50529

Plaintiff-Appellee,

D.C. No.

v. 3:11-cr-01286-

AJB-1

JORGE VALDAVINOS-TORRES,

Defendant-Appellant. OPINION

On Appeal from the United States District Court

for the Southern District of California

Anthony J. Battaglia, District Judge, Presiding

Argued and Submitted

November 6, 2012—Pasadena, California

Filed December 20, 2012

Before: Alfred T. Goodwin and Diarmuid F. O’Scannlain,

Circuit Judges, and Jack Zouhary, District Judge.*

Opinion by Judge Zouhary

*

The Honorable Jack Zouhary, United States District Judge for the

Northern District of Ohio, sitting by designation.

2 UNITED STATES V . VALDAVINOS-TORRES

SUMMARY**

Criminal Law

The panel affirmed a conviction and sentence for illegal

reentry in violation of 8 U.S.C. § 1326 in a case in which the

defendant collaterally attacked the underlying removal order.

The panel rejected the defendant’s arguments that his

failure to exhaust his administrative remedies was excused.

The panel held that under the modified categorical approach,

the defendant’s predicate conviction for possession of

methamphetamine for sale in violation of Cal. Health &

Safety Code § 11378 qualifies as a drug trafficking offense

under 8 U.S.C. § 1101(a)(43)(B), where the change of plea

form, the minute entry of the plea colloquy, and the abstract

of judgment all show that the defendant pleaded guilty to the

§ 11378 count charging possession for sale of

methamphetamine. The panel held that the defendant was not

denied his due process right to counsel during removal

proceedings and that because he has not demonstrated a

plausible claim for relief from the removal order, he was not

prejudiced by any such denial.

The panel held that the defendant’s § 11378 conviction is

categorically a drug trafficking offense supporting a 16-level

enhancement under U.S.S.G. § 2L1.2(b)(1)(A), and that the

conviction would also qualify for the enhancement under the

modified categorical approach.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V . VALDAVINOS-TORRES 3

The panel held that the district court’s imposition of

supervised release is substantively reasonable,

notwithstanding U.S.S.G. § 5D1.1(c) (2011) (providing that

supervised release should not “ordinarily” be imposed in a

case in which the defendant is a deportable alien who likely

will be deported after imprisonment), where the district court

gave a specific and particularized explanation that supervised

release would provide an added measure of deterrence and

protection based on the facts of this case.

COUNSEL

Charlotte E. Kaiser (argued), Bruce R. Castetter, United

States Attorneys Office, San Diego, California for Plaintiff-

Appellee.

James Fife, Federal Defenders of San Diego, San Diego,

California for Defendant-Appellant.

OPINION

ZOUHARY, District Judge:

INTRODUCTION

Jorge Valdavinos-Torres (“Valdavinos”) was ordered

removed in 2008 after immigration court proceedings.

Sometime after his removal, Valdavinos returned to the

United States without permission, and in 2010 was arrested

and convicted for possession of methamphetamine in

violation of California law. After serving a short jail

sentence, Valdavinos was turned over to immigration officials

4 UNITED STATES V . VALDAVINOS-TORRES

and eventually indicted for illegal re-entry in violation of

8 U.S.C. § 1326. Following a conditional guilty plea,

Valdavinos was convicted and sentenced to 46 months in

custody and two years of supervised release.

Valdavinos appeals his conviction and sentence, claiming

the district court erred in denying his motion to dismiss the

indictment. Valdavinos also argues the record failed to prove

that the drug trafficking conviction leading to his 2008

deportation was a controlled substance offense qualifying for

a sixteen-level sentencing enhancement. Lastly, Valdavinos

challenges the district court’s imposition of supervised

release.

This Court has jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a), and for the reasons set forth below, we

AFFIRM the judgment of the district court.

BACKGROUND

Procedural Background

An indictment filed on April 6, 2011 charged Valdavinos

with a single count under 8 U.S.C. §§ 1326(a) and (b) for

being a deported alien in the United States. In early June

2011, Valdavinos filed a motion to dismiss the indictment,

arguing his previous deportation was invalid under 8 U.S.C.

§ 1326(d). The motion was fully briefed, and the district

court held a hearing on June 24, 2011, which culminated in

the denial of Valdavinos’ motion. The district court

confirmed its ruling in an order dated June 27, 2011.

On July 14, 2011, Valdavinos entered a conditional guilty

plea to the charged offense, reserving the right to challenge

UNITED STATES V . VALDAVINOS-TORRES 5

the denial of his motion to dismiss, as well as his sentence.

A pre-sentence investigation report was filed, and the

Government filed a sentencing summary chart. Valdavinos

also filed a sentencing summary chart, which asserted his

prior conviction for possession of methamphetamine in

violation of California law was not a deportable “aggravated

felony” under 8 U.S.C. § 1101(a)(43)(M).

On December 9, 2011, the district court sentenced

Valdavinos to 46 months in prison, followed by two years of

supervised release. The court entered its final judgment on

December 14, 2011, and Valdavinos filed his notice of appeal

that same day.

Factual Background

On October 20, 2010, the San Diego Sheriff’s Department

arrested Valdavinos, an adult citizen of Mexico, in Vista,

California, for possession of methamphetamine in violation

of Cal. Health & Safety Code § 11377(a). Valdavinos was

booked into the county jail immediately following his arrest.

While there, Immigration and Customs Enforcement (“ICE”)

agents determined Valdavinos was a deported alien who had

not applied for permission to re-enter the United States. An

immigration detainer was lodged that same day, meaning ICE

officials intended to seek future custody of Valdavinos.

Valdavinos was eventually convicted of the Section 11377(a)

offense, and on November 2, 2010, was sentenced to 180

days in jail.

In mid-February 2011, Valdavinos was released from jail

and transferred to ICE custody. A records check confirmed

Valdavinos was a deported alien who had not applied for re-

entry. Specifically, Valdavinos had been ordered removed

6 UNITED STATES V . VALDAVINOS-TORRES

from the United States by a January 29, 2008 administrative

order, and was physically removed that same day through the

San Ysidro, California Port of Entry. On April 6, 2011, a

grand jury indicted Valdavinos for being a deported alien in

the United States in violation of 8 U.S.C. §§ 1326(a) and (b).

On June 8, 2011, Valdavinos moved to dismiss the one-

count indictment under 8 U.S.C. § 1326(d) on the grounds

that his 2008 deportation was invalid. The district court held

a hearing on the motion, during which the parties focused on

whether the drug conviction that led to Valdavinos’ 2008

deportation was in fact a deportable offense. The dispute

centered on Valdavinos’ September 2007 conviction for

possession of methamphetamine for sale in violation of Cal.

Health & Safety Code § 11378. According to the

Government, that conviction was a controlled substance

offense qualifying as an “aggravated felony” under 8 U.S.C.

§ 1101(a)(43)(B), which includes drug trafficking crimes as

aggravated felonies. Therefore, the Government argued

Valdavinos was properly deported because an alien

“convicted of an aggravated felony at any time after

admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii).

Not all convictions under Section 11378 qualify as drug

trafficking offenses because, as this Court recognized in Ruiz-

Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007), not all

substances punishable under California law are defined as

controlled substances under federal law. Because the plea

form for his 2007 conviction does not state he pled guilty

specifically to trafficking a controlled substance as defined by

federal law, Valdavinos argued his conviction lacked a

factual basis showing it was a drug trafficking offense and

thus an “aggravated felony.” He based his argument on

People v. West, 477 P.2d 409 (Cal. 1970), which held a guilty

UNITED STATES V . VALDAVINOS-TORRES 7

plea to an offense does not necessarily mean the defendant

admits the facts alleged in the indictment.

Rebutting Valdavinos’ position, the Government noted he

pled guilty specifically to Count Two of the Complaint,

which unequivocally identified the controlled substance at

issue as methamphetamine. Methamphetamine, of course,

qualifies as a controlled substance under federal law. See

21 U.S.C. §§ 802(6), 812(a)(3) sched. III. Therefore,

although the factual basis in Valdavinos’ plea form merely

stated “Peo. v. West,” when read in conjunction with the

Complaint, it became clear the controlled substance at issue

was methamphetamine. The district court agreed with the

Government, holding Valdavinos could not show prejudice as

a result of his removal.

Moreover, the district court, relying on the removal

documents showing Valdavinos was advised that he would be

deported and given the opportunity for counsel, determined

he did not suffer a due process violation as a result of his

removal. At the conclusion of the hearing, Valdavinos’

attorney requested the district court issue a written order,

which it did on June 27, 2011.

On July 14, 2011, Valdavinos entered a conditional guilty

plea to being a deported alien, but reserved the right to

challenge the denial of his motion to dismiss and his

sentence. The district court held Valdavinos’ sentencing

hearing on December 9, 2011, during which it determined his

total adjusted offense level was 21. When combined with his

criminal history category V, the offense resulted in a

Sentencing Guidelines range of 70 to 87 months

imprisonment. Specifically, the district court calculated the

base offense level as 8 under U.S.S.G. § 2L1.2(a), and then

8 UNITED STATES V . VALDAVINOS-TORRES

applied a sixteen-level enhancement for his 2007 Section

11378 offense under U.S.S.G. § 2L1.2(b)(1)(A), as well as a

three-level adjustment for acceptance of responsibility under

U.S.S.G. § 3E1.1(b). The Presentence Investigation Report

(“PSR”) recommended a downward variance to 60 months in

light of Valdavinos’ supportive family, positive work history,

and signs of substance abuse. The PSR also recommended

three years of supervised release.

The district court heard arguments from both parties

regarding sentencing recommendations. Valdavinos agreed

to his criminal history score, but argued the court should

apply only a four-level enhancement for his 2007 Section

11378 conviction under U.S.S.G. § 2L1.2(b)(1)(D), which

would result in a sentencing range of 21 to 27 months. Given

the circumstances of his offense and his background,

Valdavinos requested an 18-month sentence. Valdavinos

addressed the court, apologizing for breaking the law, and

indicating he did so only to be with his children and support

his mother. Valdavinos told the district court he had not

realized the harsh punishment for returning to the United

States, where he had first come at age twelve.

The Government requested a 70-month sentence, noting

that when Valdavinos was arrested for his current offense, he

was driving with methamphetamine in his possession, and

had a record for trafficking and using while driving. The

district court adopted the PSR’s calculations and reasoning,

including the need for a variance. The court recognized

Valdavinos’ criminal history and that his involvement with

drugs showed he was “a danger to the community.” The

district court, however, noted Valdavinos’ record was not the

“worst” it had seen, and also acknowledged his family

responsibilities.

UNITED STATES V . VALDAVINOS-TORRES 9

The court ultimately sentenced Valdavinos to 46 months

in prison. In addition, the court imposed a two-year term of

supervised release, stating

Because you have family here and to make

sure that you understood we mean business in

this regard, I am going to impose supervised

release, finding the added deterrent value with

your family members here makes it a case that

is contrary to the recommendations of the

advisory Guidelines.

Valdavinos now claims his conviction must be reversed

due to the court’s erroneous ruling on the motion to dismiss

the indictment under Section 1326(d). Valdavinos also

argues the record failed to prove his prior conviction was a

controlled substance offense qualifying for a U.S.S.G.

§ 2L1.2(b)(1)(A) enhancement. Valdavinos lastly challenges

the district court’s imposition of supervised release, arguing

it was excessive and contrary to the Sentencing

Commission’s renouncement of supervised release in

ordinary illegal re-entry cases.

DISCUSSION

The District Court Properly Denied Valdavinos’ Motion

to Dismiss the Indictment

Standard of Review

This Court reviews de novo “the district court’s denial of

a motion to dismiss an indictment under 8 U.S.C. § 1326

when the motion is based on an alleged deprivation of due

process in the underlying removal proceedings.” United

10 UNITED STATES V . VALDAVINOS-TORRES

States v. Villavicencio-Burrel, 608 F.3d 556, 559 (9th Cir.

2010) (citing United States v. Moriel-Luna, 585 F.3d 1191,

1196 (9th Cir. 2009)). The district court’s factual findings are

reviewed for clear error. United States v. Ramos, 623 F.3d

672, 680 (9th Cir. 2010). Furthermore, to prevail in a

collateral attack on the underlying removal order in a motion

to dismiss, Valdavinos “must, as a threshold matter, show that

he exhausted his administrative remedies.” Villavicencio-

Burrel, 608 F.3d at 559 (citing 8 U.S.C. § 1326(d)(1)); see

also United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048

(9th Cir. 2004).

Valdavinos Failed to Comply With Section 1326(d)’s

Exhaustion Requirement

Because Valdavinos’ 2008 removal order serves as a

predicate element of his illegal re-entry offense under Section

1326, Valdavinos may collaterally attack the removal order

under the Due Process Clause. See United States v. Reyes-

Bonilla, 671 F.3d 1036, 1042–43 (9th Cir. 2012); United

States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir.

2004). To succeed in a such a challenge, however,

Valdavinos must demonstrate: (1) he exhausted any

administrative remedies that may have been available to seek

relief; (2) the deportation proceedings from which the order

issued improperly denied him the opportunity for judicial

review; and (3) the order was fundamentally unfair. 8 U.S.C.

§ 1326(d); see Reyes-Bonilla, 671 F.3d at 1042; United States

v. Becerril-Lopez, 541 F.3d 881, 885 (9th Cir. 2008). An

underlying removal order is “fundamentally unfair” if a

defendant’s due process rights were violated by defects in his

deportation process, and he suffered prejudice as a result.

Reyes-Bonilla, 671 F.3d at 1043; United States v. Ubaldo-

Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004).

UNITED STATES V . VALDAVINOS-TORRES 11

Moreover, an alien is barred from collaterally attacking

his removal order as a defense to a Section 1326 charge “if he

validly waived the right to appeal that order during the

deportation proceedings.” United States v. Muro-Inclan,

249 F.3d 1180, 1182 (9th Cir. 2001) (internal citations

omitted). This exhaustion requirement, however, cannot bar

collateral review if Valdavinos’ waiver of his right to appeal

“did not comport with due process” – that is, his waiver was

not “considered and intelligent.” Id. at 1183; see also United

States v. Mendoza-Lopez, 481 U.S. 828, 839–40 (1987)

(holding due process requires judicial review of underlying

deportation proceedings when waiver of the right to appeal

was not considered or intelligent).

Valdavinos concedes he did not exhaust his

administrative remedies, but urges this Court to excuse his

non-exhaustion because he “was denied due process by being

removed without a proper, legal basis, by a denial of the right

to counsel, and by failure to offer him the opportunity to

apply for available relief.” These arguments fail.

Valdavinos’ Section 11378 Conviction Constitutes

an “Aggravated Felony” Under the Modified

Categorical Approach

First, Valdavinos was charged with a proper legal basis

for deportation. According to Valdavinos, his due process

rights were violated and he suffered prejudice because his

2007 conviction for possession of methamphetamine for sale

under Section 11378 does not constitute a drug trafficking

offense under 8 U.S.C. § 1101(a)(43)(B), which classifies

trafficking offenses as deportable “aggravated felonies.”

Valdavinos argues that, because he was not an aggravated

12 UNITED STATES V . VALDAVINOS-TORRES

felon, he had a “plausible ground” for relief from removal by

way of voluntary removal under 8 U.S.C. § 1229c.

In determining whether an offense qualifies as an

aggravated felony, this Court looks to the statute under which

the defendant was convicted and compares its elements to the

relevant definition of an aggravated felony under federal law,

which in this case, is found in Section 1101(a)(43)(B). See

Taylor v. United States, 495 U.S. 575, 602 (1990). This

Court’s first task under Taylor is to make a categorical

comparison. Under the “categorical approach,” Valdavinos’

2007 drug conviction qualifies as an aggravated felony if the

“full range of conduct covered by [Section 11378] falls

within the meaning of” that term. See United States v. Vidal,

504 F.3d 1072, 1076 (9th Cir. 2007) (en banc) (internal

citations omitted). In other words, if Section 11378 is

broader than the generic definition, then it is unsuitable for

federal use because there is no assurance it relates to conduct

Congress intended to punish. See Taylor, 495 U.S. at

599–602. To make this determination, this Court looks at

“the least egregious end of [Section 11378]’s range of

conduct” to determine its categorical scope. United States v.

Laurico-Yeno, 590 F.3d 818, 821 (9th Cir. 2010).

Making that determination here is an easy task. Indeed,

this Court has held repeatedly that California’s controlled

substances schedules are broader than their federal

counterparts. See, e.g., Ruiz-Vidal v. Gonzales, 473 F.3d

1072, 1078 (9th Cir. 2007) (holding California law punishes

some substances not included in the Controlled Substances

Act, 21 U.S.C. § 802); Cabantac v. Holder, — F.3d —, No.

09-71336, 2012 WL 3608532, at *1 (9th Cir. Aug. 23, 2012)

(same). Therefore, Valdavinos correctly asserts that his prior

conviction under Section 11378 cannot be a categorical

UNITED STATES V . VALDAVINOS-TORRES 13

controlled substance or drug trafficking offense under federal

law.

The inquiry does not end here, however. When a criminal

offense does not satisfy Taylor’s categorical approach

because it criminalizes both conduct that does and does not

qualify as an aggravated felony, the court must turn to the so-

called “modified categorical approach.” See Ye v. INS,

214 F.3d 1128, 1133 (9th Cir. 2000); Vidal, 504 F.3d at 1077.

Under the modified approach, this Court conducts a limited

examination of documents in the conviction record to

determine if there is sufficient evidence to conclude

Valdavinos was convicted of the elements of the generically

defined crime, even though Section 11378 is facially over-

inclusive. See id. This is where Valdavinos falls short.

Valdavinos contends his 2007 conviction cannot support

the finding that he was convicted of an aggravated felony

because, under People v. West, 3 Cal. 3d 595 (1970), a guilty

plea to an offense does not necessarily mean the defendant

admitted all facts alleged in the indictment. However, it is

well-established in this Circuit that, in undertaking an

analysis of the record of conviction, this Court “may consider

the charging documents in conjunction with the plea

agreement, the transcript of a plea proceeding, or the

judgment to determine whether the defendant pled guilty to

the elements of the generic crime.” Ruiz-Vidal, 473 F.3d at

1078 (citing United States v. Corona-Sanchez, 291 F.3d 1201,

1211 (9th Cir. 2002)) (emphasis added); see also Shepard v.

United States, 544 U.S. 13, 20–26 (2005). Moreover, this

Court recently acknowledged that courts may consider the

facts alleged in a specific count of a complaint where an

abstract of judgment or even a minute entry specifies that a

defendant pled guilty to that particular count. See Cabantac,

14 UNITED STATES V . VALDAVINOS-TORRES

2012 WL 3608532, at *2; see also United States v.

Snellenberger, 548 F.3d 699, 701–02 (9th Cir. 2008) (en

banc) (reading a minute order in tandem with a complaint to

conclude the defendant’s conduct was a crime of violence).

Therefore, although a charging paper alone is never

sufficient, United States v. Parker, 5 F.3d 1322, 1327 (9th

Cir. 1993), a charging paper may be considered in

combination with other documents in the record to determine

whether Valdavinos pled guilty to an aggravated felony. See

Ruiz-Vidal, 473 F.3d at 1078 (citing Corona-Sanchez,

291 F.3d at 1211). In this case, the record leaves no doubt

Valdavinos pled guilty to possession of methamphetamine for

sale in violation of Section 11378.

The record of conviction for Valdavinos’ 2007 drug

offense contains four documents: (1) Felony Complaint; (2)

change of plea form; (3) minute entry of the plea colloquy;

and (4) abstract of judgment. Count Two of the Complaint

unequivocally lists the controlled substance underlying

Valdavinos’ Section 11378 conviction as methamphetamine:

On or about April 23, 2007 . . . the crime of

POSSESSION FOR SALE – 1 OZ OR

MORE, in violation of HEALTH AND

SAFETY CODE SECTION 11378, a felony

was committed by . . . Jorge [Valdavinos]-

Torres . . . who did unlawfully possess for

purpose of sale a controlled substance, to wit,

Methamphetamine.

The change of plea form indicates Valdavinos pled guilty

to Count Two, which, as just discussed, states he possessed

methamphetamine for sale in violation of Section 11378.

UNITED STATES V . VALDAVINOS-TORRES 15

These two documents in conjunction with one another suffice

to establish the substance at issue was methamphetamine.

The abstract of judgment and the minute entry of Valdavinos’

plea colloquy reinforce this conclusion. Both of those

documents, like the plea form, indicate Valdavinos pled

guilty to Count Two of the Complaint. In short, the district

court did not err in concluding the record documents in this

case showed Valdavinos “understood that he was pleading

guilty to count two of the Complaint.”

Valdavinos’ citations to Vidal and Ruiz-Vidal do not

compel a different result. In those cases, we held the

charging documents, along with the other documents at issue,

were insufficient to establish that the prior convictions

satisfied the generically defined crimes. Specifically, the

defendant in Vidal was charged with “willfully and

unlawfully driv[ing] and tak[ing] a vehicle,” but the written

plea and waiver of rights form showed he pled guilty only to

“driving a stolen vehicle.” 504 F.3d at 1075. We concluded

the record in that case “fail[ed] to establish the factual

predicate for [the defendant’s] plea of guilty,” because it did

not contain a recitation of the factual basis for the defendant’s

plea, a plea hearing transcript, or a copy of the judgment of

conviction. Id. at 1087.

In Vidal, we further emphasized “[w]hen, as here, the

statute of conviction is overly inclusive, ‘without a charging

document that narrows the charge to generic limits, the only

certainty of a generic finding lies . . . in the defendant’s own

admissions or accepted findings of fact confirming the factual

basis for a valid plea.’” Id. at 1088–89 (quoting Shepard,

544 U.S. at 25). Simply put, we did not have a record upon

which a determination could be made whether the defendant

had admitted facts establishing the requisite factual predicate

16 UNITED STATES V . VALDAVINOS-TORRES

to support finding the conviction was an aggravated felony.

That is in direct contrast to the case at hand, where the factual

basis for the underlying conviction to which Valdavinos pled

guilty unequivocally establishes the controlled substance at

issue was methamphetamine.

Notably, the Vidal court relied on United States v.

Snellenberger, 493 F.3d 1015 (9th Cir. 2007), for the

proposition that a minute order, even when read in

conjunction with the complaint, was insufficient to establish

the defendant’s conviction was for a crime of violence.

Vidal, 504 F.3d at 1087. That case, however, was overturned

by an en banc panel, which concluded “district courts may

rely on clerk minute orders . . . in applying the modified

categorical approach.” See Snellenberger, 548 F.3d at

701–02. The en banc Snellenberger decision was abrogated

recently by another en banc panel only to the extent that

Snellenberger held a guilty plea to a conjunctively phrased

information constitutes an admission of all allegations

contained therein. See Young v. Holder, — F.3d —, No. 11-

41304, 2012 WL 4074668, at *6–8 (9th Cir. Sept. 17, 2012)

(“[W]hen either ‘A’ or ‘B’ could support a conviction, a

defendant who pleads guilty to a charging document alleging

‘A and B’ admits only ‘A’ or ‘B.’”).

Similarly, in Ruiz-Vidal, the charging document identified

the drug at issue as methamphetamine, but the defendant did

not plead guilty to either of the crimes charged in that

document. 473 F.3d at 1079. Instead, the defendant pled

guilty to violating Cal. Health & Safety Code § 11377(a). Id.

Because the record contained no plea agreement or colloquy

that revealed the facts underlying the plea, a panel of this

Court concluded “there is simply no way for us to connect the

references to methamphetamine in the charging document

UNITED STATES V . VALDAVINOS-TORRES 17

with the conviction.” Id.; see also Martinez-Perez v.

Gonzales, 417 F.3d 1022, 1029 (9th Cir. 2005) (holding facts

in the information could not establish the defendant

committed an aggravated felony where defendant pled guilty

to a different offense from the one charged in the

information).

Here, there is a way to “connect the references” as

required by Ruiz-Vidal and there is no need to “speculate as

to the nature of the substance.” 473 F.3d at 1079. Indeed, in

contrast to the defendants in Vidal and Ruiz-Vidal, three

different records confirm that Valdavinos was pleading guilty

to possession for sale of methamphetamine. In addition,

however, Valdavinos argues Young is dispositive here

because it adopted the maxim “allegations not necessary to be

proved for a conviction . . . are not admitted by a plea.” 2012

WL 4074668, at *7 (citation omitted). But Young does not

affect the outcome in this case, as the Complaint is not

conjunctively phrased. Further, Young applies the modified

categorical approach, and notes that the “record is

inconclusive under the modified categorical approach” when

the record consists “only of a charging document that

includes several theories of the crime, at least one of which

would not qualify as a predicate conviction.” Id. at *8. As

noted above, the record here consists of more than just the

charging document – three different records make clear

Valdavinos was pleading guilty to possession for sale of

methamphetamine. Therefore, his Section 11378 offense

qualifies as a deportable drug trafficking crime under Section

1101(a)(43)(B). See 8 U.S.C. § 1227(a)(2)(A)(iii).

Accordingly, Valdavinos was charged with a proper legal

basis for deportation.

18 UNITED STATES V . VALDAVINOS-TORRES

Valdavinos Was Not Denied the Right to Counsel

While the lion’s share of Valdavinos’ brief is devoted to

his argument regarding the modified categorical approach and

his Section 11378 conviction, only a footnote is devoted to

his argument that his due process rights were violated by the

denial of his right to counsel during removal proceedings.

“Although there is no Sixth Amendment right to counsel

in an immigration hearing, Congress has recognized it among

the rights stemming from the Fifth Amendment guarantee of

due process that adhere to individuals that are the subject of

removal proceedings.” Reyes-Bonilla, 671 F.3d at 1045

(quoting Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir.

2004)). In addition to the Due Process Clause, the right to

counsel in immigration proceedings is also secured by statute.

See 8 U.S.C. § 1228(b)(4)(B) (“[T]he alien shall have the

privilege of being represented (at no expense to the

government) by such counsel, authorized to practice in such

proceedings, as the alien shall choose.”); 8 C.F.R.

§ 238.1(b)(2)(i) (“The [Notice of Intent] shall advise that the

alien: has the privilege of being represented . . . in removal

proceedings.”); see also 8 C.F.R. § 238.1(b)(2)(iv) (requiring

ICE to provide aliens facing expedited removal “a list of

available free legal services programs”).

In this case, Valdavinos admits he was informed he had

the right to legal counsel at his own expense, but contends his

waiver was not “knowing and intelligent” because he waived

his right five days before he received “the document actually

explaining the right to representation, as well as the charges

and the intended method of removal.” According to

Valdavinos, the denial of counsel was prejudicial because an

attorney could have applied Ruiz-Vidal to defeat the basis for

UNITED STATES V . VALDAVINOS-TORRES 19

removal during his proceedings. This argument fails for two

reasons.

First, there is no evidence that Valdavinos requested and

was denied counsel after being notified of the basis for his

removal. Indeed, the record clearly indicates that Valdavinos

chose not to contest his deportation and did not want an

attorney. Nothing indicates Valdavinos later revoked his

waiver and requested counsel before his proceedings.

Second, even if Valdavinos established his removal

proceedings violated his due process right to counsel, he

cannot establish the prejudice required for a collateral attack

under Section 1326(d)(3).

To establish the requisite prejudice, Valdavinos needs to

“show that there were ‘plausible grounds’ on which he could

have been granted relief from removal in [2008].” Reyes-

Bonilla, 671 F.3d at 1049 (citing United States v. Ramos,

623 F.3d 672, 684 (9th Cir. 2010)). A plausible claim to

relief “requires some evidentiary basis on which relief could

have been granted, not merely a showing that some form of

immigration relief was theoretically possible.” Id. at

1049–50. Because his prior conviction under Section 11378

was for an aggravated felony, Valdavinos’ ability to obtain

immigration relief in 2008 was severely limited. See

generally United States v. Amador-Leal, 276 F.3d 511, 516

(9th Cir. 2002) (explaining it is “virtually certain that an

aggravated felon will be removed” in light of the

Antiterrorism and Effective Death Penalty Act of 1996 and

the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996). Indeed, 8 U.S.C. § 1182 clearly instructs that

aliens convicted of aggravated felonies, such as Valdavinos,

are ineligible for discretionary deportation relief. Moreover,

Valdavinos’ plea for relief under the voluntary departure

20 UNITED STATES V . VALDAVINOS-TORRES

statute is misguided, as that statute also excludes aliens who

have committed an aggravated felony. See 8 U.S.C.

§ 1229c(a)(1). In fact, due to his status as an aggravated

felon, the only form of immigration relief available to

Valdavinos in 2008 was a deferral of removal under the

Convention Against Torture (“CAT”). See 8 C.F.R.

§ 1208.17(a); see also Reyes-Bonilla, 671 F.3d at 1050.

However, there is neither evidence nor an allegation that CAT

applies in this case.

Accordingly, Valdavinos has not demonstrated a plausible

claim to relief from his 2008 removal order, and therefore

was not prejudiced by any alleged violation of his due process

right to counsel during removal proceedings.

Valdavinos Had No Available Relief

Valdavinos’ third alleged violation of his due process

rights fares no better. According to Valdavinos, he was

deprived of an opportunity to seek deportation relief.

However, as discussed above, Valdavinos had no plausible

claim to relief from deportation in 2008 and, as such, this

argument fails.

Because Valdavinos did not comply with the exhaustion

requirement under Section 1326(d)(1), he may not collaterally

attack his removal order.

UNITED STATES V . VALDAVINOS-TORRES 21

The District Court Properly Determined Valdavinos’

Section 11378 Conviction Was a Drug Trafficking Offense

Under Sentencing Guidelines Section 2L1.2(b)(1)(A)

Standard of Review

Whether Valdavinos’ 2007 conviction constitutes a drug

trafficking offense for purposes of U.S.S.G. § 2L1.2(b)(1)(A)

is a question of law this Court reviews de novo. See Vidal,

504 F.3d at 1076; United States v. Arellano-Torres, 303 F.3d

1173, 1176 (9th Cir. 2002); see also United States v.

Valle-Montalbo, 474 F.3d 1197, 1199 (9th Cir. 2007)

(holding the standard of review for a sentence enhancement

under Section 2L1.2 is de novo). The Government bears the

burden of proving the sixteen-level enhancement by clear and

convincing evidence. United States v. Bonilla-Montenegro,

331 F.3d 1047, 1050 (9th Cir. 2003).

Valdavinos’ 2007 Conviction Under Section 11378 is

Categorically a Drug Trafficking Offense Under

Section 2L1.2(b)(1)(A)

As previously discussed, under the categorical approach

set forth in Taylor, courts “look only to the fact of conviction

and the statutory definition of [a] prior offense” to determine

whether that prior offense can be used for a sentencing

enhancement under the federal Guidelines. Valle-Montalbo,

474 F.3d at 1200. If the state “statute criminalizes conduct

that would not constitute a drug trafficking offense under

federal sentencing law,” then a prior conviction under that

statute “does not categorically qualify as a basis for

enhancing [a] defendant’s sentence.” Id. (quoting United

States v. Morales-Perez, 467 F.3d 1219, 1221 (9th Cir.

2006)).

22 UNITED STATES V . VALDAVINOS-TORRES

Application note 1(B)(iv) to Guidelines Section 2L1.2

expressly defines a “drug trafficking offense” as “an offense

under federal, state, or local law that prohibits . . . the

possession of a controlled substance . . . with intent to

manufacture, import, export, distribute, or dispense.” As the

record shows, Valdavinos was convicted in 2007 for

possession of methamphetamine for sale in violation of

Section 11378 of the California Health & Safety Code. That

section states, in relevant part: “[E]very person who

possesses for sale any controlled substance which is . . .

specified in subdivisions (d), (e), or (f) . . . of Section 11055,

shall be punished by imprisonment in the state prison.”

Section 11055(d)(2) in turn lists methamphetamine as a

controlled substance. Therefore, as the court in

Valle-Montalbo held, “[i]t follows that under the Taylor

categorical approach, [a] prior conviction for violating Health

& Safety Code § 11378 is a drug trafficking offense under

§ 2L1.2.” 474 F.3d at 1201. Accordingly, the district court

properly applied the sixteen-level enhancement to

Valdavinos’ sentence for illegal re-entry.

Valdavinos’ 2007 Conviction Under Section 11378 is

a Drug Trafficking Offense for Section 2L1.2(b)(1)(A)

Purposes Under the Modified Categorical Approach

Even if Valdavinos’ Section 11378 conviction did not

satisfy Taylor’s categorical approach, it would qualify as a

“drug trafficking offense” for Section 2L1.2 purposes under

the modified categorical approach. As discussed in more

detail above, Count Two of Valdavinos’ Complaint indicates

he “unlawfully possessed for purpose of sale a controlled

substance, to wit, Methamphetamine.” Valdavinos’ plea

form, abstract of judgment, and plea colloquy minute entry all

show he pled guilty specifically to that Count. Taken

UNITED STATES V . VALDAVINOS-TORRES 23

together, these documents indicate, “with reasonable

certainty,” that Valdavinos was convicted of possession for

sale of methamphetamine in violation of Section 11378. See

Snellenberger, 548 F.3d at 701 (applying a “reasonable

certainty” standard under the modified categorical approach).

With the exception of the minute entry, Count Two and

Section 11378 are referenced in all documents in Valdavinos’

record of conviction, providing a sufficient link for this Court

to conclude that he pled guilty to possessing

methamphetamine for sale, which is referenced in the

Complaint. Methamphetamine is one of the drugs listed on

the federal controlled substances schedules, and therefore,

Valdavinos’ prior California conviction is a “drug trafficking

offense” as defined under Section 2L1.2(b)(1)(A). See

21 U.S.C. §§ 802(6), 812(a)(3) sched. III.

The District Court’s Imposition of Supervised Release

Was Reasonable

Standard of Review

This Court’s review of a sentencing decision is limited to

determining whether that decision was “reasonable.” United

States v. Amezcua-Vasquez, 567 F.3d 1050, 1053 (9th Cir.

2009) (citing Gall v. United States, 552 U.S. 38, 50–51

(2007)). In conducting this inquiry, the district court’s

decision is reviewed for abuse of discretion. Id. “[O]nly a

procedurally erroneous or substantively unreasonable

sentence will be set aside.” United States v. Carty, 520 F.3d

984, 993 (9th Cir. 2008) (en banc).

In reviewing a sentence, this Court first considers

“whether the district court committed significant procedural

error,” including an incorrect Guidelines determination. Id.

24 UNITED STATES V . VALDAVINOS-TORRES

(citing Gall, 552 U.S. at 51). Valdavinos, however, does not

assert his sentence is procedurally erroneous. This Court

therefore must proceed to the second consideration: whether,

in light of the 18 U.S.C. § 3553(a) factors, “the district court

abused its discretion by imposing a substantively

unreasonable sentence.” United States v. Crowe, 563 F.3d

969, 977 (9th Cir. 2009). The question here is whether the

district court’s imposition of supervised release was

unreasonable.

The District Court Reasonably Imposed Supervised

Release as Additional Deterrence

Under 18 U.S.C. § 3553(a)(4)(A)(ii), the district court

was required to apply the Guidelines version in effect on

December 9, 2011 – the date of Valdavinos’ sentencing.

Effective November 1, 2011, Guidelines Section 5D1.1 was

amended to add Subsection (c), which states that courts

“ordinarily should not impose a term of supervised release in

a case in which supervised release is not required by statute

and the defendant is a deportable alien who likely will be

deported after imprisonment.” However, Application note 5

to Section 5D1.1 specifically instructs that a court should

“consider imposing a term of supervised release on [a

deportable alien] if the court determines it would provide an

added measure of deterrence and protection based on the facts

and circumstances of [the] particular case.”

On appeal, Valdavinos argues that because the Guidelines

state supervised release should not “ordinarily” be imposed,

the district court’s decision to impose two years of supervised

release was substantively unreasonable. The Fifth Circuit

recently addressed and rejected a similar argument, and we

adopt that reasoning in rejecting the claim in this case. See

UNITED STATES V . VALDAVINOS-TORRES 25

United States v. Dominguez-Alvarado, — F.3d —, No.

11-41304, 2012 WL 3985136, at *3 (5th Cir. Sept. 12, 2012).

The court in Dominguez-Alvarado emphasized the

importance of giving meaning to all words in Section 5D1.1

to ensure none are rendered superfluous. Id. at *3. In doing

so, the court interpreted the Guidelines’ use of the word

“ordinarily” as advising courts that for most deportable

aliens, imposing a term of supervised release is unnecessary

as the deterrent and protective effect of supervised release is

served by the possibility of a future prosecution for illegal

re-entry, while still leaving the court discretion “of imposing

supervised release in uncommon cases where added

deterrence and protection are needed.” Id. In other words,

the court held the word “ordinarily” in Section 5D1.1 is not

mandatory. Id.

The court cautioned that “supervised release should not be

imposed absent a determination that supervised release would

provide an added measure of deterrence and protection based

on the facts and circumstances of a particular case.” Id.

Although the district court in Dominguez-Alvarado did not

focus on Section 5D1.1 in imposing a three-year term of

supervised release, the Fifth Circuit affirmed because the

district court stated, “I gave the sentence after looking at the

factors in 3553(a), to deter future criminal conduct, his

particular background and characteristics, which apparently

do not make him a welcome visitor in this country.” Id.

According to the court, such “particularized explanation and

concern [] justif[ied] imposition of a term of supervised

release.” Id.

As in Dominguez-Alvarado, the district court below gave

a specific and particularized explanation that supervised

26 UNITED STATES V . VALDAVINOS-TORRES

release would provide an added measure of deterrence and

protection based on the facts of Valdavinos’ case.

Specifically, the district court found:

Because you have family here and to make

sure that you understood we mean business in

this regard, I am going to impose supervised

release, finding the added deterrent value with

your family members here makes it a case that

is contrary to the recommendations of the

advisory Guidelines.

Valdavinos’ family ties to the United States provide a

legitimate basis for the district court’s findings. Indeed, as

Valdavinos admits, his sole reason for returning to the United

States was to be with his children and sick mother. In his

brief, Valdavinos asserts he has “extensive, close, family ties

to the country,” and argues such ties supported a plausible

ground for relief from removal in 2008. Valdavinos now

attempts to argue these same ties are “too thin” and do not

“rationally” support the need for supervised release.

Further, the district court varied from the Guidelines and

imposed a sentence of imprisonment 24 months below the

low end of the advisory Guidelines range. While the court

could have imposed a higher sentence as additional

deterrence, it chose to create additional deterrence by

imposing a two-year supervised release term. That was not

an abuse of discretion.

On a final note, the district court’s imposition of

supervised release was authorized by 18 U.S.C. § 3583(b)(2),

which permits a term of up to three years in this case. The

two-year term is also consistent with Guidelines Sections

UNITED STATES V . VALDAVINOS-TORRES 27

5D1.1(a) and 5D1.2(a)(2). Therefore, no departure analysis

is triggered.

In light of the district court’s particularized remarks at

sentencing, we hold Valdavinos’ two-year term of supervised

release is substantively reasonable.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of

the district court.