USA v. Jorge Valdavinos-Torre

Filing

FILED OPINION (ALFRED T. GOODWIN, DIARMUID F. O'SCANNLAIN and JACK ZOUHARY) AFFIRMED. Judge: ATG , Judge: DFO , Judge: JZ Authoring. FILED AND ENTERED JUDGMENT. [8447814]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,
Plaintiff-Appellee,

No. 11-50529

v.

D.C. No.
3:11-cr-01286AJB-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.

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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.

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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 PlaintiffAppellee.
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

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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

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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 reentry. Specifically, Valdavinos had been ordered removed

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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 onecount 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 RuizVidal 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

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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

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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.

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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

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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.” VillavicencioBurrel, 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. ReyesBonilla, 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. UbaldoFigueroa, 364 F.3d 1042, 1048 (9th Cir. 2004).

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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

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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

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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 socalled “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 overinclusive. 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,

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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.

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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

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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. 1141304, 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

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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.

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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

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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].” ReyesBonilla, 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

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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.

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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)).

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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

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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.

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(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

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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

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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

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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.