Galindo-Vega v. USA

Filing 7

ORDER Denying Motion for Certificate of Appealability (re Doc. No. 38 in Criminal Case No. 14cr341-AJB) as to Lorenzo Galindo-Vega (1). Signed by Judge Anthony J. Battaglia on 10/3/2016.(Copy sent to Defendant-Petitioner via CR case).(dls)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LORENZO GALINDO-VEGA,

Case Nos.: 16CV1405; 14CR0341
Petitioner,

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v.

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ORDER DENYING MOTION FOR
CERTIFICATE OF
APPEALABILITY

UNITED STATES OF AMERICA,

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Respondent.

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On August 11, 2016, the Court denied Petitioner’s motion to vacate, set aside, or

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correct sentence brought pursuant to 28 U.S.C. § 2255 based upon finding that the United

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States Sentencing Guidelines (“USSG”) is not unconstitutionally vague in its definition of

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“drug trafficking offense.” (Doc. No. 36.)1 On September 23, 2016, Petitioner filed the

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instant motion for certificate of appealability, arguing that reasonable jurists could debate

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whether his prior California controlled substance conviction qualifies as a predicate for

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enhancement under USSG § 2L1.2. (Doc. No. 38 at 6, 7.) For the following reasons, the

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Court DENIES Petitioner’s motion.

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Docket references are to the docket in 14CR0341. All pinpoint cites refer to the automatically
generated CMECF page numbers and not the numbers listed on the original document.
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16CV1405; 14CR0341

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When a district court enters a final order adverse to the applicant in a habeas

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proceeding, it must either issue or deny a certificate of appealability. See 28 U.S.C. §

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2253(c)(1)(A). A certificate of appealability is required to appeal a final order in a habeas

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proceeding. See id. A certificate of appealability is appropriate only where the petitioner

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makes a “substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2);

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Miller-El v. Cockrell, 537 U.S. 322, 326 (2003). Under this standard, the petitioner must

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demonstrate that “reasonable jurists could debate whether… the petition should have been

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resolved in a different manner or that the issues presented were ‘adequate to deserve

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encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 474 (2000).

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The Court disagrees with Petitioner that reasonable jurists could find the USSG §

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2L1.2 to be so vague as not to encompass California Health and Safety Code § 11351 as a

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“drug trafficking offense.” A drug trafficking offense is defined as “an offense under

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federal, state, or local law that prohibits the manufacture, import, export, distribution, or

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dispensing of, or offer to sell a controlled substance (or counterfeit substance) or the

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possession of a controlled substance.” USSG § 2L1.2. Under the California Health and

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Safety Code § 11351 “every person who possesses for sale or purchases for purposes of

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sale (1) any controlled substance… or (2) any controlled substance classified in Schedule

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III, IV or V which is a narcotic drug shall be punished by imprisonment…”

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Using a “modified categorical analysis” approach, the Ninth Circuit has clearly

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established that heroin is a controlled substance under the Controlled Substance Act

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(“CSA”) and thus a heroin conviction qualifies as a “drug trafficking offense.” Gonzalez

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v. U.S., Nos. SA CV 13-0418-DOC, SA CR 11-0259-DOC, 2014 WL 683865, at *4 (C.D.

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Cal. Feb. 19, 2014); U.S. v. Leal-Vega, 680 F.3d 1160, 1167-68 (9th Cir. 2012); U.S. v.

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Avila-Rivera, 359 Fed.Appx. 841, 844 (9th Cir. 2009).

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Under the “modified categorical analysis” approach, the courts may not “look

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beyond the record of conviction itself to the particular facts underlying the conviction.”

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Fernandez-Ruiz v. Gonzalez, 468 F.3d 1159, 1164 (9th Cir. 2006). A court’s examination

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is limited to documents such as the “charging document, the terms of a plea agreement or
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16CV1405; 14CR0341

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transcript of colloquy between judge and defendant in which the factual basis for the plea

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was confirmed by the defendant, or to some comparable judicial record of this

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information.” Shepard v. United States, 544 U.S. 13, 13 (2005). The Ninth Circuit also held

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that it may consider documents of “equal reliability,” including, but not limited to, a clerk’s

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minute order. United States v. Snellenberg, 548 F.3d 699, 701 (9th Cir. 2008).

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The relevant documents in Petitioner’s case confirm that Petitioner’s prior

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conviction for violation of California Health and Safety Code § 11351 was a “drug

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trafficking offense” under USSG § 2L1.2. Petitioner was charged in the Superior Court of

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Los Angeles with the crime of “possession for sale… in violation of Health and Safety

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code Section 11351.5, a Felony…” (Doc. No. 21-3 at 3.) Moreover, the report also states

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that petitioner did “unlawfully possess for sale and purchase for sale a controlled substance,

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to wit, heroin.” (Id. at 2.) We hold that Petitioner’s charging documents, and reports read

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together are sufficient under the modified categorical approach to establish that Petitioner

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was in possession with the purpose of sale of heroin, a substance included in the CSA.

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Thus, his prior conviction constitutes a “drug trafficking offense” under USSG § 2L1.2,

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and a sixteen level enhancement should have been applied.2
CONCLUSION

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Based on the foregoing, the Court DENIES Petitioner’s motion for a certificate of

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appealability on the issue of whether California Health and Safety Code § 11351 is not

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considered a “drug trafficking offense” under the United States Sentencing Guidelines

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(“USSG”) § 2L1.2.

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IT IS SO ORDERED.

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Dated: October 3, 2016

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The Court also notes that the Petitioner was sentenced on the lower end of the guidelines. (Doc. No. 36
at 3.)
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16CV1405; 14CR0341