United States v. Vega-Ortiz

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Petitioner appealed the district court’s denial of his motion to dismiss an information charging him with being found in the United States after removal, in violation of 8 U.S.C. 1326. Petitioner argued that his underlying deportation was invalid because his prior conviction for possession for sale of a controlled substance in violation of California Health & Safety Code 11378 was not an aggravated felony. The court concluded that petitioner's removal order was validly premised on his conviction for violating Section 11378 where the district court properly applied the categorical approach to section 11378 and petitioner's overbreadth arguments are unavailing. The court correctly concluded that although section 11378 was not categorically an aggravated felony, application of the modified categorical approach resulted in a determination that petitioner was indeed convicted of an aggravated felony. Petitioner’s reliance on the federal regulation excluding a particular product containing L-meth from inclusion in the federal schedules is not persuasive, because petitioner failed to show a “realistic probability” of prosecution for possession of the excluded product. The court also concluded, for the same reasons, that the district court correctly imposed a sentencing enhancement for drug trafficking. Accordingly, the court affirmed the criminal judgment and remanded for correction of the judgment. View "United States v. Vega-Ortiz" on Justia Law