United States of America v. Joel Luque-Rodriguez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOEL LUQUE-RODRIGUEZ,
Defendant-Appellant.
No. 16-50119
D.C. No.
3:15-cr-00808-BEN-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted March 7, 2019
Pasadena, California
Before: WARDLAW and BENNETT, Circuit Judges, and CARDONE,** District
Judge.
Joel Luque-Rodriguez challenges the district court’s denial of his motion to
dismiss an indictment for attempted illegal reentry in violation of 8 U.S.C. § 1326.
Specifically, Luque-Rodriguez argues that the underlying removal order, which
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
FILED
MAR 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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served as a predicate element of his § 1326 conviction, was invalid because his
conviction for manufacturing a controlled substance under California Health &
Safety Code § 11379.6(a) was not an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(B). “We review de novo the denial of a motion to dismiss an
indictment under 8 U.S.C. § 1326 when the motion is based on alleged due process
defects in an underlying deportation proceeding.” United States v. Alvarado-
Pineda, 774 F.3d 1198, 1201 (9th Cir. 2014). We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
1. The district court properly rejected Luque-Rodriguez’s argument that his
California conviction is not an aggravated felony because the intent element under
California law is broader than the intent element under the corresponding federal
law. Luque-Rodriguez’s argument fails to meet the “realistic probability” standard
because he does not present a real-life example demonstrating that § 11379.6(a)
would be applied in the overbroad manner he describes. See Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007).
2. Luque-Rodriguez’s remaining argument is that the district court erred in
finding that § 11379.6(a) is an aggravated felony because California law
criminalizes more types of methamphetamine than does federal law. We consider
this argument under the plain error standard of review because it was not raised
below. See Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights

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may be considered even though it was not brought to the court’s attention.”).
Because this argument raises a factual issue—whether geometric isomers of
methamphetamine exist—the district court’s purported error that turned on this
unresolved factual issue did not amount to plain error. See United States v. Zhou,
838 F.3d 1007, 1011 (9th Cir. 2016) (“[A]n error that hinges on a factual dispute is
not ‘obvious’ as required by the ‘plain error’ standard. . . . Accordingly, by the
time we determine that an issue hinges on a factual dispute, we have concluded
that any error is not ‘plain.’”).
The government’s motion to supplement the record (Dkt. 49) is denied as
moot.
AFFIRMED.

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