United States of America v. Jose Manuel Aguirre-Ganceda

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE MANUEL AGUIRRE-GANCEDA,
Defendant-Appellant.
No. 18-35674
D.C. Nos. 4:18-cv-05044-EFS
2:03-cr-06016-EFS-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Submitted July 10, 2019**
Seattle, Washington
Before: BERZON and WATFORD, Circuit Judges, and ROTHSTEIN,*** District
Judge.
In 2004, the district court sentenced Jose Aguirre-Ganceda to a mandatory
term of life imprisonment for conspiring to distribute methamphetamine. 21
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Barbara Jacobs Rothstein, United States District Judge
for the Western District of Washington, sitting by designation.
FILED
JUL 12 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846 (2004). In 2017, Aguirre-Ganceda moved
to vacate his sentence on the ground that three of his four prior convictions can no
longer serve as “felony drug offense” predicates. 28 U.S.C. § 2255. The district
court denied this motion, a decision from which Aguirre-Ganceda now appeals.
Today, as in 2004, the term “felony drug offense” is defined as “an offense
that is punishable by imprisonment for more than one year under any law of the
United States or of a State or foreign country that prohibits or restricts conduct
relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant
substances.” 21 U.S.C. § 802(44). We use the categorical approach to determine
whether a conviction meets the elements of a felony drug offense. See United
States v. Ocampo-Estrada, 873 F.3d 661, 667 (9th Cir. 2017). By its plain text, the
federal definition contains two elements: first, the offense must be “punishable by
imprisonment for more than one year” under applicable law; and second, the
offense must “prohibit[ ] or restrict[ ] conduct relating to narcotic drugs,
marihuana, anabolic steroids, or depressant or stimulant substances.” § 802(44).
Aguirre-Ganceda’s motion can succeed only if he is correct as to all three
challenged convictions, since the mandatory life sentence can be sustained by two
convictions for a “felony drug offense.” § 841(b)(1)(A)(viii) (2004). In his reply
brief, Aguirre-Ganceda argued for the first time that the maximum allowable term
of imprisonment for his 2000 Washington conviction was 60 days under a

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mandatory sentencing range, not the five years authorized by statute. See United
States v. Valencia-Mendoza, 912 F.3d 1215, 1222–23 (9th Cir. 2019). We need
not decide whether Aguirre-Ganceda has forfeited this challenge because, even
assuming that his Washington conviction cannot serve as a predicate for his life
sentence, the other two convictions were for felony drug offenses. We accordingly
affirm.
1. Aguirre-Ganceda was convicted of violating California Health & Safety
Code § 11379(a) (1991), which encompasses “every person who transports,
imports into this state, sells, furnishes, administers, or gives away, or offers to
transport, import into this state, sell, furnish, administer, or give away, or attempts
to import into this state or transport any controlled substance” classified by the
State. Though Aguirre-Ganceda contends otherwise, this actus-reus element is not
overbroad. Each of acts listed in § 11379(a) is “conduct relating to” a controlled
substance. 21 U.S.C. § 802(44); see United States v. Rosales, 516 F.3d 749, 758
(9th Cir. 2008).
The controlled-substance element of § 11379(a) is overbroad but divisible.
See United States v. Barragan, 871 F.3d 689, 714–15 (9th Cir. 2017). Count 1 of
the felony complaint identified the controlled substance as methamphetamine, and
the abstract of judgment stated that Aguirre-Ganceda was convicted of Count 1.
Taken together, these two documents establish that the controlled substance

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underlying this conviction was methamphetamine. See United States v. Torre-
Jimenez, 771 F.3d 1163, 1169 (9th Cir. 2014). Methamphetamine is a “depressant
or stimulant substance[ ]” within the meaning of § 802(44). See Ocampo-Estrada,
873 F.3d at 666 n.1.
2. Aguirre-Ganceda’s conviction for possessing a controlled substance
under California Health & Safety Code § 11377(a) (1996) also qualifies as a felony
drug offense. As with § 11379(a), the controlled-substance element of § 11377(a)
is overbroad but divisible. See Coronado v. Holder, 759 F.3d 977, 984–85 (9th
Cir. 2014). Here, the record of conviction contains a felony complaint, a plea
agreement, and minute reports that together establish that Aguirre-Ganceda was
convicted of possessing methamphetamine. See United States v. Valdavinos-
Torres, 704 F.3d 679, 687–88 (9th Cir. 2012).
Aguirre-Ganceda also contends that this conviction does not satisfy the
definition of “felony drug offense” because it has since been reclassified by the
State of California as a misdemeanor. This contention is foreclosed by United
States v. Diaz, 838 F.3d 968, 972 (9th Cir. 2016). See also Burgess v. United
States, 553 U.S. 124, 126–27 (2008) (“A state drug offense punishable by more
than one year therefore qualifies as a ‘felony drug offense,’ even if state law
classifies the offense as a misdemeanor.”).
AFFIRMED.

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