                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 12 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-35674

                Plaintiff-Appellee,             D.C. Nos.    4:18-cv-05044-EFS
                                                             2:03-cr-06016-EFS-1
 v.

JOSE MANUEL AGUIRRE-GANCEDA,                    MEMORANDUM*

                Defendant-Appellant.

                   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.
                                                                               Page 2 of 4

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
                                                                            Page 3 of 4

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
                                                                          Page 4 of 4

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.
