                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             AUG 03 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-50245

              Plaintiff-Appellant,               D.C. No.
                                                 2:14-cr-00661-DMG-1
 v.

SERGIO MARTINEZ,                                 MEMORANDUM*

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                      Dolly M. Gee, District Judge, Presiding

                       Argued and Submitted August 4, 2016
                               Pasadena, California

Before: REINHARDT, KOZINSKI, and WARDLAW, Circuit Judges.

      Sergio Martinez was charged with illegal reentry in violation of 8 U.S.C.

§ 1326(a), (b)(2) in November 2014. The district court dismissed the indictment

under 8 U.S.C. § 1326(d) on the ground that Martinez’s earlier removal was

fundamentally unfair because Martinez had not been advised during the



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
immigration proceedings that he could apply for voluntary departure instead of

being removed.

      1. The district court erred in dismissing Martinez’s indictment for illegal

reentry based on its conclusion that Martinez was prejudiced at his 2004 removal

hearing by the failure to inform him of his eligibility for voluntary departure. At

the time of Martinez’s removal hearing, he had two convictions for violating

California Health and Safety Code § 11378. A violation of Section 11378 is an

“aggravated felony,” United States v. Vega-Ortiz, 822 F.3d 1031, 1035-36 (9th Cir.

2016); see also 8 U.S.C. § 1101(a)(43)(B), and these convictions thus made

Martinez statutorily ineligible to receive voluntary departure, 8 U.S.C.

§ 1229c(a)(1). As a result, Martinez cannot prove prejudice because “an alien who

is statutorily barred from obtaining relief from removal cannot be prejudiced by an

IJ’s failure to inform him about the possibility of applying for such relief.” United

States v. Bustos-Ochoa, 704 F.3d 1053, 1057 (9th Cir. 2012).

      2. Martinez argues that the district court’s ruling can be affirmed on the

alternative ground that he was not removable as charged in 2004 because the

conviction cited in his Notice to Appear was not categorically a controlled

substance offense under Mathis v. United States, 136 S. Ct. 2243 (2016). This

argument is foreclosed by United States v. Martinez-Lopez, No. 14-50014, slip op.


                                          2
at 21 (9th Cir. July 28, 2017) (en banc), in which we held that California’s

controlled substance statutes are divisible with respect to the listed substances.

Because California Health & Safety Code § 11379 is divisible in this respect, the

panel may look at Martinez’s Shepard documents to determine whether he was

convicted of an offense that also constitutes a controlled substances offense under

the generic federal definition. See Mathis, 136 S. Ct. at 2249. The felony

complaint charging Martinez with a violation of Section 11379 states that Martinez

“did unlawfully transport methamphetamine.” Methamphetamine is criminalized

under the Controlled Substances Act, see 21 U.S.C. § 812, Schedule II(c),

Schedule III(a)(3), and Martinez’s offense thus fits within the federal statutory

definition of a controlled substances offense.

      Accordingly, the district court erred in dismissing the indictment. We

therefore REVERSE its decision and REMAND for further proceedings

consistent with this disposition.




                                           3
