                                                                           FILED
                           NOT FOR PUBLICATION                             DEC 01 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50517

              Plaintiff - Appellee,              D.C. No. 3:12-cr-02723-MMA-1

  v.
                                                 MEMORANDUM*
ANTONIO GALARZA-BAUTISTA,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                    Michael M. Anello, District Judge, Presiding

                    Argued and Submitted November 21, 2014
                              Pasadena, California

Before: W. FLETCHER and BYBEE, Circuit Judges, and EZRA, District Judge.**

       Antonio Galarza-Bautista appeals his conviction under 8 U.S.C. § 1326.

Because any alien who is convicted of an aggravated felony at any time after

admission is ineligible for any relief from removal, 8 U.S.C. §§ 1227(a)(2)(A)(iii),


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
1228(b)(5), an underlying aggravated felony conviction dooms any claim for relief

based on a collateral attack of a predicate removal order in a prosecution for illegal

reentry under 8 U.S.C. § 1326. See, e.g., United States v. Garcia-Martinez, 228

F.3d 956, 963–64 (9th Cir. 2000). As relevant here, “aggravated felony” includes

“illicit trafficking in a controlled substance (as defined in section 802 of Title 21),

including a drug trafficking crime (as defined in section 924(c) of Title 18).” 8

U.S.C. § 1101(a)(43)(B).

      Galarza-Bautista was convicted under North Carolina General Statutes

Section 90-95(h)(3), which provides that “[a]ny person who sells, manufactures,

delivers, transports, or possesses 28 grams or more of cocaine . . . shall be guilty of

a felony, which felony shall be known as ‘trafficking in cocaine[.]’” This statute is

overbroad, as it covers simple possession, which is not a drug trafficking offense

within the meaning of 18 U.S.C. § 924(c) or a drug offense with a trafficking

element. See Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 918 (9th Cir. 2004).

However, it is divisible. By setting off alternative elements of the crime of

“trafficking in cocaine” with the disjunctive “or,” the text appears divisible on its

face. This reading is confirmed by the North Carolina courts, which have held that

subsection (h)(3) creates multiple, independent crimes. See State v. Wiggins, 648

S.E.2d 865, 872–74 (N.C. Ct. App. 2007) (analyzing the sufficiency of the


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evidence for charges under subsection (h)(3) for trafficking in cocaine under both

the possession and transportation alternatives); State v. Garcia, 433 S.E.2d 187,

190 (N.C. Ct. App. 1993) (holding that subsection (h)(3) creates “separate

trafficking offenses for which a defendant may be separately convicted and

punished”); cf. State v. Hartness, 391 S.E.2d 177, 179 (N.C. 1990) (holding that

subsection (h)(1), which covers marijuana trafficking crimes, enumerates “discrete

criminal offense[s]” for sale, manufacturing, delivery, transportation, and

possession).

      Because the statute is divisible, we apply the modified categorical approach.

Under that approach, we examine “the terms of the charging document”; “recorded

judicial acts of [the court of conviction] limiting convictions to the generic

category, as in giving instruction to the jury” or “formal rulings of law and findings

of fact”; and the “transcript of colloquy between [the] judge and [the] defendant in

which the factual basis for the plea was confirmed by the defendant.” Shepard v.

United States, 544 U.S. 13, 20, 26 (2005). Galarza-Bautista incurred two

convictions for violation of Section 90-95(h)(3) in October 2005 as the result of a

guilty plea. The indictment for one offense charged Galarza-Bautista with “selling

. . . 28 grams or more but less than 200 grams of cocaine” on June 5, 2003. The

plea colloquy demonstrates that both charges were based on the sale of more than


                                          -3-
28 grams of cocaine to the same undercover officer. Galarza-Bautista’s attorney

did not dispute the facts presented in the plea colloquy, and indeed confirmed that

his client’s motivation for the relevant conduct was “to make some quick money.”

It is clear based on the underlying documents that both convictions were under the

“sale” element of Section 90-95(h)(3). The sale of a controlled substance is a drug

trafficking crime for purposes of 8 U.S.C. § 1101(a)(43)(B). See Lopez v.

Gonzalez, 549 U.S. 47, 53 (2006); Rendon v. Mukasey, 520 F.3d 967, 975–76 (9th

Cir. 2008).

      Galarza-Bautista also claims that the court improperly imposed a 16-level

sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i). However, we have

established that selling a controlled substance qualifies as “distribution” under the

Sentencing Guidelines. See United States v. Almazan-Becerra, 537 F.3d 1094,

1099 (9th Cir. 2008).

      AFFIRMED.




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