                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 23 2014

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



                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 13-50344

              Plaintiff - Appellee,              D.C. No. 3:13-cr-00512-LAB-1

  v.
                                                 MEMORANDUM*
JAMES PERRY,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                     Argued and Submitted December 8, 2014
                              Pasadena, California

Before: GRABER, GOULD, and CALLAHAN, Circuit Judges.

       Defendant James Perry timely appeals his sentence of 85 months’

imprisonment following his guilty plea to importing cocaine into the United States,

in violation of 21 U.S.C. § 952. Reviewing de novo the district court’s

determination that Defendant qualifies as a "career offender" under U.S.S.G.

§ 4B1.1(a), we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1. Title 35 Pennsylvania Consolidated Statutes section 780-113(a)(30) is a

divisible statute within the meaning of Descamps v. United States, 133 S. Ct. 2276

(2013). United States v. Abbott, 748 F.3d 154, 158–59 (3d Cir. 2014). The cases

cited by Defendant are not to the contrary. See, e.g., Commonwealth v. Davis, 454

A.2d 612, 613 (Pa. Super. Ct. 1982) ("Appellant was charged with possession of

heroin. This offense requires proof that the substance was in the possession of the

appellant and that it was heroin." (emphases added)). Accordingly, we apply the

modified categorical approach. Medina-Lara v. Holder, 771 F.3d 1106, 1112 (9th

Cir. 2014).

      2. The district court correctly concluded that, under the modified categorical

approach, Defendant "has at least two prior felony convictions of . . . a controlled

substance offense." U.S.S.G. § 4B1.1(a)(3). Defendant was convicted of violating

section 780-113(a)(30) in both 1999 and 2001, and both convictions involved a

federally controlled substance. Unlike in cases such as Medina-Lara, 771 F.3d at

1113–15, the relevant documents here are not ambiguous as to the controlled

substance. Finally, Defendant’s legal arguments are foreclosed by precedent. See

United States v. De La Torre-Jimenez, 771 F.3d 1163, 1168–69 (9th Cir. 2014)

(rejecting Defendant’s interpretation of United States v. Vidal, 504 F.3d 1072,

1087 (9th Cir. 2007) (en banc)); United States v. Valdavinos-Torres, 704 F.3d 679,


                                          2
689 (9th Cir. 2012) (rejecting Defendant’s interpretation of Young v. Holder, 697

F.3d 976 (9th Cir. 2012) (en banc)), cert. denied, 134 S. Ct. 1873 (2014).

      AFFIRMED.




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