                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                      No. 13-50306
             Plaintiff-Appellee,
                                                 D.C. No.
                   v.                      3:13-cr-00621-BEN-1

 EFRAIN HUITRON-ROCHA,
          Defendant-Appellant.                    OPINION


        Appeal from the United States District Court
           for the Southern District of California
         Roger T. Benitez, District Judge, Presiding

                    Argued and Submitted
            October 8, 2014—Pasadena, California

                    Filed November 7, 2014

       Before: David M. Ebel,* Andrew J. Kleinfeld,
           and Susan P. Graber, Circuit Judges.

                    Opinion by Judge Graber




  *
    The Honorable David M. Ebel, Senior Circuit Judge for the United
States Court of Appeals for the Tenth Circuit, sitting by designation.
2             UNITED STATES V. HUITRON-ROCHA

                           SUMMARY**


                           Criminal Law

    The panel affirmed a sentence for reentry after removal
and without permission, in violation of 8 U.S.C. § 1326, in a
case in which the district court, applying the modified
categorical approach, concluded that the defendant’s prior
conviction for possession and transportation of cocaine for
sale, in violation of California Health and Safety Code section
11352(a), was for a “drug trafficking offense” under U.S.S.G.
§ 2L1.2(b)(1)(A).

    The panel held that because there is no meaningful
distinction, for purposes of divisibility, between section
11352(a) and the California drug laws at issue in Coronado
v. Holder, 759 F.3d 977 (9th Cir. 2014) (§ 11377(a)), and
United States v. De La Torre-Jimenez, No. 13-50438 (9th Cir.
Nov. 7, 2014) (§ 11351), section 11352(a) is divisible and the
modified categorical approach applies. The panel rejected the
defendant’s argument that Rendon v. Holder, 764 F.3d 1077
(9th Cir. 2014), is to the contrary.


                             COUNSEL

Erick L. Guzman, Law Office of Erick L. Guzman, Santa
Rosa, California, for Defendant-Appellant.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              UNITED STATES V. HUITRON-ROCHA                          3

Alex W. Markle (argued), Special Assistant United States
Attorney, Bruce R. Castetter, Assistant United States
Attorney, Chief, Appellate Section, Criminal Division, and
Laura E. Duffy, United States Attorney, San Diego,
California, for Plaintiff-Appellee.


                             OPINION

GRABER, Circuit Judge:

    Defendant Efrain Huitron-Rocha appeals his 41-month
sentence following a guilty plea to one count of reentering the
United States after removal and without permission, in
violation of 8 U.S.C. § 1326(a). Applying the modified
categorical approach, the district court concluded that
Defendant’s prior conviction for possession and
transportation of cocaine for sale, in violation of California
Health and Safety Code section 11352(a), was for a “drug
trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A). On
appeal, Defendant argues for the first time that the district
court erred by using the modified categorical approach
because section 11352(a) is not a “divisible” statute within
the meaning of Descamps v. United States, 133 S. Ct. 2276
(2013). Whether we review de novo or for plain error, we
conclude that no error occurred. California Health and Safety
Code section 11352(a) is “divisible,” and the modified
categorical approach applies. Accordingly, we affirm.1


 1
    The government argues, in the alternative, that Defendant waived his
right to appeal. We assume, without deciding, that the appeal waiver is
not valid. See United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th
Cir. 2007) (en banc) (holding that an appeal waiver does not affect our
jurisdiction to hear an appeal).
4                 UNITED STATES V. HUITRON-ROCHA

    In Coronado v. Holder, 759 F.3d 977, 983–85 & n.4 (9th
Cir. 2014), we held that California Health and Safety Code
section 11377(a) is divisible within the meaning of
Descamps, because the statute contains a “listing of
alternative controlled substances” and because California law
confirms that the controlled substance is an essential element
of the crime. In an opinion filed concurrently with this one,
we hold that, because California Health and Safety Code
section 11351 is materially indistinguishable from section
11377(a), Coronado controls and the modified categorical
approach applies. United States v. De La Torre-Jimenez, No.
13-50438 (9th Cir. Nov. 7, 2014). There, we also reject the
defendant’s argument that our decision in Rendon v. Holder,
764 F.3d 1077 (9th Cir. 2014), is to the contrary. De La
Torre-Jimenez, slip op. at 7–9.

    The same reasoning applies with equal force to the statute
at issue here: California Health and Safety Code section
11352(a). Like sections 11351 and 11377(a), section
11352(a) covers a list of controlled substances2 and is
governed by the same general California law applicable to
sections 11351 and 11377(a). Because there is no meaningful

    2
        California Health and Safety Code section 11352(a) covers

             (1) any controlled substance specified in subdivision
             (b), (c), or (e), or paragraph (1) of subdivision (f) of
             Section 11054, specified in paragraph (14), (15), or (20)
             of subdivision (d) of Section 11054, or specified in
             subdivision (b) or (c) of Section 11055, or specified in
             subdivision (h) of Section 11056, or (2) any controlled
             substance classified in Schedule III, IV, or V which is
             a narcotic drug . . . .

See also De La Torre-Jimenez, slip op. at 7 n.1 (listing the substances
covered by sections 11351 and 11377(a)).
           UNITED STATES V. HUITRON-ROCHA                  5

distinction, for purposes of divisibility, between section
11352(a) and the California drug laws at issue in Coronado
and De La Torre-Jimenez, we hold that section 11352(a) is
divisible and that the modified categorical approach applies.
Defendant does not challenge the way in which the district
court analyzed the modified categorical approach, if the
statute is, as we hold, divisible.

   AFFIRMED.
