                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 19 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-50615

              Plaintiff - Appellee,              D.C. No. 3:10-cr-01365-IEG

  v.
                                                 MEMORANDUM *
ALONSO CHAVEZ-GONZALEZ, etc.

              Defendant - Appellant.




                   Appeal from the United States District Court
                      for the Southern District of California
                 Irma E. Gonzalez, Chief District Judge, Presiding

                      Argued and Submitted October 11, 2011
                               Pasadena, California


Before: PREGERSON and D.W. NELSON, Circuit Judges, and LYNN, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                          1
      Appellant Alonso Chavez-Gonzalez (“Chavez”) appeals from the denial by

the district court of his Motion to Dismiss the Indictment. The Indictment charged

Chavez under 8 U.S.C. § 1326(a) and (b) with being a deported alien, previously

removed to Mexico, who was later found in the United States without permission.

Chavez argues that the Indictment should have been dismissed because two orders

removing him, in 2000 and 2005, were invalid, since they were based on the

erroneous conclusion by immigration officials that his prior conviction of

possession for sale of a controlled substance under California Health and Safety

Code § 11351 was for a substance listed in the federal Controlled Substances Act,

and an aggravated felony. Chavez claims the record does not establish that the

controlled substance at issue in his prior conviction was cocaine.


      Chavez entered a conditional guilty plea to the Indictment, retaining the

right to appeal the denial of the Motion to Dismiss. We have jurisdiction pursuant

to 28 U.S.C. § 1291.




       **
             The Honorable Barbara M. G. Lynn, District Judge for the U.S.
District Court for Northern Texas, Dallas, sitting by designation.



                                          2
      We review the denial of a Motion to Dismiss an Indictment de novo “when

the motion is based upon an alleged due process defect in the underlying

deportation proceeding.” United States v. Camacho-Lopez, 450 F.3d 928, 929 (9th

Cir. 2006)(citations omitted). We review the District Court’s factual findings for

clear error. Id.


      This Court has held that in a criminal prosecution under 8 U.S.C. § 1326, the

Fifth Amendment “requires a meaningful opportunity for judicial review of the

underlying deportation.” United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th

Cir. 2001)(citations omitted). Therefore, an underlying deportation may be

collaterally attacked in a criminal proceeding.


      The district court correctly applied the modified categorical approach to

evaluate the underlying conviction. Here, the judicially noticeable documents

include the criminal information, the abstract of judgment, the minute order, and

the transcript of Chavez’s plea hearing.


      Count 1 of the state court criminal information, to which Chavez pled no

contest, charged Chavez with possession for sale of “a controlled substance, to wit,

cocaine.” The abstract of judgment reflected a conviction for possession of a

controlled substance for sale. The minute order indicated that Chavez pled nolo


                                           3
contendere to Count 1. The transcript of the plea hearing before the trial court

connects these documents. The transcript demonstrates that in response to the

prosecutor’s description of the charge as possession for sale of a controlled

substance, “in this case cocaine,” Chavez pleaded “no contest,” which he expressly

acknowledged knowing was the same as a guilty plea. Under the modified

categorical approach, these documents in the record of conviction demonstrate that

Chavez was convicted of possession for sale of cocaine. These documents also

corroborate an admission Chavez made to the Immigration Judge during the

pleading stage of his 2000 hearing, and that admission can be used by an

Immigration Judge to find removability. Perez-Mejia v. Holder, --- F.3d ----, 2011

WL 5865888 (9th Cir. 2011). All of these documents were properly considered by

the district court, and are sufficient to demonstrate that Chavez was convicted of

possession for sale of cocaine, a substance listed in the federal Controlled

Substances Act, and an aggravated felony.


      Chavez argues that he did not admit the factual basis of his conviction by

pleading no contest, and, therefore, he claims his admission during the state court

plea hearing cannot be relied upon to demonstrate that the substance involved was

cocaine. However, whether or not Chavez admitted to committing the crime is not

the relevant inquiry for removal of him as an aggravated felon; for purposes of

                                          4
establishing removability under immigration law, the record must demonstrate that

“the defendant was in fact convicted of a crime that met the definition of aggravated

felony.” Sandoval-Lua v. Gonzalez, 499 F.3d 1121, 1129 (9th Cir. 2007)(internal

citation and quotations omitted)(emphasis added). As discussed above, an analysis

of the record under the modified categorical approach makes clear that Chavez’s

conviction was for possession of cocaine, as charged in the information. Therefore,

he was subject to removal.


      In United States v. Smith, this Court used the modified categorical approach

in examining a sentence enhancement under the Armed Career Criminal Act.

United States v. Smith, 390 F.3d 661 (9th Cir. 2004). In Smith, the defendant

pleaded nolo contendere to a burglary charge, and this Court looked at the transcript

of the plea colloquy to determine the facts of the offense, as described by the

prosecutor at the hearing, and to which the defendant pled nolo contendere. This

Court reasoned that when a defendant pleads nolo contendere, each factual

allegation to which a defendant pleads is taken as true for purposes of an analysis

under the modified categorical approach. Smith, 390 F.3d at 665-66 (citing United

States v. Williams, 47 F.3d 993, 995 (9th Cir.1995)). As in Smith, in this case

Chavez pleaded no contest to specific facts that the prosecutor stated during the

hearing, namely that the charge of possession for sale of a controlled substance was

                                          5
“in this case cocaine.” Under Smith, this Court must accept that fact as true when

conducting its analysis under the modified categorical approach, regardless of the

fact that Chavez’s plea was nolo contendere instead of guilty.


      The facts shown by the record demonstrate that the substance which Chavez

admitted to possessing for sale was cocaine. In addition to the proof in the record

of his conviction, during the pleading stage of the 2000 removal proceeding,

Chavez admitted that he was convicted of possession for sale of cocaine, as alleged

in the Notice to Appear. The second removal proceeding, in 2005, was based on the

2000 proceeding. Under Perez-Mejia and Pagayon v. Holder, --- F.3d ----, 2011

WL 6091276 (9th Cir. 2011), Chavez’s admission before the Immigration Judge at

the pleading stage was properly considered under the modified categorical approach

and further supports the district court’s decision. Thus, the district court properly

denied Chavez’s Motion to Dismiss the Indictment.


      AFFIRMED.




                                           6
