                                                                                        FILED
                               NOT FOR PUBLICATION                                       JUN 06 2012

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



                               FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                             No. 11-50050

               Plaintiff – Appellee,                  D.C. No. CR-10-00330-PSG

  v.
                                                      MEMORANDUM*
ALFONSO ANORVE-VERDUZCO,

               Defendant – Appellant.


                      Appeal from the United States District Court
                         for the Central District of California
                       Philip Gutierrez, District Judge, Presiding

                          Argued and Submitted April 11, 2012
                                 Pasadena, California

Before: ANDREW J. KLEINFELD and MILAN D. SMITH, JR., Circuit Judges,
and ALGENON L. MARBLEY, District Judge.**

       Appellant Alfonso Anorve-Verduzco pled guilty to illegal reentry following

deportation in violation of 8 U.S.C. §§ 1326(a), (b)(1). At sentencing, the district

court found that Verduzco’s prior conviction for possession or purchase for sale of

designated controlled substances in violation of California Health and Safety Code



*This disposition is not appropriate for publication and is not precedent except as provided by
Ninth Circuit Rule 36-3.
**The Honorable Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.
section 11351, was a “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A)(i)

and imposed the 16-level enhancement prescribed in that section. Verduzco

appealed, arguing that the district court was correct when it ruled that his prior

California conviction did not categorically qualify as a “drug trafficking offense,”

but that it erred when it found that the prior California conviction qualified as a

“drug trafficking offense” under the modified categorical approach.

      We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742,

and review de novo a district court’s determination that a prior conviction qualifies

for a sentencing enhancement under U.S.S.G. § 2L1.2. United States v. Valle-

Montalbo, 474 F.3d 1197, 1199 (9th Cir. 2007) (citing United States v. Villa-Lara,

451 F.3d 963, 964 (9th Cir. 2006)). For the following reasons, the district court’s

decision is affirmed.

      Courts considering whether a prior conviction is sufficient to trigger one of

the prior conviction enhancements under § 2L1.2 must begin with the categorical

approach set forth in Taylor v. United States, 495 U.S. 575 (1990). See, e.g.,

United States v. Benitez-Perez, 367 F.3d 1200, 1203 (9th Cir. 2004) (explaining

that to determine whether a prior conviction qualifies as a predicate offense for the

16-level enhancement under § 2L1.2, the court must first apply Taylor’s

categorical approach); United States v. Pimentel-Flores, 339 F.3d 959, 96768 (9th


                                          -2-
Cir. 2003) (same). For the reasons articulated in United States v. Leal-Vega, No.

11-50065,1 we hold that a conviction for possession or purchase for sale of

designated controlled substances under California Health and Safety Code

section 11351 does not categorically qualify as a “drug trafficking offense” under

U.S.S.G. § 2L1.2(b)(1)(A)(i).

       Turning to the modified categorical approach, Count Four of the Information

charging Verduzco indicates that he “unlawfully possess[ed] for sale and

purchase[d] for sale a controlled substance, to wit, cocaine” under California

Health and Safety Code section 11351, (ER 6), and the Abstract of Judgment

indicates that Verduzco pleaded guilty to Count Four for “Poss narc crtl subs for

sale” under code “HS,” section number “11351,” (ER 7). Taken together, these

documents indicate, “with reasonable certainty,” that Verduzco was convicted of

possession or purchase for sale of a cocaine under California Health and Safety

Code section 11351. See United States v. Snellenberger, 548 F.3d 699, 701 (9th

Cir. 2008) (en banc) (applying a “reasonable certainty” standard under the

modified categorical approach). Count Four and section 11351 of the California

Health and Safety Code are referenced in both documents, providing a sufficient

link between the documents for us to conclude that Verduzco pled guilty to

possessing or purchasing for sale cocaine, which is referenced in the Information.
1
 Verduzco and Leal-Vega are related cases that were argued in front of us on the same day.

                                              -3-
Cocaine is one of the drugs listed on the federal Controlled Substances Act

(“CSA”) schedules, and accordingly, Verduzco’s prior California conviction is a

“drug trafficking offense” as defined under U.S.S.G. § 2L1.2(b)(1)(A)(i).

      Verduzco offers three rationales to support his contention that the district

court erred when it held that his prior California conviction qualified as a “drug

trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A)(i) under the modified

categorical approach. First, in United States v. Vidal, 504 F.3d 1072, 1087 (9th

Cir. 2007) (en banc), we held that a charging document is sufficient to establish a

prior conviction if the judgment explicitly indicates that the defendant pled guilty

or was found guilty “as charged in the information,” and those magic words were

not present on Verduzco’s Abstract of Judgment. We, however, decline to read

Vidal’s holding so broadly and find our reasoning in our more recent en banc

decision, Snellenberger, persuasive. Snellenberger, 548 F.3d at 701 (relying on

count one of an information and a minute order stating that the defendant pleaded

nolo contendere to “count[] 1” to conclude the defendant’s conviction was a

generic burglary within the meaning of Taylor, even though the minute order did

not contain the words “as charged in the information”).

      Second, Verduzco contends that the district court erred when it found that

the word “narc” in the Abstract of Judgment sufficiently narrows the offense


                                         -4-
because the California definition of “narcotics” includes only substances that are

also found in the CSA schedules. Third, Verduzco asserts that there can be no

certainty as to why the word “narc” rather than “cocaine” was used in the Abstract

of Judgment and this ambiguity forces us to “read[] between the lines,” which we

should not do under the modified categorical approach. See United States v.

Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004). We decline to reach these

issues because it is clear from the record before us that the drug at issue in

Verduzco’s conviction was cocaine.

      Finally, we must address the Request for Judicial Notice that the

Government filed simultaneously with its Answering Brief, inviting us to take

judicial notice of Verduzco’s Plea Colloquy Transcript from his prior California

cocaine-trafficking case. It is unnecessary for us to take judicial notice of the Plea

Colloquy Transcript because the Information and Abstract of Judgment sufficiently

demonstrate Verduzco’s prior California conviction under the modified categorical

approach. Even if judicial notice were necessary, however, there was no

justification for the Government to have failed to present the Plea Colloquy

Transcript to the district court in the first instance, and we decline to take judicial

notice of facts that were not before the district court. Flick v. Liberty Mut. Fire Ins.

Co., 205 F.3d 386, 392 n.7 (9th Cir. 2000) (“It is rarely appropriate for an appellate


                                           -5-
court to take judicial notice of facts that were not before the district court.”); see

Reina Rodriquez v. United States, 655 F.3d 1182, 1193 (9th Cir. 2011) (“Appellate

courts are not sentencing courts.”).

      AFFIRMED.




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