                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 14-50315
           Plaintiff-Appellee,
                                         D.C. No.
              v.                   3:13-cr-03254-BTM-1

DAVID ROSALES-AGUILAR,
        Defendant-Appellant.               OPINION


     Appeal from the United States District Court
         for the Southern District of California
  Barry T. Moskowitz, Chief District Judge, Presiding

               Argued and Submitted
       September 1, 2015—Pasadena, California

                   Filed April 12, 2016

    Before: Alex Kozinski, Diarmuid F. O’Scannlain
            and Jay S. Bybee, Circuit Judges.

              Opinion by Judge Kozinski
2           UNITED STATES V. ROSALES-AGUILAR

                           SUMMARY*


                          Criminal Law

    The panel affirmed a conviction on two counts of
attempted illegal reentry, and stayed further proceedings
pending a Supreme Court decision on a sentencing issue, in
a case in which the government impeached a defense expert
with statements that the defendant made voluntarily to Border
Patrol officers but that weren’t Miranda compliant.

    The panel held that the district court did not err by
admitting the statements to impeach the defendant’s account
of the events – that he lacked the specific intent necessary for
attempted illegal reentry because he was under the influence
of heroin and meth – on cross-examination of a defense
psychiatrist who testified that the defendant told him he had
no memory of going to the border or speaking with the agent.
The panel emphasized that it was not the psychiatrist’s
observations that were being impeached, but the defendant’s
perception, recollection and veracity that were being
impeached by the defendant’s own prior inconsistent
statements.

    The panel held that the district court didn’t err in denying
the defendant’s motion for judgment of acquittal. The panel
held that a jury could reasonably find (1) that the defendant
had taken a substantial step by crossing the border and
waiting in line for about an hour and a half to reach the
inspection station, and (2) that the defendant had the specific

  *
    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. ROSALES-AGUILAR                  3

intent to enter without the express consent of the Attorney
General. The panel rejected the defendant’s contention that
the second count was added by the prosecutor vindictively,
and held that the district court didn’t abuse its discretion by
denying an adverse-inference jury instruction relating to the
destruction of a port-of-entry video.

    Regarding the defendant’s challenge to the district court’s
assessment of a drug-trafficking offense enhancement
pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his 1998
conviction for sale of cocaine base under California Health
and Safety Code § 11352(a), the panel held that the version
of § 11352(a) under which the defendant was convicted does
not categorically qualify as a drug trafficking offense because
it permits a conviction for transportation of a controlled
substance for personal use. The panel deferred resolution of
whether § 11352(a) is divisible, thereby permitting
application of the modified categorical approach, pending the
Supreme Court’s decision in Mathis v. United States, No. 15-
6092.


                         COUNSEL

Kara Hartzler (argued), Federal Defenders of San Diego, Inc.,
San Diego, California, for Defendant-Appellant.

Laura E. Duffy, U.S. Attorney, Brandon James Kimura,
Special Assistant U.S. Attorney, Peter Ko, Assistant U.S.
Attorney Chief, Appellate Section Criminal Division, Colin
M. McDonald (argued), Assistant U.S. Attorney, San Diego,
California, for Plaintiff-Appellee.
4         UNITED STATES V. ROSALES-AGUILAR

                        OPINION

KOZINSKI, Circuit Judge:

    David Rosales-Aguilar was convicted under 8 U.S.C.
§ 1326 of two counts of attempted illegal reentry. At trial,
Rosales did not testify but he snuck in his recollection of
events by using an expert witness as a conduit for his own
words. The principal issue in this appeal is whether it was
proper to allow the government to impeach the expert with
statements that Rosales made voluntarily but that weren’t
Miranda compliant.

                         FACTS

    On June 21, 2013, Border Patrol Officer Moreno spotted
Rosales in the pedestrian entry line at San Ysidro.
“Disheveled” and “grungy,” Rosales “stood out” from the
crowd. Rosales told Moreno that he was going to Chula Vista
but didn’t have any entry documents. He also told Moreno
that he wasn’t a U.S. citizen. When Moreno asked Rosales
how he intended to enter the United States, Rosales replied
that he was “just going to walk through and they wouldn’t
stop him.” According to Moreno, it’s not unusual for
pedestrians to “make a break for it” once they arrive at the
front of the line.

    Moreno searched Rosales and found a syringe in his
pocket but didn’t ask whether Rosales was intoxicated.
Rosales was arrested and processed for expedited removal.
During this process, Rosales said he left Mexico “[t]o find
work and to live in the United States.” Because these
statements were not preceded by a Miranda warning, the
          UNITED STATES V. ROSALES-AGUILAR                 5

district court suppressed them but ruled they were voluntary
and could therefore be used for impeachment.

    Rosales was removed but three days later, on June 24,
Border Patrol officers found him in a bush approximately 300
yards north of the border. When arrested, Rosales was high
on methamphetamine and heroin.

    After conducting a field interview, the agents took
Rosales to a nearby station. Before interrogating him, the
agents read him his Miranda rights. As they did so,
Rosales—who “was, to some degree, under the influence of
heroin and methamphetamine”—was mumbling to himself
and nodding off. During this interrogation, Rosales admitted
that he had been previously removed and didn’t ask the U.S.
Attorney General for permission to reenter, that he climbed
over the border fence and that he was on his way to San
Diego. The district court suppressed Rosales’s statements
after viewing the videotape and finding that the waiver
“couldn’t have been [made] knowingly because he was
dozing off during part of it.” But, as with statements made
during his expedited removal on June 21, the court found that
these statements were made voluntarily. Thus, the court
concluded, “if [Rosales] takes the stand and he denies any of
the facts that are set forth in the sworn statement, the
government can impeach him with the sworn statement.”

    Rosales was charged with attempted reentry by a removed
alien in violation of 8 U.S.C. § 1326 based on the June 24
bush incident. This indictment was superseded by adding a
second count of attempted illegal reentry based on Rosales’s
June 21 appearance at the port of entry. Rosales was found
guilty on both counts.
6          UNITED STATES V. ROSALES-AGUILAR

    In calculating the Sentencing Guidelines range, the
district court applied a 16-level enhancement upon finding
that a 1998 conviction for sale of cocaine base under
California Health and Safety Code section 11352(a)—for
which Rosales was sentenced to three years in
prison—qualified as a drug trafficking offense under U.S.
Sentencing Guidelines section 2L1.2(b)(1)(A)(i). The court
calculated a Guidelines range of 84 to 105 months, but varied
the sentence down to 54 months.

                       DISCUSSION

    Rosales challenges the use of his suppressed statements
during the cross-examination of his expert witness. Rosales
also appeals the district court’s denial of his motion for
judgment of acquittal, denial of his motion to dismiss the
June 21 count for vindictive prosecution and rejection of an
adverse-inference jury instruction based on the routine
destruction of border security videos by the government.
Rosales also challenges the district court’s assessment of a
drug-trafficking offense enhancement.

                I. Impeachment Exception

    Before trial, Rosales filed a motion in limine to prevent
the government from using his suppressed statements for
purposes other than impeachment of his testimony at trial.
Rosales’s lawyer explained that he intended to call Dr.
Matthew Carroll, a psychiatrist who evaluated Rosales on two
occasions, as an expert witness. Dr. Carroll would testify that
Rosales told him he had no memory of going to the border or
speaking with the agent on June 21, and that Dr. Carroll
found this behavior consistent with an individual who is
under the influence of drugs. The court warned Rosales that
           UNITED STATES V. ROSALES-AGUILAR                    7

if he offered the hearsay statements—which the court deemed
admissible under Federal Rule of Evidence 803(4)—the
government would likely be able to impeach the declarant
with Rosales’s suppressed statements under Federal Rule of
Evidence 806.

    At trial, Rosales’s theory of the case was that he lacked
the specific intent necessary for attempted illegal reentry
because he was under the influence of heroin and meth.
Defense counsel asked Dr. Carroll to talk about his interview
with Rosales. Dr. Carroll testified that Rosales “says he
doesn’t remember anything [that occurred on June 21]. He
doesn’t remember going [to the port of entry]. He doesn’t
remember talking to anybody. He doesn’t remember it
happening at all.” And as to the June 24 incident, Dr. Carroll
testified, “[Rosales] has some memory about that incident.
What he remembers is being asleep in the bushes and all of a
sudden seeing Border Patrol agents, and he does remember
talking to them and then going to a hospital after that.” When
Dr. Carroll asked Rosales how he got there, Rosales said, “I
don’t know; I was just using; I don’t know what happened; I
don’t remember that night at all.” Dr. Carroll also testified
that Rosales told him that if the Border Patrol hadn’t found
him, he “would have walked back to Mexico.” The court
then allowed the government to use Rosales’s suppressed
statements in cross-examining Dr. Carroll.

    “Ever since its inception, the rule excluding evidence
seized in violation of the Fourth Amendment has been
recognized as a principal mode of discouraging lawless police
conduct . . . . [W]ithout it the constitutional guarantee against
unreasonable searches and seizures would be a mere ‘form of
words.’” Terry v. Ohio, 392 U.S. 1, 12 (1968) (quoting Mapp
v. Ohio, 367 U.S. 643, 655 (1961)). The Supreme Court,
8          UNITED STATES V. ROSALES-AGUILAR

however, “has carved out exceptions to the exclusionary rule
. . . where the introduction of reliable and probative evidence
would significantly further the truthseeking function of a
criminal trial and the likelihood that admissibility of such
evidence would encourage police misconduct is but a
‘speculative possibility.’” James v. Illinois, 493 U.S. 307,
311–12 (1990) (quoting Harris v. New York, 401 U.S. 222,
225 (1971)).

    One of these exceptions “permits prosecutors to introduce
illegally obtained evidence for the limited purpose of
impeaching the credibility of the defendant’s own testimony.”
Id. at 312. In Harris and Oregon v. Hass, 420 U.S. 714
(1975), the Court clarified that this exception “permit[s]
prosecutors to impeach defendants using incriminating yet
voluntary and reliable statements elicited in violation of
Miranda requirements.” James, 493 U.S. at 312.

    But the Court has refused to “[e]xpand[] the class of
impeachable witnesses from the defendant alone to all
defense witnesses.” Id. at 313 (emphasis added). In James,
one out of three boys fired a gun into a group of eight other
boys, “killing one boy and seriously injuring another.” Id. at
309. Five members of the larger group testified that the
shooter “had ‘reddish’ hair, worn shoulder length in a slicked-
backed ‘butter’ style.” Id. at 310. The evening after the
shooting, two detectives found Darryl James at his mother’s
beauty parlor. Id. at 309. After being arrested, James told the
detectives that he dyed and curled his hair “to change his
appearance.” Id. The trial court suppressed his statements
after finding that “the detectives lacked probable cause for his
warrantless arrest.” Id. James didn’t take the stand, but he
called as a witness a family friend who “testified that on the
day of the shooting she had taken James to register for high
           UNITED STATES V. ROSALES-AGUILAR                  9

school and that, at that time, his hair was black.” Id. at 310.
Over James’s objection, the trial court allowed the state to
impeach the witness with James’s prior statements to the
police. Id.

    The Supreme Court held that the state court erred in
allowing the prosecution to use the suppressed statements to
impeach the defense witness. Id. at 320. The Court reasoned
that the impeachment exception “penalizes defendants for
committing perjury by allowing the prosecution to expose
their perjury through impeachment using illegally obtained
evidence,” but “leaves defendants free to testify truthfully on
their own behalf.” Id. at 314. “The exception thus generally
discourages perjured testimony without discouraging truthful
testimony.” Id. The Court refused to expand “the
impeachment exception to encompass the testimony of all
defense witnesses” because it “would not have the same
beneficial effects.” Id.

    James is distinguishable. The witness there was testifying
as to her own perception and recollection. Id. at 310. In
contrast, the statements impeached here were not the
observations of Dr. Carroll as to Rosales’s activities on the
day he was arrested. Rather, they were Rosales’s account of
the events as communicated to Dr. Carroll, e.g., “[h]e would
have walked back to Mexico.” It was Rosales’s perception,
recollection and veracity that were being impeached by
Rosales’s own prior inconsistent statements.

    We see this case as much closer to Harris and Hass:
“The shield provided by Miranda cannot be perverted into a
license to use perjury by way of a defense, free from the risk
of confrontation with prior inconsistent utterances.” Harris,
401 U.S. at 226. Insofar as Rosales’s statements to Dr.
10         UNITED STATES V. ROSALES-AGUILAR

Carroll differ from the ones he made to the Border Patrol
officers, the inconsistencies cast doubt on his veracity, not Dr.
Carroll’s. They were thus properly admitted to impeach
Rosales’s account of the events under dispute. Because
Rosales does not challenge the district court’s finding that his
statements to the Border Patrol officers were voluntary and
reliable, the district court did not err by admitting these
statements.

  II. Motion for Judgment of Acquittal on the June 21
                       Count

    “Where a defendant moves for acquittal at the close of the
government’s evidence, we review de novo whether sufficient
evidence exists to support a guilty verdict.” United States v.
Stewart, 420 F.3d 1007, 1014 (9th Cir. 2005). In making this
review, “we assess the evidence in the light most favorable to
the prosecution, determining whether any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” Id. at 1014–15 (internal quotation marks
omitted).

    Attempted illegal reentry under 8 U.S.C. § 1326
“essentially requires two elements: (1) the specific intent to
reenter without consent; and (2) an overt act that was a
substantial step towards this illegal reentry.” United States v.
Leos-Maldonado, 302 F.3d 1061, 1063 (9th Cir. 2002).

    Rosales argues that his presence “in secondary screening,
standing alone, does not prove that he was attempting to
reenter the U.S. without permission.” United States v. Valdez-
Novoa, 780 F.3d 906, 923 (9th Cir. 2015) (as amended). But
a jury could reasonably find Rosales had taken a substantial
step by crossing the border and waiting in line for about an
             UNITED STATES V. ROSALES-AGUILAR                        11

hour and a half to reach the inspection station. There, he told
Officer Moreno that he was traveling to Chula Vista, even
though he had no entry documents and hoped “they wouldn’t
stop him.”

    The jury could also reasonably have found that Rosales
had the specific intent to enter “without the express consent
of the Attorney General.” United States v. Gracidas-
Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000) (en banc).1 In
early 2013, Rosales received written notice advising him that
he was “inadmissible,” and that “before commencing [his]
travel to the United States,” he had to first “obtain permission
from the Secretary of Homeland Security to reapply for
admission.” While a noncitizen who has been removed may
“request permission at a port of entry to reapply for
admission into the United States,” id. at 1194, the jury was
entitled to find that Rosales had no such intent, based on his
statements to Moreno. The district court thus didn’t err in
denying Rosales’s motion for judgment of acquittal on the
June 21 count.

                  III. Vindictive Prosecution

    Over defense counsel’s objection, the government took
Rosales’s fingerprint exemplars. Defense counsel reported to
the district court that the prosecutor had unlawfully taken
Rosales’s fingerprints without a court order, over counsel’s
objection and in violation of California’s rules of professional
conduct. On the same day Rosales moved to sanction the


 1
   In 2002, Congress transferred the authority to grant such consent from
the Attorney General to the Secretary of Homeland Security. See
Homeland Security Act of 2002, Pub. L. No. 107–296, §§ 402, 1517,
116 Stat. 2135, 2177–78, 2311 (2002) (codified at 6 U.S.C. §§ 202, 557).
12         UNITED STATES V. ROSALES-AGUILAR

prosecutor, the prosecutor added a second count of attempted
illegal reentry based on Rosales’s June 21 appearance at the
port of entry. Rosales moved to dismiss this second charge,
alleging that it was vindictively added by the prosecutor.

    “A prosecutor violates due process when he seeks
additional charges solely to punish a defendant for exercising
a constitutional or statutory right.” United States v. Gamez-
Orduño, 235 F.3d 453, 462 (9th Cir. 2000). The district court
found that the prosecutor submitted the superseding
indictment “before he had notice” that the defense was going
to move to sanction the prosecutor. The prosecutor therefore
couldn’t have been “seek[ing] . . . to punish [Rosales] for
exercising” his rights. Id.

               IV. Destruction of Evidence

    After the superseding indictment was filed, defense
counsel requested any port-of-entry video showing Rosales
at San Ysidro. But, by the time the prosecution had filed the
superseding indictment, the video (if there had ever been one
depicting Rosales) had already been destroyed as the
government routinely destroys San Ysidro port-of-entry
videos after 90 days. Rosales requested an adverse-inference
jury instruction based on the destruction of this video, which
the district court denied.

    “We review a district court’s refusal to give an adverse
inference instruction, when properly raised by the appellant,
for abuse of discretion.” United States v. Sivilla, 714 F.3d
1168, 1172 (9th Cir. 2013). Here, abuse of discretion is a
two-part test. Id. at 1173. First, we identify if the district
court applied the correct legal rule. Id. If it didn’t, then the
court abused its discretion. Id. Second, we determine
           UNITED STATES V. ROSALES-AGUILAR                 13

whether the court’s application of this legal rule was either
“(1) illogical, (2) implausible, or (3) without support” in the
record. Id.

    The district court correctly determined that, in deciding
whether to give a remedial jury instruction, “[c]ourts must
balance ‘the quality of the Government’s conduct’ against
‘the degree of prejudice to the accused,’ where the
government bears the burden of justifying its conduct and the
accused of demonstrating prejudice.” Id. (quoting United
States v. Loud Hawk, 628 F.2d 1139, 1152 (9th Cir. 1979) (en
banc) (Kennedy, J., concurring)). The prosecutor played no
role in the destruction of the videotape. But even if we were
to decide the prosecution played a role in the destruction of
the videotape by failing to bring the second charge more
promptly, there is no indication that “there was anything on
the video that in any way would be helpful” to Rosales.
Therefore, the district court didn’t abuse its discretion by
denying an adverse-inference jury instruction relating to the
destruction of the port-of-entry video.

               V. Sentencing Enhancement

    The crime of attempted illegal reentry carries a base
offense level of 8 under U.S. Sentencing Guidelines section
2L1.2(a). A court may increase this base by 16 levels if a
defendant “has a prior conviction for a ‘drug trafficking
offense,’ and the sentence on the prior conviction exceeded
thirteen months.” United States v. Leal-Vega, 680 F.3d 1160,
1163 (9th Cir. 2012) (quoting U.S.S.G. § 2L1.2(b)(1)(A)(i)).
Rosales argues that his 1998 conviction for violating
California Health and Safety Code section 11352(a) is not a
“drug trafficking offense” under the Guidelines.
14         UNITED STATES V. ROSALES-AGUILAR

     To determine whether Rosales’s ’98 conviction is a “drug
trafficking offense,” we apply a three-step process. Almanza-
Arenas v. Lynch, 809 F.3d 515, 521 (9th Cir. 2015) (en banc).
First, “we compare the elements of the state offense to the
elements of the generic offense defined by federal law.”
Lopez-Valencia v. Lynch, 798 F.3d 863, 867 (9th Cir. 2015).
If “the elements of the state crime are the same as or narrower
than the elements of the federal offense, then the state crime
is a categorical match and every conviction under that statute
qualifies as [a drug trafficking offense].” Id. Second, if the
statute “criminalizes conduct that goes beyond the elements
of the federal offense,”—that is to say, if the statute is
“overbroad”—then we must determine whether the statute is
“divisible or indivisible.” Id. at 867–68 (internal quotation
marks omitted). “If the statute is indivisible, ‘our inquiry
ends, because a conviction under an indivisible, overbroad
statute can never serve as a predicate offense.’” Id. at 868
(quoting Medina-Lara v. Holder, 771 F.3d 1106, 1112 (9th
Cir. 2014)). Third, if the statute is both overbroad and
divisible, we apply the “modified categorical approach.” Id.
“At this step, we may examine certain documents from the
defendant’s record of conviction to determine what elements
of the divisible statute he was convicted of violating.” Id.

    The Guidelines define “drug trafficking offense” as “an
offense under federal, state, or local law that prohibits the
manufacture, import, export, distribution, or dispensing of, or
offer to sell a controlled substance (or a counterfeit
substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import,
export, distribute, or dispense.” U.S.S.G. § 2L1.2 application
n.1(B)(iv). California Health and Safety Code section
11352(a) punishes any person “who transports, imports into
this state, sells, furnishes, administers, or gives away, or
             UNITED STATES V. ROSALES-AGUILAR                        15

offers to transport, import into this state, sell, furnish,
administer, or give away, or attempts to import into this state
or transport” certain controlled substances.

    The version of section 11352(a) under which Rosales was
convicted does not categorically qualify as a drug trafficking
offense because it permits a conviction for transportation of
a controlled substance for personal use. See People v. Cortez,
212 Cal. Rptr. 692, 693 (Cal. Ct. App. 1985).2 “We have
identified transportation of a controlled substance for
personal use as outside the scope of the drug trafficking
enhancements.” United States v. Almazan-Becerra, 482 F.3d
1085, 1089 (9th Cir. 2007).3

   Rosales doesn’t challenge the district court’s analysis
under the modified categorical approach. Thus, the only
question before us is whether section 11352(a) is divisible.

    Recently, the Supreme Court granted certiorari in United
States v. Mathis, 786 F.3d 1068 (8th Cir. 2015). As described
by the government, the question presented in Mathis is
“[w]hether a court may employ the ‘modified categorical
approach’ . . . when a defendant has been convicted under a


 2
   In 2013, section 11352 was amended to provide that “transport” means
transport for sale. A.B. no. 721, 2013 Cal. Stat. ch. 504. We do not
address whether the amended statute would categorically qualify as a drug
trafficking offense with respect to the conduct it proscribes.
  3
   We have held that section 11352(a) is divisible with respect to drug
type, because the statute lists alternative controlled substances and
“because California law confirms that the controlled substance is an
essential element of the crime.” United States v. Huitron-Rocha, 771 F.3d
1183, 1184 (9th Cir. 2014). Huitron-Rocha didn’t address whether the act
element (i.e., transport vs. sell) is divisible.
16         UNITED STATES V. ROSALES-AGUILAR

state statute that sets out, in the alternative, several forms of
committing an offense, or whether instead the applicability of
the modified categorical approach depends on a state-law
inquiry into whether the alternative forms of the offense
represent ‘means’ or ‘elements.’” Brief for the United States
at I, Mathis v. United States, No. 15-6092, 2015 WL 9855126
(U.S. Dec. 17, 2015). A “deep and widespread” conflict
regarding what constitutes a divisible statute has developed
among our sister courts following Descamps v. United States,
133 S. Ct. 2276 (2013). Brief for the United States at 17. On
the one hand, the Sixth, Eighth and Tenth Circuits find a
statute listed in the alternative sufficient to trigger the
modified categorical approach analysis. United States v.
Ozier, 796 F.3d 597, 601–02 (6th Cir. 2015); United States v.
Trent, 767 F.3d 1046, 1058–61 (10th Cir. 2014); Mathis,
786 F.3d at 1075. We and the Fourth Circuit hold that to
apply the modified categorical approach a statute must list
“elements” in the alternative. Almanza-Arenas, 809 F.3d at
523; Omargharib v. Holder, 775 F.3d 192, 198–99 (4th Cir.
2014).

    We have struggled to determine how we apply this test of
divisibility. See Rendon v. Holder, 764 F.3d 1077 (9th Cir.
2014); Rendon v. Holder 782 F.3d 466, 467–73 (2015)
(dissentals); Almanza-Arenas, 809 F.3d at 528 (Owens, J.,
concurring) (“The only consistency in these cases is their
arbitrariness.”); Id. at 529 (Watford, J., concurring in the
judgment) (“I would overrule Rendon, as I think its approach
to divisibility analysis is inconsistent with the approach
required by Descamps.” (citation omitted)). But, despite the
dissonance, the Almanza-Arenas majority confirmed “that if
the elements of the crime are alternative to each other—not
the mode or means of proving an element of the crime—the
statute is divisible.” Id. at 523 (majority opinion).
           UNITED STATES V. ROSALES-AGUILAR                17

    Because the petition for certiorari granted in Mathis is
directly relevant to our resolution of Rosales’s challenge to
his sentence enhancement, we will defer the resolution of this
one issue pending the Supreme Court’s decision in Mathis.

                     *        *        *

    Conviction AFFIRMED. Future proceedings in this case
are stayed until further order by the court. No petition for
rehearing or petition for rehearing en banc may be filed until
this court files its disposition resolving the sentencing
question.
