                                                                              FILED
                             NOT FOR PUBLICATION
                                                                               JUL 22 2016
                     UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                            No. 15-50092

               Plaintiff - Appellee,                 D.C. No. 3:14-cr-02304-DMS-1

 v.
                                                     MEMORANDUM*
LUIS ALEJANDRO RODRIGUEZ-MUNOZ,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                         Argued and Submitted July 8, 2016
                               Pasadena, California

Before: CLIFTON and FRIEDLAND, Circuit Judges, and CHEN,** District Judge.

      Defendant Luis Rodriguez-Munoz appeals the sentence imposed by the

district court for a violation of 8 U.S.C. § 1326, to which the district court, in

calculating the appropriate range under the advisory sentencing guidelines, applied

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
a 16-level enhancement based on Rodriguez’s prior conviction for a “drug

trafficking offense.” We affirm.

       We review de novo whether a prior conviction is a “drug trafficking offense”

under the guidelines. United States v. Jennen, 596 F.3d 594, 600 (9th Cir. 2010);

United States v. Jackson, 697 F.3d 1141, 1144 (9th Cir. 2012) (per curiam).

       Under the guidelines, a “drug trafficking offense” is “an offense under

federal, state, or local law that prohibits . . . the possession of a controlled

substance . . . with intent to manufacture, import, export, distribute, or dispense.”

U.S.S.G. § 2L1.2, cmt. n.1(B)(iv). A conviction for such an offense that resulted

in a sentence exceeding thirteen months provides the basis for a 16-level

enhancement. U.S.S.G. § 2L1.2(b)(1)(A)(i). A “controlled substance” for the

purposes of the Guidelines is a substance listed in the federal Controlled

Substances Act (“CSA”). United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th

Cir. 2012).

       Rodriguez was previously convicted for possession or purchase for sale of a

controlled substance in violation of California Health & Safety Code § 11351 and

received a two-year sentence. That statute is not a categorical match to the generic

federal “drug trafficking offense.” Leal-Vega, 680 F.3d at 1162 (holding that

section 11351 is broader than the CSA and is therefore not a categorical “drug

                                             2
trafficking offense” under the Guidelines); Ruiz-Vidal v. Gonzales, 473 F.3d 1072,

1078 (9th Cir. 2006) (finding no categorical fit because “California law regulates

the possession and sale of numerous substances that are not similarly regulated by

the CSA”). But Rodriguez concedes that section 11351 is divisible – thereby

waiving any contrary argument – so the modified categorical approach may be

applied. See United States v. Torre-Jimenez, 771 F.3d 1163, 1166-67 (9th Cir.

2014) (holding that section 11351 is divisible).

      Under the modified categorical approach, enquiry is limited to the elements

of the conviction and the “Shepard-approved” documents supporting the

enhancement. Descamps v. United States, 133 S. Ct. 2276, 2281-82 (2013);

Shepard v. United States, 544 U.S. 13, 26 (2005). An enhancement is

inappropriate if the link between the charging documents and the defendant’s plea

is unclear. But that is not the case here.

      The government has demonstrated that Rodriguez pled to possession of

heroin for sale based on the complaint, the change-of-plea form, the plea colloquy

transcript, and the docket sheet. We are not persuaded by Rodriguez’s arguments

that there were ambiguities in the record which required his plea to contain “as

charged in” language under United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir.

2007) (en banc).

                                             3
      There was no ambiguity because the documents supporting the

section 11351 conviction all linked Rodriguez’s guilty plea to “Count 1,” which

specified that the substance in question was heroin, a substance on the federal list.

The relevant definition of “Count 1” was provided in the complaint. See United

States v. Valdavinos-Torres, 704 F.3d 679, 689 (9th Cir. 2012) (holding that the

documents present in the record were sufficient to make clear that the defendant

pled guilty to possession of methamphetamine because they all referenced “Count

2,” which was defined in the complaint). The reference in the change of plea form

to dismissal of “all other counts/charges/allegations” did not alter Count 1 or its

identification of heroin as the substance in question. The additional allegation in

Count 1 of the complaint regarding drug quantity may have been dismissed, but

not the charge that Rodriguez “did unlawfully possess for sale and purchase for

sale a controlled substance, to wit, Heroin.”1

      AFFIRMED.




      1
        The government’s motion to supplement the record, filed August 11, 2015,
is denied as moot, as the government subsequently withdrew the appeal waiver
argument, and the appeal has been resolved on the merits.
                                        4
