UNITED STATES v. BARRAZA (2018)

MEMORANDUM **

Eliazar Barraza appeals from the district court’s judgment and challenges his guilty-plea conviction and 72-month sentence for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Barraza first contends that the district court should have granted his motion to dismiss the indictment because California Health & Safety Code sections 11351 and 11377(a)—the statutes under which Barraza was convicted in 2008, leading to his initial removal from the United States—are not divisible. Our recent decisions in United States v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc), and United States v. Murillo-Alvarado, 876 F.3d 1022 (9th Cir. 2017), foreclose Barraza’s contention that section 11351 is indivisible. Barraza does not contend that his removal order was invalid even if section 11351 is divisible, see 8 U.S.C. §§ 1227(a)(2)(A)(iii), (a)(2)(B)(i); therefore, we need not reach his remaining contentions regarding the district court’s denial of his motion to dismiss the indictment.

Barraza next contends that his sentence is substantively unreasonable. The below-Guidelines sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including Barraza’s recent and extensive criminal history. See United States v. Valencia-Barragan, 608 F.3d 1103, 1108-09 (9th Cir. 2010).

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000), we remand to the district court with the instruction that it delete from the judgment the reference to 8 U.S.C. § 1326(b)(2).

AFFIRMED; REMANDED to correct the judgment.