DURAN ISORDIA v. BARR (2020)

MEMORANDUM **

Duran Isordia argues the Board erred in finding he committed a removable offense because the statute of conviction, California Health and Safety Code § 11379(a), is overbroad under Mathis v. United States, ––– U.S. ––––, 136 S. Ct. 2243, 195 L.Ed.2d 604 (2016). This is incorrect. This Court held in United States v. Barragan that Section 11379 is a divisible statute as to the controlled substance involved in the offense. 871 F.3d 689, 715 (9th Cir. 2017).

To determine which element of Section 11379 Duran Isordia was convicted of, we may under the modified categorical approach, as described in United States v. Torre-Jimenez, 771 F.3d 1163, 1167 (9th Cir. 2014), consider the complaint, abstract of judgment, and docket sheet that were submitted in this case. They established that the offense was selling, transporting, or offering to sell methamphetamine, which is within the coverage of the Federal Controlled Substance Act, as we held in United States v. Rodriguez-Gamboa, 972 F.3d 1148 (9th Cir. 2020). Duran Isordia's argument about solicitation was not raised before the Board and is in any event foreclosed by Mielewczyk v. Holder, 575 F.3d 992, 996–98, 996 n.1 (9th Cir. 2009).

The words “as charged” are not necessary to establish the crime to which Duran Isordia pleaded “when the record is clear,” Torre-Jimenez, 771 F.3d at 1168–69, as it is in this case.

The petition for review is DENIED.