F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

M A R I O M O D E S T O G O N Z A L E Z -C O R N , AKA Mario M. Gonz a lez , AKA Mario Modesto Gonz a lez

,

Defendant-Appellant

. N o. 13-50480

D.C. No. 2:13-cr-00120- G W -1

OPI NI ON

A ppeal from the United States District Court for the Central District of California Georg e H. W u, District J u d g e, Presiding

Arg ued and Submitted May 5, 2015—Pasadena, California

F iled J uly 17, 2015

B efore: Ray

mond C. F isher, Carlos T. B ea and Michelle T. F riedland, Circuit J udg es.

O pinion by

J udg e F isherU N I T E D S T A T E S V

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SUMMARY *

Crim inal Law

The pan el affirmed a c onviction for illeg ally reentering the United States after having been deported, in violation o f 8 U.S.C. § 1326(a).

The panel held that the d efendant’s prior conviction under the federal Controlled Substances A ct (CSA), for possessing marijuana with the intent to distribute, resulting in a sentence

ex c e eding one y ear, was for an ag g ravated felony u nd e r t h e I mmig r a tion and Nationality Act (I NA). The panel h eld that because the I

NA incorporates felony violations of the CSA into its definition o f “ag g ravated felony ,” and because the defendant was convicted of a felony v iolation of the CSA, his conviction qualifies as an ag g r avated felony o n its face. The
p a nel concluded that there is, according ly

, no need to compare the elements o f his conviction to the e l e m e n ts of a g eneric federal offense of p ossession with intent to distribute marijuana to deter m i n e i f his conviction was for an ag g r avated felony

, as set forth in Taylor v. United S tates , 495 U.S. 575 (1990), and Moncrieffe v. Holder

, 1 33 S. Ct. 1678 (2013). The panel ex plained that in the a ggr avated felony
contex t, the Taylor approach i s i ntended for cases in which the defendant (or petitioner, in the immig ration contex t) was convicted under a statutory scheme that is not directly incorporated into t h e I

NA, such as a c o nviction under state law.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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T h e p anel held that the district court did n ot err when i t instructed the jury that it could infer the d efendant’s alienag e from his prior deportation order in combination w i t h his admissions reg arding his alienag e.

COUNSEL

Kurt May er and Kathry

n A. Y oung ( a

r g ued), Deputy F ederal Public Defenders; Sean K. Kennedy

, F ederal Public Defender; Hilary Potashner, A cting F ederal Public Defender, L os Ang eles, California, for Defendant-Appellant.

Allison L

. W est fahl Kong (arg ued) and J amie A. L ang , Assistant United States A t t o r n ey s; Robert E. Dug dale, Assistant U nited States Attorney
, Chief, Criminal Division ; Stephanie Yonekura, Acting United States A t t orney , L os Ang eles, California, for Plaintiff-Appellee.

OP INION

F I SHER, Circuit J udg e :

Mario Modesto Gonz alez -Corn was conv icted by a federal jury of illeg ally r e e n t ering the United States a fter having b een deported, in violation of 8 U.S.C. § 1326(a). He appeals his conviction, arg uing h is deportation v iolated d ue process because the immi gr a t ion judg e (I J ) incorrectly determined he had previously been convicted of an aggr a v ated felony

, as defined b y the I mmig ration a nd Nationality A ct ( I

N A ), 8 U.S.C. § 1101(a)(43). He also contends the district court improperly i n s tructed the juryU N I T E D S T A T E S V

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about t he e vidence it c ould consider in determining his alienag e.

W e hold Gonz alez ’s prior c o n viction under the federal Controlled Substances Ac t ( CSA), 21 U.S.C. § 801 et seq. , for possessing marijuana with th e intent to distribute, resulting in a se n t ence ex ceeding one y e ar, was for an ag g r avated felony u nder the I NA. B ecause the I

N A in c o r porates felony violations of the CSA into its definition of “ag g ravated felony ,” and b ecause Gonz alez was convicted of a felony violation of the CSA, his conviction q u a lifies a s

an a ggr a v a t ed felony on its face. According ly

, there is no

n e e d to c ompare the e lements of his conviction to the elements o f a g eneric federal offense of possession with intent to d istribute marijuana to determine if h is conviction

was for an ag g ravated felony

, as set forth in Taylor v. United States
, 495 U.S. 5 75 ( 1990), and Moncrieffe v. Holder

, 133 S. Ct. 1 6 78 (2013). I n the ag g ravated felony contex t, the Taylor approach is intended for c ases in whic h the defendant (or petitioner, in the immig ration contex t) w a s convicted under

a statutory scheme that is not directly i ncorporated into the I NA, such as a conviction under state law.

W e also hold the district court did n o t e r r w hen it i n s t r u cted the jury on the evidence it could consider to determine alienag e. W e therefore affirm.

I. BACK G R OUND

Gonz a lez immig ra t e d t o the United States as a teenag er and later became a leg al permanent r e sident. I n 2 003 he p led
g ui l ty to possession with intent to distribute less than 50 k ilog rams of marijuana, in violation of 21 U.S.C. § 841(a), (b)(1)(D). He received a sentence of 15 months in prison.U N I T E D S T A T E S V

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After his c onviction, the g ov e rnment initiated removal proceeding s under a provision of the I NA aut h o riz ing the removal of nonci tiz e ns who have been “convicted of an ag g r avated felony at an y time a f ter admission.” 8 U .S.C. § 1227(a)(2)(A)(iii). The g overnment alleg ed Gonz alez h ad been c onvi c t e d o f “illicit trafficking in a controlled sub s t a n c e,” which is an ag g ravated felony under the I NA. See id. § 1101(a)(43)(B ). During removal proceeding s before the I J
, G o n z a l ez a dmitted h e was n o t a U.S. citiz en, his mother a nd father were not U.S. citiz ens, and he was a native and citiz e n of Mex ico. The immig ration judg e found h e was convicted of an ag g ravated felony and ordered him removed from the United States. He was deported in 2009.

Gonz a lez then returned to the United States without inspection and was discove r e d b y immig ration ag ents in J a n u a ry 2 013. He was charg ed in federal district court w i t h illeg al reentry under 8 U.S.C. § 132 6 ( a ) a n d (b)(2). He moved to dismiss the information under § 1326(d), alleg ing the illeg al reentry charg e was based on a d e p ortation order that was fundamentally unfair, in violation of his rig ht to d ue process under the F ifth Amendment. See 8 U.S.C. § 1326(d). Specifically

, he arg u e d t he immig ration judg e erred in determining his marijuana conviction was for an ag g ravated f e l o n y

. T he district court denied the motion. Gonz alez appeals that ruling

.

I n the ensuing trial, the g o vernment was required to prove Gonz a lez w as an alien at the time of the offense. See United States v. R uiz-Lopez
, 749 F

. 3 d 1138, 1141 (9th Cir. 2014). The g overnment’s evidence of alienag e included Gonz a lez ’s pri o r d e p ortation order, his prior statements that he was a native a nd citiz en of Mex ico and not of the United States, a nd his Mex ican photo identification and voter reg istration cards.U N I T E D S T A T E S V

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The parties disputed h o w the jury should b e instructed in considering this evidence.

Gonz a lez proposed three jury instructions on the subject: ( 1 ) t he jury may not rely on an I J ’s order of deportation t o determine w hether Gonz alez was a n alien, because he was not entitled to counsel in immig ration court and the g overnment had a lower burden o f p r oof there; (2) a n I J ’ s o r der o f deportation, by itself, is insufficient to establish alienag e; a nd (3) Gonz alez ’s prior admissions o f Mex ican c itiz enship were not suffici e n t , without more, to prove alienag e. The district
court rejected the f

ir s t instruction but said the second a nd third mig ht b e appropriate if combined. At the court’s request, the p a rties submitted a joint instruction combining the second and third instructions, a n d included an additional
statement that a defendant’s admissions o f foreig n c itiz e nship in combination with a deportation order or other corroborating

evidence may

establish alienag e.

The district court ultimately g a v e the jury a slig htly modified version of the jointly proposed instruction, without objection from the defense. The instruction stated:

The Government has presented evidence that Defenda nt was ordered removed by an i m m i g r a t i o n j u d g e i n a d e p o r t a t i o n proceeding

. An immig r ation judg e’s order o f deportation alone is insufficient as a matter o f law to establish defendant’s status as an alien. Similarly

, a d e fendant’s statement about his

c i t i z e n s h i p i s n o t s u f f i c i e n t , w i t h o u t independent corroborating evidence, to prove that h e i s an alien. H owever, a defendant’s admissions in combination with a p r iorU N I T E D S T A T E S V

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deportation order or o ther c orroborat ing evidence may

establish alienag e.

During deliberations, the jury submitted a note to the court asking two questions about the alienag e instruction:

(1) I s it enoug h that the g overnmen t considered [ G onz alez -] Corn an alien at the
t i m e h e entered the country for [ Gonz a lez

- ] Corn to be determined to be an alien?

(2) Does the w o rd may in the [ alienag e instruction] mean it does establish alienag e[ ? ]

The court responded to the first question by referring the jury to the lang uag e in the in s t ruction: “an immig r ation judg e’s order of de p o r t ation alone is insufficient a s a matter of law to establish a d efendant’s status as a n a l i en.” The

c o u r t f urther ex plained that if the only evidence the
g overnment offered on alienag e was the deportation order, that would not be enoug h. I n res p o nse to the second question, the court said “the word ‘may ’

. . . means that it

can establish or it cannot establish. I n other w ords, there’s a possibility

. I t’s up to th e jury to weig h the evidence a nd decide whether or n ot the d efendant’s a dmissions i n combination w i t h a prior deportation order or other corroborating

evidence may

establish alienag e.”

The nex t day the jury found Gonz alez gu i l t y

. W e have jurisdiction over this appeal under 28 U .S.C. § 1291, and we affirm.U N I T E D S T A T E S V

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II. STANDARD OF REVIEW

W e r eview de nov o t h e denial of a motion to dismiss a charg e for illeg al reentry based on a deportation order that is alleg ed to be fundamenta l l y u n f air. See United States v

. Sandoval-Orellana

, 714 F

. 3d 1174, 1 178 (9th Cir. 2013). W e also review de novo w h e ther a district court’s jury instructions stated the law c orrectly

. S e e Un i t ed S

tates v

. Spentz , 653 F .3d 815, 818 (9th Cir. 2011).

III. DISCUSSION

A. Aggravated F e lony Determ ination

“B ecause the underly ing removal or d e r serves as a predicate e lement o f [ a § 1 326 illeg al ree n t r y offense]

, a defendant charg ed with that offense may collater a lly attack the removal order under the d ue proc es s c l a use.” United States v

. Camacho-Lopez

, 4 50 F .3d 928, 930 ( 9th Cir. 2 006) ( a l t er a t i o n i n o r i g i n a l ) ( q u o t i n g U n i t e d S t a t e s v. Pallares-Galan

, 359 F .3d 1088, 1095 (9th Cir. 2004)). To do
so, a defendant must show: (1) he ex hausted any adm i n istrative remedies to appeal the order, (2) the deportation proceeding s deprived him of the opportunity for j udicial r eview, and ( 3 ) the e ntry of the order wa s fundamentally unfair. S

e e 8 U.S.C. § 1326(d). At issue in this a ppeal is the third element: whether Gonz a l e z ’s deportation was fundamentally unfair b e cause the I J incorrectly determined Gonz al e z ’ s prior conviction was for

an ag g ravated felony

. S

ee Camacho-Lopez

, 450 F .3d at 930. W e hold Gonz alez ’s c onviction was for an a g g ravated felony and his deportation order was therefore valid and not fundamentally

unfair.U N I T E D S T A T E S V

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The I NA authoriz es the removal o f noncitiz ens who have been “convicted of an ag g ravated felony at any time a fter admission.” 8 U

. S

. C

. § 1227(a)(2)(A)(iii). T h e term “ag g ravated felony ” includes “illicit trafficking i n a controlled substance (as d efin ed i n s ection 802 of Title 2 1), including a drug traffick i n g c r ime (as defined in section 924(c) of Title 18).” Id. § 1101(a)(43)(B ). Section 924(c), in turn, defines “drug

trafficking

crime” to include “any

felony punishable under the Control l e d Substances Act (21 U .S.C. 801 e t seq.).” 18 U.S.C. § 924(c)(2). A “ felony ” is classified

as an offense for which the “max imum term o f imprisonment auth o r i z e d” is “more than one y ear.” Id. § 3559(a)(5); see also Moncrieffe v. Holder

, 133 S. Ct. 1678, 1683 (2013). According ly

, under the plain lang uag e of these provisions, a conviction qualifies a s a

n a g g ravated felony when it is for “an offense that the Controlle d Substances Act (CSA) makes punishable by more t h a n one y ear’s imprisonment.” Moncrieffe

, 133 S. Ct. at 1683; see also Lope z v

. G onzales

, 549 U.S. 47, 56 & n.7 (2006) (interpreting “felony punishable under the [ CSA] ” a s a

n offense w hich is “defined as a felony by the CSA” (alteration in orig inal)).

Gonz a lez w as convicted o f a felony under the CSA. The judg ment of conviction lists his o ffense as “Possession W ith I ntent to Distribute L ess Than 50 K i l o g r ams of Marijuana,” corresponding to subsection 841(b)(1)(D) of t h e C S A

. See 21 U.S.C. § 841(b)(1)(D). Technically

, the CSA d efines the of f e n s e of possession with intent to d istribute a controlled substance at subsection 841(a ). Subsection (b)(1)(D) is a corresponding penalty provis ion that authoriz es up to five
y ears’ imprisonment when the c ontrolled s u bstance is marijuana and the q

uantity is less than 50 kilog rams. See id. The authoriz ation of up to five y e ars’ imprisonment m akes the offense a felony

. See 18 U .S.C. § 3559(a). However, theU N I T E D S T A T E S V

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CSA contains a misdem e anor e x ception to this penalty provision, listed in subsection 841(b)(4), t h at limits a defendant’s punishment to one y ear in prison if his offense involved a small amount of marijuana and n o remuneration. See 21 U.S.C. § 841(b)(4 )

. 1 The Supreme Court has h eld subsections ( b)(1)(D) and (b)(4) a re “dovetailing provisions [ that] create two mutually ex clusive categ ories of punishment for CSA marijuana distribution offenses: one a fel o n y , a nd one not.” Moncrieffe , 133 S. Ct. at 1686.

Gonz a lez ’s judg ment lists only subsection (b)(1)(D), not (b)(4). This sug g ests he w as convicted of a CSA felony

. His judg ment also r eveals he was sentenced to 1 5 months’ imprisonment, thu s e x ceeding the one-y ear max imum
sentence allowed under the misdeme a n or sentencing provision. I t is therefore c l e a r he was c onvicted of a felony under the CSA and the misdemeanor s e n t encing ex c eption did not ap p l y

. B e c ause the I NA incorporates felony violations o f the CSA into its definition of ag g ravated felony

, see id. at 1683; Lopez
, 549 U.S. at 55–56 & n.7, Gonz a lez ’s crime of conviction is, b y definitio n , an ag g ravated felony under the I

NA.

Gonz a lez rig htly points out that, with respect to some federal marijuana convictions, it may be impossible to tell from the face of the judg ment alone whether a d efendant was convicted of the CSA f

elony or the CSA misdemeanor. The

1 T h i s p ro v i sio n read s in f u ll: “ No tw ith stan d i n g p arag rap h (1 )(D) o f th is

su b sectio n , an y perso n w

h o v io lates su

bsectio n (a) o f th is sectio n b y d istrib u t i n g a sm all am o u n t of m arih u an a f

o r n o rem

u n eratio n sh all b e treated as p ro v id ed in s ectio n 8 4 4 o f th is title an d sectio n 3 6 07 o f T itle 1 8 .” 2 1 U.S.C. § 84 1 (b )(4 ). Sectio n 8 4 4
, in tu rn , p en alizes “sim p le
p o ssessio n ” w ith a term o f im p riso n m en t “ n o t m o re t

h an 1 y ear.” Id

. § 8 4 4 (a).U N I T E D S T A T E S V

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practical applicatio n o f subsections (b)(1)(D) and (b)(4)

ex p lains w hy

. Subsec tion (b)(1)(D) applies to possession with intent to distribute any amount of marijuana less than 50 kilog rams, no matter how small. See Moncrieffe , 133 S. Ct.
at 1688; United States v. Aguilera-Rios

, 769 F .3d 626, 636 (9th Cir. 2 014). The burden is on the defendant to p rove he
qua l i f ies for the misdemeanor sentencing ex ception under subsection (b)(4) by showin g his offense involved a small
amount and no remuneration. See Aguilera-Rios

, 769 F .3d at 636. B ut even when subsectio n ( b)(4) is applicable, some courts treat it as a sentencing factor and not as the offense o f

c o n v iction, meaning it may not appear in the judg men t

. Consequently

, a judg ment mig ht list e ither the allencompassing o f

fense subsection (a) or the penalty subsection (b)(1)(D), y et the sentence c oul d h a ve been for less than one y ear. I n such a case, the judg ment of conviction itself would not reveal whether the district cou r t actually applied the misdemeanor ex ception at sentencing

.

W e do not confront such uncertainty here, however, n or do we opine on how a reviewing court or immig ration judg e should resolve the ambig uity in s u c h a case. Not only does Gonz a lez ’s judg ment identify subsec t ion (b)(1)(D), without
any reference to the misdemeanor ex ception, it also reveals he

wa s s en tenced to a term of imprisonment ex ceeding the

max imum allowable under the misdemeanor provision. I t is therefore clear the sentencing judg e did not appl y the misdemeanor ex ception to Gonz alez

.

Even thoug h the I

NA incorporates Gonz alez ’s offense o f conviction, he contends we must eng ag e in the cate go r i cal approach und e r Taylor v. United States
, 495 U .S. 575, 60 0

– 02 (1990), and its prog eny , b y which we compare the elements of his offense o f c onviction to the elements of aU N I T E D S T A T E S V

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“g eneric” federal offense listed as an ag g ravated felony in the I NA. 2 Under this a

naly sis, “if the state statute of conviction criminaliz es more conduct than the federal g eneric offense, then the state offense is no t categ o rically included in the d e f i n i t i o n o f t h e f e d e r a l g e n e r i c o f f e n s e

. ” Rodriguez-Castellon v. Holder

, 733 F .3d 847, 853 (9t h Cir. 2013). I n such a case, the conviction would not categ orically be for a n ag g ravated f

elony

. Gonz a lez arg ues this is the approach required by Moncrieffe

.

I n Moncrieffe

, the Supreme Court ru l e d an immig r ation petitioner’s conviction under a Georg ia drug statute w as not for an ag g ravated felony under the I NA. See 1 3 3 S

. C t. at 1683–84. T o do so, the Court applied the categ orical approach to see wh e t her the Georg ia law “necessarily ” proscribed conduct punishable as a f e l o ny u n der the Controlled Substances Act. See id. at 1 6 8 5

. Apply ing the categ orical approach, the Court first determined what elements make up the g e n e r ic federal offense of f e lony marijuana possession with intent to distribute. Af ter noting subsections 841(b)(1)(D) a nd 841(b)(4) of the C S A c reate felony and misdemeanor categ orie s of punishment, respect i v e l y , the Court held the g eneric federal felony includes as an element the a bsence of the factors that mitig ate punishment to misdemeanor status in subsection ( b)(4). See

2 T a ylo r d ealt sp ecif

ically w ith w h e t h er a p rio r state co n v ictio n

co n stitu ted a “ v io len t f

elo n y ” u n d er th e A rm ed Career Crim i n a l Act, 1 8 U.S.C. § 9 24 (e), ap p l y i n g th e categ o rical m atch in g ap p ro ach

. S ee 4 9 5 U.S. at 5 78
, 6 0 2. B u t th e sam e ap p ro ach “ g en erally ” ap p l i e s t o th e q u estio n w

h eth er a p rio r state co n v ictio n co n stitu tes an ag g rav ated f

elo n y

u n d er t h e INA
, Mo n crieffe

, 13 3 S. Ct. at 1 6 84 ; th o u g h n o t alw ay s , see N i jh a wa n v. Ho ld

er , 5 5 7 U.S. 2 9
, 4 0 (2 0 0 9 ) (rej ectin g th e cate go r i c a l
ap p ro ach f

o r th e m o n etary th resh o ld f o r th e ag g rav ated f

elo n y listin g f

or f rau d ).U N I T E D S T A T E S V

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id. at 1686–87. I n other wor d s , for a state marijuana distribution offense to be a n ag g ravated felony

, the conviction
must establish “that the offense involved either r emuneration

or more than a small amount of marijuana.” Id. at 1693–94. B ecause the Georg ia statute at issue c ould po s sibly criminaliz e possession w ith intent to distribute small a mounts for no remuneration, it was not a categ orical match t o the
g eneric federal offense. See id. at 1686–87.

Gonz a lez ’s reliance on Moncrieffe is misplaced. We a re not comparing a state drug offense to a federal CSA offense,

as in Mo n c rieffe

. Gonz alez ’s offense is a CSA offense. Taylor and Moncrieffe ’ s categ orical matching analy sis is inapplicable h ere because there i s nothing to match. See Moncrieffe

, 1 33 S. Ct. at 1696 (Alito, J
., dissenting ) (“W here

an alien has a prior federal conviction, it is a straig htforward
matter to d etermine whether the c o nviction was for a ‘felony
p u n ishable under the [ CSA] .’” (alteration in orig inal)). All

we must determine is whether the CSA treats G on z a l e z ’s offense as a felony

. See Lopez
, 549 U .S. at 56 n.7. W e know it does because his judg ment listed his o ffense as a violation of subsection 841(b)(1)(D), n ot 841(b)(4), and he was sentenced to more than o n e y e a r in prison. B ecause Gonz a lez ’s c o n v i ction w as for an a g g ravated felony

, his subsequent deportation was valid and did not violate h is d ue process rig hts.

B. Jury Instruction on Alienage

Gonz a lez also challeng es his illeg al reentry conviction b y arg uing the district court erred by instructing the jury it could infer he was an alien from a prior deportation order. I t is true

a deportation order, on its o wn, is insufficient to establish alienag e. S

e e United S

t a t es v

. Ruiz-Lopez
, 749 F .3d 1138,U N I T E D S T A T E S V

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1141 (9th Cir. 2014) (“‘[ N] either a deportation o r der, nor the defendant’s o wn admissions, standing alone,’ is sufficient to prove alienag e.” (alte ration in orig inal) (quoting United States v. Ramirez-Cort e

z , 213 F .3d 1149, 1158 ( 9th Cir. 2000))). B ut the district court did not instruct the jury to the contrary

. I nstead, the c ourt instructed the jury that a deportation o rder is insufficient, by itself, to es t a b lish alienag e, but that Gonz a lez ’s prior d e p o r t a t i o n i n c o m b ination with his prior admissions “may e stablish alienag e.” This was

a correct statement of the law. See United States v. GalindoGallegos

, 244 F .3d 728, 732 (9th Cir. 2001) (“A defendant’s admi s s i ons that he is an a lien, tog ether with a deportation order, suffice to e stablish a lie n ag e .”), amended o n other grounds , 255 F .3d 1154 (9th Cir. 2001).

Gonz a lez ’s arg ument that the jury should h ave been prohibi t e d f

r om rely ing o n h is prior deportation order at all has no support in the law. He cites United States v. Medina

, 236 F .3d 1028, 1030-31 ( 9th Cir. 2 001), but that case merely confirms a d eportation order alone cannot establish alienag e

. See id. ; see also United States v. Sandoval-Gonzalez

, 642 F .3d 717, 7 22 n.4 (9th Cir. 2011) (interpreting Medina to hold a deportation order “may b e considered only a s r elevant, but not conclusive, evidence” of alienag e ). The district court therefore did not misstate the law in its jury instruction. 3

3 T h e g o v ern m en t arg u es Go n zalez w aiv ed th is issu e becau se h e j o in tly
p ro p osed a j u ry in stru ctio n th at w as m aterially in d istin g u i sh ab le f ro m th e

o n e g iv en

. S

ee Un ited Sta tes v. Hu i Hsiu n g , 77 8 F.3 d 7 3 8
, 7 4 8 (9 th Cir. 2 0 1 5 ). A ltern ativ ely

, th e g ov ern m en t co n ten d s w e sh o u l d rev iew th e j u ry in stru ctio n f

o r p l ain erro r b ecau se G o n zalez d id n o t o b j ect to it in th e d istrict co u

rt. See Un ited S ta t es v. Armstro n g , 90 9 F.2 d 1 2 38
, 12 4 3

– 4 4 (9 th Cir. 1 9 9 0). W e declin e to ad d ress th ese arg u m en ts becau se, assu m in g th e issu e w as p ro p erly p reserv ed f o r ap p eal, th e d istrict co u rt’ s j u ry in stru ctio n

clearly w as n o t erro n eo u s.U N I T E D S T A T E S V

. G O N Z A L E Z -C O R

N 15

IV. CONCLUSION

W e h old a conviction for possession w ith intent t o distribute marijuana under 2 1 U .S.C. § 841(b)(1)(D ) t h at results in a sentence ex ceeding one y ear c onstitutes a “felony punishable under the Controlled Substances Act.” 18 U .S.C. § 924(c)(2). A s such, it is by definition an ag g ravated felony under the I mmig ration an d Nationality Act. Gonz a lez ’s de p o r t a tion order, therefore, did not violate his due process rig hts and could properly serve as a predicate element of his illeg al reentry conviction under 8 U.S.C. § 1326(a). Additionally

, the district court properly i n s t r ucted the jury that i t c ould infer Gonz alez ’s alienag e from h is prior deportat i o n order in combination with his a dmissions
reg arding his alienag e.

AF F IRMED.