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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff/Respondent,

 vs.

CORNELIO MATA ESPINOZA, 

Defendant/Petitioner. 

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No. CR 09-0103 CRB 

ORDER DENYING MOTION TO

ALTER OR AMEND JUDGMENT

PURSUANT TO FEDERAL

RULE OF CIVIL PROCEDURE

59(e)

Now before the Court is Petitioner Cornelio Mata Espinoza’s third round

of motions to amend or vacate the Court’s judgment, which found him a career

offender, on the grounds that the Court erred in applying the modified categorical

approach to its determination. Mot. to Alter or Amend Judgment (“MAJ”) (dkt.

385). The Court DENIES the motion because Petitioner’s argument lacks merit

under Federal Rule of Civil Procedure (“FRCP”) 59(e). Petitioner was properly

categorized as a career offender.

I. BACKGROUND

On September 23, 2009, Petitioner pled guilty to conspiracy to distribute

controlled substances in violation of 21 U.S.C. §§ 841(b)(1) and 846. See

Minute Entry for Sept. 23, 2009 (dkt. 89); see also Plea Agreement (dkt. 90) ¶ 1. 

In his plea agreement, Petitioner stipulated to being a career offender pursuant to

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United States Sentencing Guideline (“U.S.S.G.”) Section 4B1.1. See Plea

Agreement ¶ 8.

On June 30, 2010, this Court sentenced Petitioner to 250 months’

confinement. See Minute Entry for June 30, 2010 (dkt. 198); Gov’t Sentencing

Memo. (dkt. 185) at 5 (noting Petitioner’s 2002 and 2004 felony convictions); Tr.

of Sentencing as to Petitioner (dkt. 280) at 3:19–20 (Court noting defendant

stipulated to the career offender categorization in his plea), 7:18–21 (Petitioner’s

counsel stating that Petitioner “is categorized as a career offender for his

convictions in San Francisco Superior Court”).

On June 13, 2011, Petitioner filed a motion to vacate his sentence under

28 U.S.C. § 2255. See Mot. to Vacate as of June 13, 2011 (dkt. 297). This Court

granted that motion in part, vacating and re-entering judgment to allow Petitioner

to file an appeal. See Order Vacating and Reentering Judgment (dkt. 319). The

Ninth Circuit dismissed Petitioner’s appeal in November 2013 on the grounds

that Petitioner waived his right to appeal in his plea agreement. See Mandate of

U.S.C.A. (dkt. 331).

In December 2013, Petitioner filed his second motion to vacate under

Section 2255. See Mot. to Vacate as of December 4, 2013 (dkt. 333). There,

Petitioner claimed that he could not be categorized as a career offender because

his 2002 conviction under California Health and Safety Code Section 11351 was

not a felony. Id. ¶ 12. On July 21, 2014, this Court denied that motion, finding

that the 2002 conviction was a felony conviction of a controlled substance

offense. See Order Denying Mot. to Vacate (dkt. 345). 

On March 2, 2015, Petitioner asked this Court to reopen his motion to

vacate because of erroneous dicta in this Court’s ruling stating that “any conduct

that violates . . . Section 11351 is by definition a controlled substance offense.” 

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See Mot. to Reopen (dkt. 371); see also Order Denying Mot. to Vacate (dkt. 345)

at 7. In April 2015, this Court acknowledged the misstatement of law, but

maintained that Petitioner was nonetheless properly categorized as a career

offender under an application of a modified categorical approach. See Order

Denying Mot. to Reopen Mot. to Vacate (dkt. 381). 

Petitioner once more attempts to convince this Court of its error in finding

him a career offender. See MAJ (dkt. 385). In his motion, Petitioner cites both

to FRCP 59(E)(2) and 59(a). See MAJ (dkt. 385). As Rule 59(E)(2) does not

exist and Rule 59(a) does not apply, both the government and the Court assume

that the Petitioner intended to cite to Rule 59(e) to argue that the judgment

finding him a career offender should be amended. 

II. LEGAL STANDARD

Rule 59(e) allows a court to alter or amend a judgment. It is an

“extraordinary remedy” that applies only in “highly unusual circumstances.” See

Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000); see

also Orange Street Partners v. Arnold, 179 (F.3d 656, 665 (9th Cir. 1999). The

Ninth Circuit specified that an amendment under this Rule is appropriate only if

“(1) the district court is presented with newly discovered evidence, (2) the district

court committed clear error or made an initial decision that was manifestly unjust,

or (3) there is an intervening change in controlling law.” Zimmerman v. City of

Oakland, 255 F.3d 734, 740 (9th. Cir. 2001) (citing School District No.1J,

Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). “Clear

error” occurs when “the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” United States v.

U.S. Gypsum Co., 333 U.S. 364, 395 (1948). 

 

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This Court will decline to dismiss the motion for failure to state a claim upon which

relief can be granted due to Petitioner’s mistaken citation to the Federal Rules of Civil

Procedure. See United States’ Opp’n to Defendant’s Motion to Alter or Amend Judgment (dkt.

392) at 3 (arguing for this result). This Court will similarly decline to address whether the

motion should be categorized as a second or successive habeas petition. See id. (arguing to

characterize Petitioner’s motion as such). Notwithstanding the procedural issues, Petitioner’s

motion still fails on the merits. 

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III. DISCUSSION

Petitioner’s motion argues that the Court erred in applying the modified

categorical approach. MAJ at 2. Petitioner further contends that the documents

used by the Court to determine the crime to which Petitioner pled guilty were

improper. Id. at 3. Because Petitioner believes that those documents do not

indicate which felony he pled guilty to, he maintains that the Court should not

rely on them. Id. Petitioner argues that the Court incorrectly applied the

modified categorical approach and thus his sentence should be vacated. Id. at 4. 

The question before the Court is whether it committed “clear error” in applying

the modified categorical approach to find that Petitioner is a career offender.1

See Order Denying Mot. to Reopen Mot. to Vacate (dkt. 381). 

A defendant is a career offender for purposes of sentencing if:

(1) [T]he defendant was at least eighteen years old at the time the

defendant committed the instant offense of conviction; (2) the instant

offense of conviction is a felony that is either a crime of violence or a

controlled substance offense; and (3) the defendant has at least two prior

felony convictions of either a crime of violence or a controlled substance

offense.

U.S.S.G. § 4B1.1(a). A controlled substance offense is defined as:

[A]n offense under federal or state law, punishable by imprisonment for a

term exceeding one year, that prohibits the manufacture, import, export,

distribution, or dispensing of 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. § 4B1.2(b). 

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To determine whether a past conviction qualifies as a specific type of

offense, courts can use either the categorical approach or the modified categorical

approach. See Taylor v. United States, 495 U.S. 575 (1990) (explaining

approaches). In Descamps v. United States, 133 S. Ct. 2276 (2013), the Supreme

Court discussed both approaches in further detail. Under the categorical

approach, courts “compare the elements of the statute forming the basis of the

defendant’s conviction with the elements of the ‘generic’ crime –i.e., the offense

as commonly understood.” Id. at 2281. Under this approach, the past conviction

only qualifies if the elements of the statute are “the same as, or narrower than,

those of the generic offense.” Id. “If the statutory definition of the prior offense

criminalizes conduct that would not constitute [a qualifying felony under the

Sentencing Guidelines], then the statute is not a categorical fit, and [a court] must

consider whether the prior conviction may still be used for a sentencing

enhancement using the modified categorical approach.” United States v. LealVega, 680 F.3d 1160, 1164 (9th Cir. 2012).

Courts use the modified categorical approach when a defendant’s prior

conviction is for violating a “divisible statute.” See Descamps, 133 S. Ct. at

2281. “The modified categorical approach allows [courts] to look beyond the

statute of conviction to determine whether the facts proven at trial or admitted by

the defendant as part of his guilty plea establish that the defendant was convicted

of all the elements of the relevant federal generic offense.” Torre-Jimenez, 771

F.3d at 1167 (citing Sanchez-Avalos v. Holder, 693 F.3d 1011, 1014-15 (9th Cir.

2012)). As such, courts are permitted “to consult a limited class of

documents . . . to determine which alternative formed the basis of the defendant’s

prior conviction.” Descamps, 133 S. Ct. at 2281. The court is limited to “the

charging document, the terms of a plea agreement or transcript of a colloquy

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between judge and defendant in which the factual basis for the plea was

confirmed by the defendant, or to some comparable judicial record of this

information.” Shepard v. United States, 544 U.S. 13, 26 (2005); see also United

States v. Snellenberger, 548 F.3d 699, 701 (9th Cir. 2008) (holding that courts

may also consider documents of “equal reliability” such as a clerk’s minute

order). When the court determines the basis of the prior conviction using this

modified approach, it can compare the conviction with the generic offense to see

if it qualifies as a certain type of offense. See Descamps, 133 S. Ct. at 2281. 

In decisions both before and after Descamps, the Ninth Circuit held that a

modified categorical approach to Section 11351 is proper. See Leal-Vega, 680

F.3d at 1167 (applying modified categorical approach); see also United States v.

Torre-Jimenez, 771 F.3d 1163, 1167 (9th. Cir. 2014) (applying the modified

categorical approach). The Ninth Circuit held that “Section 11351 is

categorically broader than the Guidelines definition of ‘drug trafficking offense’

because it criminalizes possession or purchase of certain substances that are not

covered by the CSA [Federal Controlled Substances Act].” Leal-Vega, 680 F.3d

at 1167; see also United States v. Charles, 581 F.3d 927, 934 (9th Cir. 2009)

(applying case law regarding Section 2L1.2 to Section 4B1.1, noting that the

definition of “controlled substance offense” under 4B1.2 and “drug trafficking

offense” under 2L1.2 are substantially similar). Furthermore, in Torre-Jimenez,

771 F.3d at 1167, the Ninth Circuit found that Section 11351 “is divisible with

respect to the type of controlled substance” and therefore courts should apply the

modified categorical approach to it.

The Court holds that it did not commit “clear error” in using the modified

categorical approach to determine if Petitioner’s past conviction qualifies as a

“controlled substance offense” pursuant to U.S.S.G. Section 4B1.2(b). Although

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Section 11351 is broader than the Guidelines definition of “controlled substance

offense,” heroin is a controlled substance under the CSA. See 21 U.S.C. § 812(c)

sched. I(b)(10). Because the statute is divisible and the elements of Petitioner’s

conviction are identified in the CSA, it was appropriate for this Court to use the

modified categorical approach in its determination. 

Moreover, in utilizing this approach, the Court inquired into the

appropriate documents in the record to determine that Petitioner’s underlying

2002 conviction qualified as a felony controlled substance offense for purposes

of U.S.S.G. Section 4B1.1(a). See Order Denying Mot. to Reopen Mot. to

Vacate, Set Aside or Correct Sentence (dkt. 371) at 6; see also United States v.

Sandoval-Venegas, 292 F.3d 1101, 1107 (9th Cir. 2002). First, the Court

considered the 2002 complaint, which alleged that Petitioner did “commit the

crime of felony, to wit: Violating Section 11351 of the California Health and

Safety Code, in that the said defendant did wilfully and unlawfully possess for

sale and purchase for purpose of sale a controlled substance, to wit: HEROIN.” 

Comp., People v. Mata, San Francisco Super. Ct. No. 187000 (dkt. 343-3). 

Second, this Court also properly considered the minute entry for Petitioner’s

2002 plea, stating that he was “convicted of the crime(s) of felony by plea.” See

Order Denying Mot. to Vacate at 7 (citing Minute Entry for Oct. 2, 2002, People

v. Mata, San Francisco Super. Ct. No. 18700 (dkt. 343-3)); see also Order

Denying Mot. to Reopen Mot. to Vacate (dkt. 371) at 6. 

Upon reviewing the proper documents in the record and pursuant to

U.S.S.G. Section 4B1.1(a), this Court determined that Petitioner was 1) convicted

of a felony violation; and 2) that felony violation involved the a controlled

substance heroin. Because Section 11351 is divisible and heroin is covered by

both the Health and Safety Code of California and the CSA for purposes of being

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a career offender, see Torre-Jimenez, 771 F.3d at 1166; Health and Safety Code

of California Section 11351; 21 U.S.C. § 812(c) sched. I(b)(10), this Court

properly concluded that Petitioner had been convicted of a “controlled substance

offense” under U.S.S.G. Section 4B1.1(a). See Order Denying Mot. to Vacate

(dkt. 345); see also Order Denying Mot. to Reopen Mot. to Vacate (dkt. 381). 

Petitioner is correct that what is important here is not proving that he

committed the crime itself, but rather the actual elements to which he pled guilty. 

Id. at 2–3; see also Descamps, 133 S. Ct. at 2286 (noting that “a court may look

to the additional documents to determine which of the statutory offenses . . .

formed the basis of the defendant’s conviction.”). However, Petitioner’s reliance

upon Medina-Lara v. Holder, 771 F.3d 1106 (9th Cir. 2014) is misplaced for two

reasons. First, unlike in Medina-Lara, the record here is clear that Petitioner pled

guilty to possession of heroin. See Minute Entry for Oct. 2, 2002, People v.

Mata, San Francisco Super. Ct. No. 18700 (dkt. 343-3). Second, the government

is correct in its observation that Medina-Lara had been decided when this Court

considered Petitioner’s prior motions in March 2015. See United States’

Opposition to Defendant’s Mot. to Alter or Amend Judgment (dkt. 392); see also

Order Denying Mot. to Reopen Mot. to Vacate (dkt. 381). The Court took under

consideration all relevant law at the time of these prior motions and remained

steadfast in its conclusion that Petitioner’s 2002 guilty plea under Section 11351

qualified as a “controlled substance offense” for purposes of U.S.S.G.

Section 4B1.1. Petitioner presents no newly discovered evidence, nor was there

an intervening change in the controlling law, to warrant amendment under the

high standards of Rule 59(e). Nor did this Court commit “clear error” or abuse

its discretion in continuing to find Petitioner categorized as a career offender

using the modified categorical approach. 

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Under Section 4B1.1, two prior felony convictions for controlled

substance offenses are necessary to characterize a defendant as a career offender. 

Petitioner’s uncontested 2004 conviction, and his contested 2002 conviction, both

qualify as felony offenses. This Court’s application of the modified categorical

approach in this instance was proper, thus Petitioner remains properly

characterized as a career offender. Accordingly, Petitioner’s motion to alter or

amend judgment pursuant to FRCP 59(e) is DENIED. 

IT IS SO ORDERED.

DATED: September 10, 2015 

CHARLES R. BREYER

UNITED STATES DISTRICT JUDGE

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