FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MIGUEL DE LA TORRE-JIMENEZ, aka

Miguel de la Torre, aka Miguel

Delatorre, aka Miguel Angel

Jimenez,

Defendant-Appellant.

No. 13-50438

D.C. No.

2:12-cr-00828-

GHK-1

OPINION

Appeal from the United States District Court

for the Central District of California

George H. King, Chief District Judge, Presiding

Argued and Submitted

October 8, 2014—Pasadena, California

Filed November 7, 2014

Before: David M. Ebel,* Andrew J. Kleinfeld,

and Susan P. Graber, Circuit Judges.

Opinion by Judge Graber

* The Honorable David M. Ebel, Senior Circuit Judge for the United

States Court of Appeals for the Tenth Circuit, sitting by designation.
2 UNITED STATES V. DE LA TORRE-JIMENEZ

SUMMARY**

Criminal Law

The panel affirmed a sentence for being a deported alien

found in the United States after removal, in violation of 18

U.S.C. § 1326, in a case in which the district court, applying

the modified categorical approach, concluded that the

defendant’s prior conviction for possession of cocaine for

sale, in violation of California Health and SafetyCode section

11351, was for a “drug trafficking offense” under U.S.S.G.

§ 2L1.2(b)(1)(A).

Applying Coronado v. Holder, 759 F.3d 977 (9th Cir.

2014) (holding that California Health and SafetyCode section

11377(a) is divisible), the panel held that section 11351 is

divisible within the meaning of Descamps v. United States,

133 S. Ct. 2276 (2013), with respect to the type of controlled

substance, such that the modified categorical approach may

be applied. The panel also held that there is no irreconcilable

conflict, in result or methodology, between Coronado and

Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014), which

considered the divisibility of a burglary statute with respect

to an intent element.

The panel held that the district court properly concluded

under the modified categorical approach that the defendant

had been convicted of a “drug trafficking offense” under

§ 2L1.2(b)(1)(A), where the criminal complaint specified in

Count 1 that the defendant possessed or purchased cocaine,

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. DE LA TORRE-JIMENEZ 3

and the abstract of judgment stated that the defendant pleaded

guilty to Count 1.

COUNSEL

James H. Locklin (argued), Deputy Federal Public Defender,

and Sean K. Kennedy, Federal Public Defender, Los Angeles,

California, for Defendant-Appellant.

L. Ashley Aull (argued) and Robert E. Dugdale, Chief,

Criminal Division, Assistant United States Attorneys, and

André Birotte, Jr., United States Attorney, Los Angeles,

California, for Plaintiff-Appellee.

OPINION

GRABER, Circuit Judge:

Defendant Miguel de la Torre-Jimenez appeals his 18-

month sentence following a guilty plea to one count of being

a deported alien found in the United States after removal, in

violation of 8 U.S.C. § 1326. Applying the modified

categorical approach, the district court concluded that

Defendant’s prior conviction for possession of cocaine for

sale, in violation of California Health and SafetyCode section

11351, was for a “drug trafficking offense” under U.S.S.G.

§ 2L1.2(b)(1)(A). Defendant objected, arguing that (1) the

court could not use the modified categorical approach

because section 11351 is not “divisible” within the meaning

of Descamps v. United States, 133 S. Ct. 2276 (2013), and

(2) even if that approach is permissible, the documents

presented by the government did not demonstrate that his
4 UNITED STATES V. DE LA TORRE-JIMENEZ

prior conviction was for a “drug trafficking offense.” 

Reviewing de novo, United States v. Gomez-Leon, 545 F.3d

777, 782 (9th Cir. 2008), we reject both arguments. Because

the district court correctly applied the 16-level sentencing

enhancement, we affirm.

DISCUSSION

Sentencing Guideline § 2L1.2(b)(1)(A) directs the

sentencing court to increase the offense level by 16 if the

defendant was removed after “a conviction for a felony that

is (I) a drug trafficking offense for which the sentence

imposed exceeded 13 months.” Here, there is no dispute that

Defendant was removed after he was convicted of a felony

for which the sentence imposed exceeded 13 months. The

only question is whether the prior conviction qualifies as a

“drug trafficking offense.” “We apply the categorical and

modified categorical approaches described in Taylor v.

United States, 495 U.S. 575 (1990), to determine whether

a defendant’s prior conviction satisfies U.S.S.G.

§ 2L1.2(b)(1)(A).” United States v. Leal-Vega, 680 F.3d

1160, 1163 (9th Cir. 2012).

In applying the categorical approach, we must “compare

the statutory definition of the underlying offense to the

Guidelines definition of a ‘drug trafficking offense.’” 

Gomez-Leon, 545 F.3d at 783. California Health and Safety

Code “[s]ection 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.
UNITED STATES V. DE LA TORRE-JIMENEZ 5

The next step is to apply the modified categorical

approach in order to determine whether Defendant’s

conviction involved a controlled substance covered by the

CSA. Id. at 1167–68. Applying the modified categorical

approach, the district court ruled that Defendant’s conviction

involved cocaine. Because cocaine is a controlled substance

under the CSA, 21 U.S.C. § 812(c) sched. II(a)(4), the district

court concluded that Defendant was convicted of a “drug

trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A).

Defendant argues that the district court erred by applying

the modified categorical approach, because the California

statute is not “divisible” within the meaning of Descamps. In

the alternative, he asserts that, even if the modified

categorical approach applies, the records submitted by the

government are insufficient to demonstrate that his conviction

was for possession of cocaine. We address those arguments

in turn.

A. Divisibility of California Health and Safety Code

Section 11351

In Descamps, 133 S. Ct. at 2281, the Supreme Court held

that the modified categorical approach may be used for a

“‘divisible statute’”—one that “sets out one or more elements

of the offense in the alternative.” But the modified

categorical approach does not apply to “an ‘indivisible

statute’—i.e., one not containing alternative elements.” Id.

Defendant argues that California Health and Safety Code

section 11351 is not divisible.
6 UNITED STATES V. DE LA TORRE-JIMENEZ

We do not write on a clean slate. In Coronado v. Holder,

759 F.3d 977, 983–85 (9th Cir. 2014), we considered a

similar California drug law, California Health and Safety

Code section 11377(a). That statute provides that “every

person who possesses any controlled substance [in various

statutory lists]” has committed a crime. Cal. Health & Safety

Code § 11377(a). We held that, because the statute contains

a “listing of alternative controlled substances,” the statute was

divisible within the meaning of Descamps. Coronado,

759 F.3d at 985. In reaching that conclusion, we looked to

California law in rejecting the petitioner’s argument that “‘the

precise controlled substance possessed is not an essential

element’ of § 11377(a).” Id. at 985 n.4. Accordingly, we

applied the modified categorical approach. Id. at 985–86.

On the question of divisibility with respect to the type of

controlled substance, there is no meaningful distinction

between sections 11377(a) and 11351 of the CaliforniaHealth

and Safety Code. Identically to section 11377(a), section

11351 contains a “listing of alternative controlled

substances.” Coronado, 759 F.3d at 985; see also Ragasa v.

Holder, 752 F.3d 1173, 1176 (9th Cir. 2014) (holding that a

Hawaii drug law was divisible because the statute lists

various controlled substances). Looking to California law,

we find no meaningful distinction between the two sections

on the question whether the controlled substance is an

essential element.

The two sections criminalize different drug-related

behavior (simple possession versus possession for sale or

purchase for purposes of sale) and cover different statutory
UNITED STATES V. DE LA TORRE-JIMENEZ 7

lists of controlled substances.1 But Defendant has

offered—and we have discovered—no reason, under

California law or otherwise, why those facts or any other

difference between the statutes is relevant to the question of

divisibility concerning the type of controlled substance. In

sum, Coronado controls. We are bound to conclude that, like

section 11377(a), section 11351 of the California Health and

Safety Code is divisible within the meaning of Descamps.

Defendant directs us to examine our recent decision in

Rendon v. Holder, 764 F.3d 1077, 1081 (9th Cir. 2014), in

which we held that the California burglary statute is not

divisible with respect to an intent element. Were we to look

to California law in the way Rendon instructs, he contends,

1 California Health and Safety Code section 11377(a) covers any

substance

(1) classified in Schedule III, IV, or V, and which is not

a narcotic drug, (2) specified in subdivision (d) of

Section 11054, except paragraphs (13), (14), (15), and

(20) of subdivision (d), (3) specified in paragraph

(11) of subdivision (c) of Section 11056, (4) specified

in paragraph (2) or (3) of subdivision (f) of Section

11054, or (5) specified in subdivision (d), (e), or (f) of

Section 11055 . . . .

Section 11351 covers

(1) any controlled substance specified in subdivision

(b), (c), or (e) of Section 11054, specified in paragraph

(14), (15), or (20) of subdivision (d) of Section 11054,

or specified in subdivision (b) or (c) of Section 11055,

or specified in subdivision (h) of Section 11056, or

(2) any controlled substance classified in Schedule III,

IV, or V which is a narcotic drug . . . .
8 UNITED STATES V. DE LA TORRE-JIMENEZ

we would conclude that California drug crimes are not

divisible. We are unpersuaded.

As a three-judge panel, we are bound by Coronado. 

Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en

banc). We cannot disregard binding precedent, as Defendant

asks us to do. Because Coronado controls, we must follow it.

Moreover, if we thought that two controlling cases were

in irreconcilable conflict, we could not simply pick one to

follow—we would be required to call this case en banc. See

Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478–79

(9th Cir. 1987) (en banc) (holding that “the appropriate

mechanism for resolving an irreconcilable conflict is an en

banc decision. A panel faced with such a conflict must call

for en banc review”). But no irreconcilable conflict exists.

There certainly is no conflict in result: Coronado (like

our case) pertains to the divisibility of a drug statute with

respect to a list of controlled substances, whereas Rendon

considered the divisibility of a burglary statute with respect

to an intent element. Defendant recognizes that distinction,

arguing instead that the method of analysis described in

Rendon is inconsistent with the method used in Coronado. 

But, in Rendon, we expressly considered Coronado’s method

of determining divisibility and held that, because Coronado

looked to California law, its approach was “consistent with

our approach” in Rendon, 764 F.3d at 1087 n.11 (emphasis

added). Accordingly, there appears to be no conflict in

methodology, either.

Indeed, we recently applied the Rendon methodology to

yet another California drug-related statute, California Health

and Safety Code section 11378. Padilla-Martinez v. Holder,
UNITED STATES V. DE LA TORRE-JIMENEZ 9

No. 11-72570, 2014 WL 5421219 (9th Cir. Oct. 27, 2014). 

As in Coronado, we held that the statute is divisible. Id. at *4

n.3. And as in Coronado, the statute is divisible because it is

drafted in the disjunctive (listing several controlled

substances), and “California state law treats the type of

controlled substance as a separate element” with respect to

drug offenses. Id.

Viewed properly, then, the essence of Defendant’s

argument is simply that Coronado applied the methodology

incorrectly or incorrectly assessed the content of California

law. In other words, Defendant argues that Coronado was

wrongly decided. As noted above, we cannot overrule

Coronado. Miller, 335 F.3d at 899–900.

In conclusion, Coronado examined California law and

held that a California drug law that covers a list of controlled

substances is divisible. The California drug law at issue here

also covers a list of controlled substances, and no meaningful

distinction exists between the two statutes. Because there is

no irreconcilable conflict between Coronado and any other

case, we must follow Coronado. Accordingly, California

Health and Safety Code section 11351 is divisible with

respect to the type of controlled substance. We turn, then, to

the modified categorical approach.

B. Modified Categorical Approach

“The modified categorical approach allows us 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.” 

Sanchez-Avalos v. Holder, 693 F.3d 1011, 1014–15 (9th Cir.
10 UNITED STATES V. DE LA TORRE-JIMENEZ

2012). Here, the government presented three documents: a

criminal complaint, an abstract of judgment, and a docket

sheet. Those sources are appropriate for our review under the

modified categorical approach. See Shepard v. United States,

544 U.S. 13, 26 (2005) (charging document); RamirezVillalpando v. Holder, 645 F.3d 1035, 1040 (9th Cir. 2011)

(abstract of judgment); Coronado, 759 F.3d at 986 (docket

sheet).

The criminal complaint alleges in “COUNT 1” that

Defendant “did unlawfully possess for sale and purchase for

sale a controlled substance, to wit, cocaine” in violation of

“HEALTH & SAFETY CODE SECTION 11351.” The

abstract of judgment states that “Defendant was convicted of

the commission of the following felony,” followed by a chart

listing Count “1,” Code “HS,” section “11351,” crime “POSS

NARCOTIC CONTROLLED SUBST FOR SALE” by

“plea.” The criminal docket sheet states that Defendant

pleaded guilty to “Count 01.”

The criminal complaint specifies in Count 1 that

Defendant possessed or purchased cocaine, and the abstract

of judgment states that Defendant pleaded guilty to Count 1. 

“Where the minute order or other equally reliable document

specifies that a defendant pleaded guilty to a particular count

of a criminal complaint, the court may consider the facts

alleged in the complaint.” Coronado, 759 F.3d at 986;

accord Cabantac v. Holder, 736 F.3d 787, 793–94 (9th Cir.

2013) (per curiam) (“[W]here, as here, the abstract of

judgment or minute order specifies that a defendant pleaded

guilty to a particular count of the criminal complaint or

indictment, we can consider the facts alleged in that count.”);

see also United States v. Valdavinos-Torres, 704 F.3d 679,

687–88 (9th Cir. 2012) (looking to the facts alleged in the
UNITED STATES V. DE LA TORRE-JIMENEZ 11

charging document where the change of plea form stated that

the defendant pleaded guilty to a specific count), cert. denied,

134 S. Ct. 1873 (2014); Leal-Vega, 680 F.3d at 1168 (same,

where the minute order, abstract of judgment, and plea form

stated that the defendant pleaded guilty to a specific count);

United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir.

2008) (per curiam) (en banc) (same, where the minute order

stated that the defendant pleaded guilty to a specific count). 

Accordingly, the record clearly shows that Defendant’s

conviction under California Health and Safety Code section

11351 related to the specific controlled substance of cocaine.

Defendant does not challenge that reasoning. Instead, he

quotes one sentence from our decision in United States v.

Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en banc), and

argues that the five cases cited above are irreconcilable with

Vidal. Defendant is mistaken.

In Vidal, we held: “In order to identify a conviction as

the generic offense through the modified categorical

approach, when the record of conviction comprises only the

indictment and the judgment, the judgment must contain the

critical phrase ‘as charged in the Information.’” Id. (some

internal quotation marks omitted). Taken in isolation, that

sentence appears to conflict with our later cases, which have

not required the “critical phrase” noted in Vidal. But we

repeatedly have explained why that one sentence in Vidal

must not be viewed in isolation.

In Valdavinos-Torres, 704 F.3d at 688, we held that,

because the documents in Vidal raised doubt about the actual

crime to which the defendant had pleaded guilty, requiring

the “critical phrase” made sense. But where, as in

Valdavinos-Torres, nothing raises doubt about the crime, the
12 UNITED STATES V. DE LA TORRE-JIMENEZ

“critical phrase” is not required. Id. We recognized this

same distinction also in Leal-Vega, 680 F.3d at 1168: “No

evidence in the record suggests that any modifications were

made to the felony complaint in terms of the substance

involved. Thus, no ambiguity exists and no further clarifying

language was necessary.”2 Most recently, in Medina-Lara v.

Holder, No. 13-70491, 2014 WL 5072684, at *4 (9th Cir.

Oct. 10, 2014), we reiterated that the “critical phrase” is not

required when the record is clear. Because the documents

were ambiguous in that case—for example, “[t]he abstract

states Medina pleaded to count ‘3A,’ not count ‘3’ as it is

denominated in the complaint”—we held that the record was

insufficient. Id. at *5.

Where, as here, the abstract of judgment unambiguously

specifies that Defendant pleaded guilty to a specific count, we

look to the facts alleged in that count in the charging

document. We recognize that some think that a different rule

should apply. Cabantac, 736 F.3d at 789 (order) (Murguia,

J., dissenting from the denial of rehearing en banc). Unless

and until our cases are overruled by an intervening Supreme

Court or en banc decision, though, we are bound by that rule. 

Miller, 335 F.3d at 899–900. Litigants may, of course,

preserve the argument for en banc or Supreme Court review. 

Or litigants may argue that an ambiguity exists in the

particular documents at hand. But our precedent squarely

forecloses the argument that one isolated sentence in Vidal

controls; the phrase “as charged in the Information (or

2 The fact that the two situations are different may explain why, in

Snellenberger, we did not see the need to mention Vidal. Nonetheless, to

the extent that they conflict, the later en banc decision controls. Saffon v.

Wells Fargo &Co. Long Term Disability Plan, 522 F.3d 863, 872 n.2 (9th

Cir. 2008).
UNITED STATES V. DE LA TORRE-JIMENEZ 13

Indictment)” is not required where the documents are

unambiguous.

CONCLUSION

California Health and Safety Code section 11351 is

“divisible” within the meaning of Descamps, 133 S. Ct. 2276. 

Because the criminal complaint specified that Count 1

involved cocaine and the abstract of judgment specified that

Defendant pleaded to Count 1, the district court correctly

concluded that Defendant had been convicted of a “drug

trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A).

AFFIRMED.