FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-50905 Plaintiff-Appellee,

D.C. No.

v.  CR-05-00040-NAJ

NORBERTO REVELES-ESPINOZA,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Napoleon A. Jones, District Judge, Presiding

Argued and Submitted

October 20, 2006—Pasadena, California

Submission Withdrawn February 2, 2007

Resubmitted October 12, 2007

Filed April 15, 2008

Before: Raymond C. Fisher and Consuelo M. Callahan,

Circuit Judges, and Raner C. Collins, District Judge.*

Per Curiam Opinion

*The Honorable Raner C. Collins, United States District Judge for the

District of Arizona, sitting by designation. 

4031
COUNSEL

Marisa L. Dersey, Federal Defenders of San Diego, Inc., San

Diego, California, for the defendant-appellant. 

Jonathan I. Shapiro, Assistant United States Attorney, San

Diego, California, for the plaintiff-appellee. 

UNITED STATES v. REVELES-ESPINOZA 4033
OPINION

PER CURIAM: 

Norberto Reveles-Espinoza was convicted under 8 U.S.C.

§ 1326. He appeals his conviction, arguing that the deportation underlying his conviction was improper because: (1) the

immigration judge failed to advise him he was eligible for

cancellation of removal and (2) he received insufficient notice

of the asserted basis for his deportation. We affirm. 

I. Factual and Procedural Background 

Reveles-Espinoza was born in Mexico and was admitted to

the United States from Mexico as an immigrant in 1965. He

was convicted in Los Angeles County Superior Court of felony cultivation of marijuana under California Health and

Safety Code § 11358 in August 1999. In 2003, he was notified to appear before an immigration judge (IJ) based on the

government’s contention that he was deportable because of

conviction for a “controlled substance offense.” At the hearing, Reveles-Espinoza conceded removability because of his

conviction for a “drug offense.” He admitted he had previously been convicted of heroin possession in 1989 and 1994.

The government asserted that Reveles-Espinoza had also been

convicted of battery against a police officer in 1981 and

unreasonable noise in 2003. 

The IJ ruled that Reveles-Espinoza would have been able

to apply for a waiver if he had only the heroin and noise convictions, but because his most recent conviction for cultivation of marijuana was an aggravated felony, he was not

eligible for any relief. The IJ ordered him removed from the

United States. He appealed the removal to the Board of Immigration Appeals, which affirmed the IJ’s decision without

opinion. He was deported to Mexico in August 2004.

In November 2004, Reveles-Espinoza was arrested in California and admitted to being in the country unlawfully. He

4034 UNITED STATES v. REVELES-ESPINOZA
was indicted under 8 U.S.C. § 1326 as a previously excluded

and deported alien found in the United States without the

express consent of the Attorney General or the Department of

Homeland Security. He moved to dismiss the indictment,

arguing it was based on an invalid deportation because the IJ

failed to inform him that he was eligible for relief from

removal. The district court found that Reveles-Espinoza’s

conviction under California Health and Safety Code § 11358

was indeed an aggravated felony, making him ineligible for

relief. Reveles-Espinoza conditionally pled guilty, subject to

the right to appeal the issue of his prior deportation’s validity.

At sentencing, Reveles-Espinoza objected to the aggravated

felony enhancement based on his conviction under § 11358.

After noting that it considered the question one of first

impression and ordering further briefing on the question, the

district court ruled that the conviction had been substantiated

as an aggravated felony, and enhanced his sentence accordingly.

II. Reveles-Espinoza’s State Conviction

Because Reveles-Espinoza moved to dismiss his § 1326

indictment based on an alleged due process violation during

his underlying deportation proceeding, we review the court’s

failure to dismiss de novo. See United States v. UbaldoFigueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). We also

review de novo whether Reveles-Espinoza’s state conviction

was an aggravated felony within the meaning of federal law

and thus would make him ineligible for cancellation of

removal. See Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th

Cir. 2005). 

[1] If Reveles-Espinoza’s conviction under California

Health and Safety Code § 11358 is an “aggravated felony”

within the meaning of 8 U.S.C. § 1229b, he was not eligible

for cancellation of removal and his deportation was proper.

See 8 U.S.C. § 1229b(a)(3). “ ‘Aggravated felony’ means . . .

UNITED STATES v. REVELES-ESPINOZA 4035
illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as

defined in section 924(c) of Title 18).” 8 U.S.C.

§ 1101(a)(43). “[T]he term ‘drug trafficking crime’ means

any felony punishable under the Controlled Substances Act

. . . .” 18 U.S.C. § 924(c)(2). “[A] state offense constitutes a

‘felony punishable under the Controlled Substances Act’ only

if it proscribes conduct punishable as a felony under that federal law.” See Lopez v. Gonzales, 549 U.S. __, 127 S. Ct. 625,

633 (2006). 

In determining whether a state offense fits within the

generic definition of an aggravated felony, “we first make a

categorical comparison of the elements of the statute of conviction to the generic definition, and decide whether the conduct proscribed by [the statute] is broader than, and so does

not categorically fall within, this generic definition.” HuertaGuevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003); see

Taylor v. United States, 495 U.S. 575, 602 (1990). We conclude that the state offense for which Reveles-Espinoza was

convicted categorically falls within the generic definition of

a “drug trafficking crime” and thus constitutes an “aggravated

felony” within the meaning of 8 U.S.C. § 1229b. 

[2] California Health and Safety Code § 11358 criminalizes

“plant[ing], cultivat[ing], harvest[ing], dr[ying], or process-

[ing] any marijuana.” The information stating the count to

which Reveles-Espinoza eventually pled guilty alleged that he

did “plant, cultivate, harvest, dry, and process marijuana.”

Under federal law, the manufacture of marijuana may be punished by up to five years’ imprisonment and is therefore a felony. See 21 U.S.C. § 841(b)(1)(D); 18 U.S.C. § 3559(a)(4).

“The term ‘manufacture’ means the production . . . or processing of a drug,” 21 U.S.C. § 802(15), and “[t]he term ‘production’ includes the manufacture, planting, cultivation,

growing, or harvesting of a controlled substance,” 21 U.S.C.

§ 802(22). 

4036 UNITED STATES v. REVELES-ESPINOZA
[3] Reveles-Espinoza focuses on the term “drying,” arguing

that that act alone would not qualify as an aggravated felony

and thus § 11358 is categorically overbroad. True, the Controlled Substances Act does not use the term “drying,” but the

ordinary meaning of the terms “production” and “processing

of a drug” includes the act of drying. See, e.g., United States

v. Cordova Barajas, 360 F.3d 1037, 1041-42 (9th Cir. 2004)

(holding that a conviction for “cultivating” marijuana under

21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 was supported by

sufficient evidence where officers found defendant with a garden tool outside a structure “containing drying marijuana

plants”); see also Application Note 1 to U.S.S.G. § 2D1.1;

United States v. Moses, 289 F.3d 847, 850 (6th Cir. 2002);

United States v. Raines, 243 F.3d 419, 422 (8th Cir. 2001);

United States v. Smith, 51 F.3d 980, 981 (11th Cir. 1995) (per

curiam); United States v. Webb, 945 F.2d 967, 968 (7th Cir.

1991); United States v. 40 Moon Hill Road, 884 F.2d 41, 44

(1st Cir. 1989). By pleading guilty to a violation of § 11358,

Reveles-Espinoza thus admitted guilt of activities that are

clearly within the ambit of the federal felony of manufacturing marijuana. 

[4] We must also reject Reveles-Espinoza’s argument that

his conviction falls outside the federal definition of an aggravated felony because of the possibility that he was convicted

under California’s theory of aiding and abetting liability. He

is correct that aiding and abetting liability is implicit in every

California information and that we therefore have no way to

determine whether he was convicted under that theory of liability. See Cal. Penal Code § 971. Reveles-Espinoza accepts

that those convicted of federal aiding and abetting liability are

punishable as principals. See 18 U.S.C. § 2(a). But he argues

that California’s aiding and abetting liability is broader

because California extends this liability to the “natural and

probable consequences” of the crime originally aided and

abetted. 

[5] The Supreme Court, however, recently held in Gonzales

v. Duenas-Alvarez, 549 U.S. __, 127 S. Ct. 815 (2007), that

UNITED STATES v. REVELES-ESPINOZA 4037
the “natural and probable consequences doctrine” was not

“alone” sufficient to “show that the [California theft] statute

covers a nongeneric theft crime, for relatively few jurisdictions . . . have expressly rejected” this doctrine. Id. at 821.

Moreover, as in Duenas-Alvarez, Reveles-Espinoza has failed

to “show something special about California’s version of the

doctrine — for example, that California in applying it criminalizes conduct that most other States would not consider” a

felony under the Controlled Substances Act, because he has

not “point[ed] to his own case or other cases in which the

state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.” Id. at 821-22 (emphasis in original). Reveles-Espinoza has not demonstrated “a

realistic probability, not a theoretical possibility, that [California] would apply its statute to conduct that falls outside the

generic definition of a crime.” Id. at 822. We thus conclude

that California’s aiding and abetting liability is not sufficiently broader than that under federal law such that it places

a conviction under § 11358 outside the ambit of felonies punishable under the Controlled Substances Act. Even if RevelesEspinoza was convicted under an aiding and abetting theory,

he is liable under federal as well as state law. 

III. Notice of Basis of Deportation

[6] The fact that the Notice to Appear (NTA) served upon

Reveles-Espinoza characterized his § 11358 conviction as a

“controlled substance offense” rather than an “aggravated felony” was not a due process violation. See Salviejo-Fernandez

v. Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006) (holding

that “due process does not require inclusion of charges in the

NTA that are not grounds for removal but are grounds for

denial of relief from removal”). Even if Reveles-Espinoza

was initially unaware that a conviction under § 11358 carried

with it the potential to deprive him of eligibility for cancellation of removal, the IJ provided notice by twice delaying the

hearing in order to allow the government time to obtain prior

conviction records so that she could determine Reveles4038 UNITED STATES v. REVELES-ESPINOZA
Espinoza’s eligibility for relief. This flagged the issue of

whether the § 11358 conviction was an “aggravated felony.”

Thus, Reveles-Espinoza received constitutionally sufficient

notice that he was subject to removal proceedings in which he

might be ineligible for cancellation of removal. 

AFFIRMED.

UNITED STATES v. REVELES-ESPINOZA 4039