NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

 v.

CARLOS ARMANDO ESCOBAR, 

Defendant-Appellant.

No. 15-50228

D.C. No.

3:12-cr-05213-JAH-1

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

John A. Houston, District Judge, Presiding

Argued and Submitted June 9, 2016

Pasadena, California

Before: GOULD and HURWITZ, Circuit Judges and RESTANI,** Judge.

Carlos Armando Escobar was convicted after a jury trial of illegal presence in 

the United States in violation of 8 U.S.C. § 1326. He challenges the imposition of 

a 16-level enhancement under United States Sentencing Guideline (“U.S.S.G.”) 

 

* This disposition is not appropriate for publication and is not precedent except 

as provided by Ninth Circuit Rule 36-3.

** The Honorable Jane A. Restani, Judge for the United States Court of 

International Trade, sitting by designation.

FILED

JUN 17 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 

§ 2L1.2 based on a conviction for possession of a controlled substance for sale in 

violation of California Health & Safety Code § 11378. He also challenges the 

district court’s imposition after a prior remand of an additional year of supervised 

release to his original sentence. We affirm in part, vacate in part, and remand with 

instructions. 

1. In his prior appeal, Escobar argued that § 11378 is overbroad and 

indivisible both as to drug type and intent, and therefore the modified categorical 

approach cannot be employed to determine whether his prior conviction supports the 

§ 2L1.2 enhancement. We concluded that “California Health & Safety Code 

§ 11378 is divisible within the meaning of Descamps v. United States, 133 S. Ct. 

2276 (2013), and therefore subject to the modified categorical approach.” United 

States v. Escobar, 594 F. App’x 920, 922 (9th Cir. 2014) (alterations omitted). But, 

we held that the district court “erred by relying solely on the description of Escobar’s 

prior conviction listed in the presentence report,” and remanded “to provide the 

Government with the opportunity to submit acceptable evidence of the factual basis 

of the prior conviction.” Id. On remand, the district court concluded that the 

documents of conviction unambiguously established that Escobar was convicted of 

possession for sale of methamphetamine.

2. In this second appeal, Escobar again argues that § 11378 is indivisible 

as to both drug type and intent, and that his conviction under that California statute 
 3 

therefore cannot serve as the basis for the § 2L1.2 enhancement. Having rejected 

this argument in Escobar’s prior appeal, see Escobar, 594 F. App’x at 922, we 

decline the invitation to revisit that ruling. See also United States v. Vega-Ortiz, -

-- F.3d ---, 2016 WL 2610177, at *4 (9th Cir. 2016). 

3. We apply the modified categorical analysis to determine whether 

Escobar’s prior conviction qualifies as a “drug trafficking offense” under U.S.S.G. 

§ 2L1.2. “[T]he term ‘controlled substance,’ as used in the ‘drug trafficking 

offense’ definition in U.S.S.G. § 2L1.2, means those substances listed in” the 

Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801-904. United States v. LealVega, 680 F.3d 1160, 1167 (9th Cir. 2012). “Our inquiry is limited to ‘the charging 

document, the terms of a plea agreement or transcript of colloquy 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.’” Id. at 1168 (quoting 

Shepard v. United States, 544 U.S. 13, 26 (2005)). Count 2 of the California felony 

complaint charged Escobar with possession for sale of methamphetamine. The 

abstract of judgment and plea form confirm that Escobar was convicted on Count 2. 

Methamphetamine is a “controlled substance” under the CSA. 21 U.S.C. 

§§ 802(6), 812. The district therefore properly imposed the 16-level enhancement. 

See Leal-Vega, 680 F.3d at 1168-69. The fact that Escobar entered a plea under 

People v. West, 477 P.2d 409 (Cal. 1970), is immaterial, because “when read in 
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conjunction with the Complaint,” it is “clear the controlled substance at issue was 

methamphetamine.” United States v. Valdavinos-Torres, 704 F.3d 679, 684 (9th 

Cir. 2012); see also Cabantac v. Holder, 736 F.3d 787, 794 (9th Cir. 2012) (per 

curiam) (rejecting an identical argument). 

4. Escobar argues that, even if he was convicted of possession for sale of 

methamphetamine, the Shepard documents do not establish that he knew the drug 

he possessed was methamphetamine, as opposed to some hypothetical drug banned 

in California but not by the CSA, and his California conviction therefore does not 

establish that his conduct violated federal law. However, Escobar failed to present 

this argument to the district court after our previous remand, which directed the court 

to analyze the Shepard documents to determine “the factual basis of the prior 

conviction.” Escobar, 594 F. App’x at 922. Therefore, the argument is forfeited. 

See Hillis v. Heineman, 626 F.3d 1014, 1019 (9th Cir. 2010).

5. The district court imposed an additional year of supervised release on 

resentencing. The court did not discuss the basis for this change, which appears to 

have been inadvertent. Thus, although we affirm Escobar’s sentence in all other 

respects, we vacate the portion of the sentence providing for three years of postincarceration supervised release and remand to the district court with instructions to 

impose the original two-year term. 

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.