FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DALADIER MURILLO-ALVARADO,

AKA Domingo Arredondo, AKA

Daladier Murillo, AKA Daladier

Alvarado Murillo,

Defendant-Appellant.

No. 14-50354

D.C. No.

5:14-cr-00014-

VAP-1

OPINION

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, Chief District Judge, Presiding

Submitted July 8, 2016*

Pasadena, California

Filed December 4, 2017

*

 The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. MURILLO-ALVARADO

Before: Richard R. Clifton, Michelle T. Friedland, Circuit

Judges, and Edward M. Chen,** District Judge.

Opinion by Judge Clifton

SUMMARY***

Criminal Law

Affirming a sentence, the panel held that section 11351 of

the California Health and Safety Code (possession or

purchase for sale of designated controlled substance) is

divisible –as discussed in Mathis v. United States, 136 S. Ct.

2243 (2016) –as to its controlled substance requirement, such

that a conviction under that statute may, applying the

modified categorical approach, be held to be a drug

trafficking offense under the United States Sentencing

Guidelines.

Applying the modified categorical approach, the panel

held that the government established, through judicially

noticeable documents, that the defendant’s § 11351

conviction was for a substance, cocaine, that was a controlled

substance under federal law, and that the district court

therefore properly applied a 16-level enhancement pursuant

to USSG § 2L1.2(b)(1)(A) (2014) (amended 2016).

** The Honorable Edward M. Chen, United States District Judge for

the Northern District of California, sitting by designation.

*** 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. MURILLO-ALVARADO 3

COUNSEL

James H. Locklin, Deputy Federal Public Defender; HilaryL.

Potashner, Federal Public Defender; Office of the Federal

Public Defender, Los Angeles, California.

Abigail W. Evans, Assistant United States Attorney;

Lawrence S. Middleton, Chief, Criminal Division; United

States Attorney’s Office, Riverside, California; for PlaintiffAppellee.

OPINION

CLIFTON, Circuit Judge:

The primary question presented by this appeal is whether

section 11351 of the California Health and Safety Code

(“Possession or purchase for sale of designated controlled

substances”) is a divisible statute, as discussed in Mathis v.

United States, 136 S. Ct. 2243, 2249 (2016), such that a

conviction under that statute may be held to be a drug

trafficking offense under the United States Sentencing

Guidelines (“USSG” or “Sentencing Guidelines”), applying

the modified categorical approach. We previously held that

section 11351 is divisible with regard to its controlled

substance requirement. United States v. Torre-Jimenez,

771 F.3d 1163, 1167 (9th Cir. 2014). In Guevara v. United

States, 136 S. Ct. 2542 (2016), however, the Supreme Court

vacated and remanded a decision by this court, relying on that

precedent, that section 11351 is divisible, directing us to

reconsider the issue in light of Mathis.
4 UNITED STATES V. MURILLO-ALVARADO

In United States v. Martinez-Lopez, 864 F.3d 1034 (9th

Cir. 2017) (en banc), we held that section 11352 of the

California Health and Safety Code (“Transportation, sale,

giving away, etc. of designated controlled substances”), a

very similar statute, is divisible under Mathis. Id. at 1039–41.

Based on the same reasoning we applied in that decision, we

conclude that section 11351 is similarly divisible. Because

the government established that Murillo-Alvarado was

previously convicted of possessing cocaine for sale, which

qualifies as a drug trafficking offense under the Sentencing

Guidelines, we affirm.

I. Background

In 2001, Defendant-AppellantDaladier Murillo-Alvarado

was convicted of a violation of section 11351. Specifically,

in count 1 of a criminal information, he was charged with

“violation of Section 11351 of the [California] Health and

Safety Code (POSSESSION FOR SALE OF A

CONTROLLED SUBSTANCE), a FELONY.” Count 1

specified that “[o]n or about May 29, 2001, [MurilloAlvarado] . . . did willfully and unlawfully possess for sale

and purchase for sale a controlled substance, to wit,

COCAINE.” Murillo-Alvarado pled guilty to count 1.

Murillo-Alvarado was later deported but then returned to

the United States without authorization. In 2013, immigration

authorities found Murillo-Alvarado in California. He was

indicted on a charge of illegal reentry in violation of 8 U.S.C.

§ 1326. The indictment also charged that he had been

previously convicted for the violation of section 11351

described above. Murillo-Alvarado pled guilty to the charge

of illegal reentry, without a plea agreement.
UNITED STATES V. MURILLO-ALVARADO 5

The district court sentenced Murillo-Alvarado to

imprisonment for 60 months. In determining the sentence, the

district court concluded, over objection byMurillo-Alvarado,

that his prior conviction under section 11351 was for a “drug

trafficking offense,” which increased his offense level by

16 levels pursuant to U.S. Sentencing Guidelines Manual

§ 2L1.2(b)(1)(A) (U.S. Sentencing Comm’n 2014) (amended

2016).

Murillo-Alvarado timely appealed.

II. Discussion

At the time that Murillo-Alvarado was sentenced, the

Sentencing Guidelines provided for sentence enhancements

when a defendant had previously been convicted of various

predicate offenses under federal, state, or local law, including

a “drug trafficking offense.” See, e.g., USSG

§ 2L1.2(b)(1)(A). The Sentencing Guidelines define a “drug

trafficking offense” to be:

an offense under federal, state, or local law

that prohibits the manufacture, import, export,

distribution, or dispensing of, or offer to sell

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.

Id. § 2L1.2, Application Notes (1)(B)(iv).

Section 11351 specifies punishment for “every person

who possesses for sale or purchases for purposes of sale . . .
6 UNITED STATES V. MURILLO-ALVARADO

any controlled substance” specified in a list of crossreferenced code provisions. Cal. Health & Safety Code

§ 11351.1 To be covered under the section, the involved

substance must be one of the substances on one of the crossreferenced lists.

We apply a three-step analysis to determine whether a

prior conviction under state law qualifies as a predicate drug

trafficking offense under the Sentencing Guidelines. First, we

ask whether the state law is a categorical match with a federal

drug trafficking offense. See Taylor v. United States, 495 U.S.

575, 599–600 (1990). At this step, we look only to the

“statutory definitions” of the corresponding offenses. Id. at

600. If a state law “proscribes the same amount of or less

conduct than” that qualifying as a federal drug trafficking

offense, then the two offenses are a categorical match. United

States v. Hernandez, 769 F.3d 1059, 1062 (9th Cir. 2014). In

that scenario, a conviction under state law automatically

qualifies as a predicate drug trafficking offense, ending our

analysis. See Taylor, 495 U.S. at 599.

1

 Section 11351 reads, in full:

Except as otherwise provided in this division, every

person who possesses for sale or purchases for purposes

of sale (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, shall be punished by imprisonment pursuant to

subdivision (h) of Section 1170 of the Penal Code for

two, three, or four years.
UNITED STATES V. MURILLO-ALVARADO 7

Second, if the state law is not a categorical match, we ask

whether the statute of prior conviction is divisible. Mathis,

136 S. Ct. at 2249. A statute is divisible when it “list[s]

elements in the alternative, and thereby define[s] multiple

crimes.” Id.

If the statute of prior conviction is divisible, the third step

is to determine whether the conviction is a match to the

federal drug trafficking offense under the modified

categorical approach. At this step, we examine judicially

noticeable documents of conviction “to determine which

statutory phrase was the basis for the conviction.” Descamps

v. United States, 133 S. Ct. 2276, 2285 (2013) (quoting

Johnson v. United States, 559 U.S. 133, 144 (2010)). In this

case, the question would be whether the conviction of

Murillo-Alvarado involved a substance that appeared on the

federal list of controlled substances. If so, the prior conviction

may serve as a predicate offense under the Sentencing

Guidelines. See Shepard v. United States, 544 U.S. 13, 16

(2005).

A. The Divisibility of Section 11351

The parties do not dispute that in this case the state law at

issue, section 11351, is not a categorical match with a federal

drug trafficking offense. We have already held that section

11351 is not a categorical match with a federal drug

trafficking offense because California’s list of controlled

substances includes some that are not on the federal list.

United States v. Leal-Vega, 680 F.3d 1160, 1162 (9th Cir.

2012). Thus, our focus here is whether, at step two of the

analysis, section 11351 is a divisible statute.
8 UNITED STATES V. MURILLO-ALVARADO

A statute is not divisible when it “contains . . . alternative

means by which a defendant might commit the same crime.”

Martinez-Lopez, 864 F.3d at 1039 (citing Mathis, 136 S. Ct.

at 2256). A statute is divisible when it “list[s] elements in the

alternative, and thereby define[s] multiple crimes.” Mathis,

136 S. Ct. at 2249. We review the divisibility of a statute de

novo. Almanza-Arenas v. Lynch, 815 F.3d 469, 477 (9th Cir.

2016) (en banc).

Murillo-Alvarado argues that the controlled substance

requirement in section 11351 is not divisible because the

controlled substances enumerated in the cross-referenced

statutes are means by which a defendant commits a singular

controlled-substance offense, not elements of separate

crimes.2In its supplemental brief, the Government contends

that Martinez-Lopez requires us to hold that those controlled

substances are elements, and that the controlled substance

requirement is therefore divisible.

We addressed a very similar question in our recent en

banc opinion in Martinez-Lopez, in which we held that

California Health and Safety Code section 11352 was

divisible. See Martinez-Lopez, 864 F.3d at 1039–41. Section

11352 contains a list of cross-referenced substances nearly

identical to the list in section 11351. The list in section 11351

differs from the list in section 11352 only in that section

11352 includes cocaine base and section 11351 does not.

2 Murillo-Alvarado has not argued that the actus reus requirement in

section 11351 is not divisible. Therefore, any such argument is waived.

See Miller v. Fairchild Indus., 797 F.2d 727, 738 (9th Cir. 1986) (noting

that this court “will not ordinarily consider matters on appeal that are not

specifically and distinctly argued in appellant’s opening brief”) (citing

Int’l Union of Bricklayers and Allied Craftsmen Local No. 20 v. Martin

Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985)).
UNITED STATES V. MURILLO-ALVARADO 9

Compare Cal. Health & Safety Code § 11351 with id.

§ 11352(a) (listing the same subsections and subparagraphs,

with one addition, subparagraph (f)(1) of Section 11054); see

id. § 11054(f)(1) (cocaine base). Thus, the list in section

11351 is just a subset of the list in section 11352.

Our reasoning in Martinez-Lopez guides us here.3

In

Martinez-Lopez, we noted that In re Adams, 536 P.2d 473

(Cal. 1975), and its progeny establish that “defendants are

routinely subjected to multiple convictions under a single

[California] statute for a single act as it relates to multiple

controlled substances.” Martinez-Lopez, 864 F.3d at 1040.

Relevantly here, in People v. Monarrez, 78 Cal. Rptr. 2d 247

(Ct. App. 1998), the California court of appeal upheld

separate convictions for possession of cocaine for sale and

possession of heroin for sale under section 11351 based on a

single incident. Id. at 248. This holding establishes that the

controlled substances incorporated in section 11351 are

elements establishing separate offenses and not means by

which to commit the same offense.

Further, similar to section 11352, the jury instructions for

section 11351 “require a jury to fill in a blank identifying ‘a

controlled substance’—i.e.,onlyone—demonstrating that the

3

Indeed, our opinion in that case referred to the Supreme Court’s

remand of Guevara, a case which involved a prior conviction under

section 11351, and stated that “we respond to the Supreme Court’s

instruction by revisiting the entire line of cases.” Martinez-Lopez,

864 F.3d at 1036 n.1. We have already relied on Martinez-Lopez to hold

that two other sections of the California Health and Safety Code are

divisible with respect to their controlled substance requirements. See

United States v. Ocampo-Estrada, 873 F.3d 661, 668 (9thCir. 2017) (Cal.

Health & SafetyCode § 11378); United States v. Barragan, 871 F.3d 689,

715 (9th Cir. 2017) (Cal. Health & Safety Code § 11379).
10 UNITED STATES V. MURILLO-ALVARADO

jury identifyand unanimously agree on a particular controlled

substance.” Martinez-Lopez, 864 F.3d at 1041; see Judicial

Council of California Criminal Jury Instructions CALCRIM

No. 2302 (2017 edition). The jury instructions thus treat the

particular controlled substance as an element, not a means.

In light of how it is interpreted by California courts, we

hold that section 11351—like section 11352—is divisible as

to its controlled substance requirement.

B. Application of the Modified Categorical Approach

Because section 11351 is a divisible statute, we now turn

to step three, in which we examine judicially noticeable

documents of prior conviction to determine whether it is clear

which statutory phrase was the basis for the conviction. If the

defendant pled or was found guilty of the elements

constituting a federal drug trafficking offense, the prior state

conviction may serve as a predicate offense under the

Sentencing Guidelines.

Murillo-Alvarado argues that, at step three, the

government failed to meet its burden to prove by clear and

convincing evidence thatMurillo-Alvarado’s prior conviction

was a “drug trafficking offense.” See United States v.

Valdavinos-Torres, 704 F. 3d 679, 691 (9th Cir. 2012). “We

review de novo the classification of a defendant’s prior

conviction for purposes of applying the Sentencing

Guidelines.” United States v. Coronado, 603 F.3d 706, 708

(9th Cir. 2010) (citation omitted).

In this case the question is whether the government

established that Murillo-Alvarado’s section 11351 conviction

was for a substance that was a controlled substance under
UNITED STATES V. MURILLO-ALVARADO 11

federal law. The government presented a certified copy of the

guilty plea form which contained a handwritten factual basis

in which Murillo-Alvarado admitted that on May 29, 2001, he

“possessed cocaine to be used for purposes of sale.” The

government also provided certified copies of the criminal

information, the court’s minute order, and the abstract of

judgment.

“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 v.

Holder, 759 F.3d 977, 986 (9th Cir. 2014) (citation omitted).

Here, the government provided reliable documents that

clearly specified that Murillo-Alvarado pled guilty to count 1

of the criminal information. The guilty plea form stated that

Murillo-Alvarado pled guilty to count “1 of the information.”

The form further specified that count 1 was for a violation of

“H&S 11351.” Likewise, the court’s minute order reflected

that Murillo-Alvarado pled guilty to “11351 HS as charged in

count 1” of the “[o]riginal information.” The abstract of

judgment stated that Murillo-Alvarado pled guilty to count

“1A” for violating “HS” “11351.” All of these sources

indicated a plea date of December 7, 2001, and they all

referred only to a single count. Count 1 of the information

charged that, on May 29, 2001, Murillo-Alvarado

“possess[ed] for sale and purchase[d] for sale a controlled

substance, to wit, COCAINE.” Thus, these documents

conclusively established that Murillo-Alvarado pled guilty to

a May 29, 2001 offense involving the possession of cocaine

for purposes of sale. It is undisputed that cocaine was and is

a controlled substance under federal law.
12 UNITED STATES V. MURILLO-ALVARADO

Murillo-Alvarado argues that the abstract of judgment

created doubt about the plea because it referenced a plea to

count “1A” rather than count “1.” He cites Medina-Lara v.

Holder, 771 F.3d 1106, 1113–15 (9th Cir. 2014), where we

held that the record was insufficient to establish that the plea

was to the offense originally charged. In that case the

government presented only two documents to meet its

burden: (1) an amended complaint alleging in count “003”

that the defendant possessed cocaine for sale, and (2) an

abstract of judgment reflecting that the defendant pled guilty

to count “3A,” without identifying the controlled substance

involved. Id. at 1113–14. The immigration judge and

government attorney openly speculated that the original

charge had been amended, but the government failed to

produce additional documents to clarify the record. Id. at

1114, 1118. “Against this backdrop, we [were] hard-pressed

to say that there [was] a ‘clear and convincing’ link between

the ‘3A’ in the abstract and the ‘3’ in the amended

complaint.” Id. at 1115. In reaching that result, however, we

acknowledged other cases where the record clearly reflected

that the plea was to a particular count “as charged in the

information.” Id. at 1113 (quoting United States v. Vidal,

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

This case is different because the district court here had

a more substantial record. The court had a handwritten factual

basis on the guilty plea form in which Murillo-Alvarado

admitted that on May 29, 2001, he possessed cocaine to be

used for purposes of sale. The guilty plea form and the minute

order both clearly indicated that Murillo-Alvarado was

pleading guilty to count 1 as charged in the information.

Count 1 was the only count, and it expressly charged MurilloAlvarado with possessing cocaine for sale. Taken together,

the documents demonstrated that Murillo-Alvarado pled
UNITED STATES V. MURILLO-ALVARADO 13

guilty to possession of cocaine for sale, a drug trafficking

offense supporting the 16-level sentencing enhancement. The

reference to “1A” in the abstract of judgment does not,

standing alone, nullify those admissions or create sufficient

ambiguity.

III. Conclusion

California Health and Safety Code section 11351 is

divisible as to its controlled substance requirement. MurilloAlvarado’s specific conviction involving cocaine under

section 11351 qualifies as a drug trafficking offense for

purposes of the Sentencing Guidelines. The trial court

properly applied a 16-level enhancement in its Sentencing

Guidelines calculation.

AFFIRMED.