United States of America v. Ulises Copas-Villegas

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
ULISES COPAS-VILLEGAS,
Defendant–Appellant.
Nos. 13-30020 & 13-30025
D.C. Nos. 2:08-CR-21-RHW &
2:12-CR-21-RHW
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, District Judge, Presiding
Submitted March 7, 2014 **
Portland, Oregon
Before: TROTT and W. FLETCHER, Circuit Judges, and BLOCK, Senior District
Judge.***
FILED
MAR 27 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.

-- 1 of 3 --

Ulises Copas-Villegas appeals his conviction for illegal reentry, see 8 U.S.C.
§ 1326, as well as the revocation of his supervised release based on the same
conduct. He argues that the removal proceeding underlying both the conviction
and the revocation did not comport with due process because he was not advised of
the possibility of voluntary departure.
Copas-Villegas was ordered removed based on a 2002 conviction for a
violation of Washington Revised Code § 69.50.401(a)(1)(i) (2001), which makes it
unlawful “for any person to manufacture, deliver, or possess with intent to
manufacture or deliver, a controlled substance . . . classified in Schedule I or II
which is a narcotic drug.” Because an alien convicted of an aggravated felony is
not eligible for voluntary departure, see 8 U.S.C. § 1229c(a)(1), Copas-Villegas’s
due-process challenge depends entirely on whether his 2002 conviction was an for
“aggravated felony” within the meaning of 8 U.S.C. § 1101(a)(43)(B).
“[A] state drug crime is an aggravated felony if it would be punishable as a
felony under the federal drug laws.” Rendon v. Mukasey, 520 F.3d 967, 974 (9th
Cir. 2008) (citing Lopez v. Gonzales, 549 U.S. 47, 52-53 (2006)). Copas-Villegas
argues that § 69.50.401(a)(1)(i) proscribes solicitation, while the federal drug laws
do not.
2

-- 2 of 3 --

“To determine whether a past conviction qualifies as an aggravated felony,
courts use either the categorical or modified categorical approach.” Murillo-Prado
v. Holder, 735 F.3d 1152, 1156 (9th Cir. 2013) (en banc). Assuming arguendo
that § 69.50.401(a)(1)(i) is categorically overbroad because it proscribes
solicitation, but see In re Hopkins, 976 P.2d 616, 617 (Wash. 1999), we
nonetheless conclude that Copas-Villegas’s 2002 conviction was for an aggravated
felony under the modified categorical approach. In connection with his guilty plea,
Copas-Villegas submitted a written allocution describing his guilt “in [his] own
words”: “On Nov. 1, 2002, in King County, Washington, I did possess with intent
to deliver cocaine, knowing it was a controlled substance.” Thus, Copas-Villegas
admitted to actual possession with intent to deliver, which is unquestionably a
crime under the federal drug laws. See Parrilla v. Gonzales, 414 F.3d 1038, 1044
(9th Cir. 2005) (holding that documents may be considered under the modified
categorical approach “if specifically incorporated into the guilty plea or admitted
by a defendant”).
AFFIRMED.
3

-- 3 of 3 --