United States of America v. James Perry

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES PERRY,
Defendant - Appellant.
No. 13-50344
D.C. No. 3:13-cr-00512-LAB-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted December 8, 2014
Pasadena, California
Before: GRABER, GOULD, and CALLAHAN, Circuit Judges.
Defendant James Perry timely appeals his sentence of 85 months’
imprisonment following his guilty plea to importing cocaine into the United States,
in violation of 21 U.S.C. § 952. Reviewing de novo the district court’s
determination that Defendant qualifies as a "career offender" under U.S.S.G.
§ 4B1.1(a), we affirm.
FILED
DEC 23 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 Ninth Circuit Rule 36-3.

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1. Title 35 Pennsylvania Consolidated Statutes section 780-113(a)(30) is a
divisible statute within the meaning of Descamps v. United States, 133 S. Ct. 2276
(2013). United States v. Abbott, 748 F.3d 154, 158–59 (3d Cir. 2014). The cases
cited by Defendant are not to the contrary. See, e.g., Commonwealth v. Davis, 454
A.2d 612, 613 (Pa. Super. Ct. 1982) ("Appellant was charged with possession of
heroin. This offense requires proof that the substance was in the possession of the
appellant and that it was heroin." (emphases added)). Accordingly, we apply the
modified categorical approach. Medina-Lara v. Holder, 771 F.3d 1106, 1112 (9th
Cir. 2014).
2. The district court correctly concluded that, under the modified categorical
approach, Defendant "has at least two prior felony convictions of . . . a controlled
substance offense." U.S.S.G. § 4B1.1(a)(3). Defendant was convicted of violating
section 780-113(a)(30) in both 1999 and 2001, and both convictions involved a
federally controlled substance. Unlike in cases such as Medina-Lara, 771 F.3d at
1113–15, the relevant documents here are not ambiguous as to the controlled
substance. Finally, Defendant’s legal arguments are foreclosed by precedent. See
United States v. De La Torre-Jimenez, 771 F.3d 1163, 1168–69 (9th Cir. 2014)
(rejecting Defendant’s interpretation of United States v. Vidal, 504 F.3d 1072,
1087 (9th Cir. 2007) (en banc)); United States v. Valdavinos-Torres, 704 F.3d 679,
2

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689 (9th Cir. 2012) (rejecting Defendant’s interpretation of Young v. Holder, 697
F.3d 976 (9th Cir. 2012) (en banc)), cert. denied, 134 S. Ct. 1873 (2014).
AFFIRMED.
3

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