                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

 UNITED STATES OF AMERICA,                        No. 15-50559
              Plaintiff-Appellee,
                                                   D.C. No.
                    v.                        3:15-cr-00129-GPC

 ALEJANDRO VERDUZCO-RANGEL,
          Defendant-Appellant.                      OPINION


        Appeal from the United States District Court
          for the Southern District of California
        Gonzalo P. Curiel, District Judge, Presiding

            Argued and Submitted January 8, 2018
                    Pasadena, California

                         Filed March 9, 2018

  Before: Milan D. Smith, Jr. and Michelle T. Friedland,
 Circuit Judges, and Jed S. Rakoff, * Senior District Judge.

                    Opinion by Judge Rakoff




     *
       The Honorable Jed S. Rakoff, Senior United States District Judge
for the Southern District of New York, sitting by designation.
2           UNITED STATES V. VERDUZCO-RANGEL

                           SUMMARY **


                           Criminal Law

    The panel affirmed a conviction under 8 U.S.C. § 1326
for attempting to reenter the United States after a prior
removal, in a case in which the defendant was removed in
2004 under 8 U.S.C. § 1227(a)(2)(A)(iii), a provision of the
Immigration and Nationality Act that authorized removal if
an alien had committed an “aggravated felony,” as defined
by 8 U.S.C. § 1101(a)(43)(B).

    The aggravated felony on which the Government relied
was the defendant’s prior conviction of felony possession of
methamphetamine in violation of California Health & Safety
Code section 11378. Recognizing that section 11378 is
divisible as to which substance the defendant was convicted
of actually trafficking, and that courts can therefore look to
underlying records to determine whether a conviction was
for a federally banned substance, the panel noted that the
defendant’s 2004 indictment and plea agreement establish
that he was convicted of trafficking methamphetamine,
which is a controlled substance under both California and
federal law.

    The panel rejected as irrelevant the defendant’s
argument that his California conviction is not categorically
an aggravated felony because section 11378 is broader than
federal law as to defendants’ beliefs about the kind of
substance in which they were trafficking. The panel
explained that a section 11378 conviction is an aggravated


    **
       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. VERDUZCO-RANGEL                  3

felony under the first route laid out in Rendon v. Mukasey,
520 F.3d 967 (9th Cir. 2008), at least where, as here, the
defendant was trafficking a substance that is also controlled
by federal law; and that the panel thus need not consider
whether the defendant’s conviction would also qualify as an
aggravated felony under the second route identified in
Rendon. The panel wrote that because section 11378 has a
trafficking element and requires a sufficiently culpable state
of mind, section 11378 is a drug trafficking aggravated
felony under § 1101(a)(43)(B) where the record of
conviction establishes that the substance involved is
federally controlled. The panel thus concluded that removal
under § 1227(a)(2)(A)(iii) based on such a conviction under
section 11378 is not fundamentally unfair.


                        COUNSEL

Ellis M. Johnston III (argued), Clarke Johnston Thorp &
Rice APPC, San Diego, California, for Defendant-
Appellant.

Mark R. Rehe (argued), Assistant United States Attorney;
Laura E. Duffy, United States Attorney; Helen H. Hong,
Assistant United States Attorney, Chief, Appellate Section,
Criminal Division; United States Attorney’s Office, San
Diego, California; for Plaintiff-Appellee.


                         OPINION

RAKOFF, Senior District Court Judge:

    Defendant-Appellant Alejandro Verduzco-Rangel, an
alien, appeals his conviction under 8 U.S.C. § 1326 for
4         UNITED STATES V. VERDUZCO-RANGEL

attempting to reenter the United States after a prior removal.
Verduzco was removed in 2004 under 8 U.S.C.
§ 1227(a)(2)(A)(iii), a provision of the Immigration and
Nationality Act (“INA”) that authorized removal if an alien
had committed an “aggravated felony,” as defined by
§ 1101(a)(43)(B). The aggravated felony on which the
Government relied was Verduzco’s prior conviction of
felony possession for sale of methamphetamine in violation
of California Health & Safety Code section 11378. Verduzco
now argues that this conviction was not in fact an aggravated
felony, rendering his removal invalid and requiring reversal
of his recent conviction. For the reasons that follow, we
disagree, reaffirm that a conviction under section 11378 is
an aggravated felony for purposes of § 1227(a)(2)(A)(iii)
where, as here, the record of conviction establishes that the
substance involved was federally controlled, and affirm
Verduzco’s conviction.

    We review de novo Verduzco’s collateral attack on his
2004 removal. United States v. Aguilera-Rios, 769 F.3d 626,
629 (9th Cir. 2014). To prevail on this collateral attack,
Verduzco must demonstrate that (1) he exhausted all
available administrative remedies, (2) his removal
proceeding deprived him of an opportunity for judicial
review, and (3) the entry of his removal order was
“fundamentally unfair.” 8 U.S.C. § 1326(d). For purposes of
this appeal, the Government concedes the first two prongs,
so the only question is whether the removal was
fundamentally unfair. A removal order is fundamentally
unfair if the relevant immigration laws did not in fact
authorize deportation. See Aguilera-Rios, 769 F.3d at 630.

     The Supreme Court has decreed that courts should
initially employ a “categorical approach” to determine
whether a state offense is an aggravated felony under the
INA. See Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015).
          UNITED STATES V. VERDUZCO-RANGEL                   5

Under this approach, a defendant’s actual conduct is
irrelevant; rather, “the adjudicator must ‘presume that the
conviction rested upon nothing more than the least of the acts
criminalized’ under the state statute.” Id. (quoting
Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013)). Where,
however, statutes “contain several different crimes, each
described separately”—a situation commonly referred to as
“divisibility”—courts may “determine which particular
offense the noncitizen was convicted of” by examining a
limited set of documents underlying the conviction.
Moncrieffe, 569 U.S. at 191; see also Shepard v. United
States, 544 U.S. 13, 26 (2005) (listing permissible
documents). The court then must determine whether the
defendant’s specific conviction can be categorized as an
aggravated felony. Moncrieffe, 569 U.S. at 191.

    The INA defines “aggravated felony” to include a host
of offenses, conviction for any one of which subjects certain
aliens to removal from the United States. 8 U.S.C.
§ 1101(a)(43). Among these offenses is the “drug trafficking
aggravated felony,” which is defined as “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).” Id. § 1101(a)(43)(B). This definition
creates two possible routes for a state drug felony to qualify
as a drug trafficking aggravated felony:

       First, under the phrase “illicit trafficking in a
       controlled substance,” a state drug crime is an
       aggravated felony “if it contains a trafficking
       element.” Second, under the phrase
       “including a drug trafficking crime (as
       defined in section 924(c) of Title 18),” a state
       drug crime is an aggravated felony if it would
       be punishable as a felony under the federal
       drug laws.
6           UNITED STATES V. VERDUZCO-RANGEL

Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir. 2008)
(quoting Salviejo-Fernandez v. Gonzales, 455 F.3d 1063,
1066 (9th Cir. 2006)); see also Lopez v. Gonzales, 549 U.S.
47, 57 (2006) (“[I]f [a defendant’s] state crime actually fell
within the general term ‘illicit trafficking,’ the state felony
conviction would count as an ‘aggravated felony,’ regardless
of the existence of a federal felony counterpart . . . .”).

    California’s statute is not a perfect categorical match
under either route because, although California’s list of
controlled substances is nearly identical to those contained
in the federal statutes and schedules that the INA
references, 1 California law also criminalizes trafficking in a
few obscure substances that federal law does not, such as
chorionic gonadotropin (a performance enhancing drug also
banned in many sports). See Coronado v. Holder, 759 F.3d
977, 983 n.1 (9th Cir. 2014). However, section 11378 is
divisible as to which substance the defendant was convicted
of actually trafficking, see, e.g., United States v. Vega-Ortiz,
822 F.3d 1031, 1035 (9th Cir. 2016), so courts can look to
underlying records to determine whether a conviction was
for a federally banned substance and thus qualifies as an
aggravated felony for purposes of federal law. Verduzco’s
2004 indictment and plea agreement establish that he was
convicted of trafficking methamphetamine, which is a
controlled substance under both California and federal law.



    1
      21 U.S.C. § 802 defines “controlled substance” as “a drug or other
substance, or immediate precursor, included in schedule I, II, III, IV, or
V of part B of this subchapter.” Id.§ 802(6). 18 U.S.C. § 924 defines a
“drug trafficking crime” as “any felony punishable under the Controlled
Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances
Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title
46.” Id. § 924(c)(2).
          UNITED STATES V. VERDUZCO-RANGEL                   7

    Verduzco nonetheless argues that his California
conviction is not categorically an aggravated felony because
section 11378 remains broader than federal law as to
defendants’ beliefs about the kind of substance in which they
were trafficking. Under federal law, a person actually selling
cocaine who thought he was selling baking soda does not
possess the required mens rea to be guilty of drug trafficking.
See McFadden v. United States, 135 S. Ct. 2298, 2304
(2015). Under section 11378, defendants can be found guilty
even if they were mistaken about what specific substance
was being trafficked, as long as the substance in which they
intended to traffic is in fact controlled under California law.
See People v. Romero, 64 Cal. Rptr. 2d 16, 23 (Ct. App.
1997) (affirming conviction of defendant who sold cocaine
that he thought was marijuana). This means that a person
who believed she was trafficking in chorionic gonadotropin
but was in fact trafficking in methamphetamine would
violate California law but not federal law. Verduzco argues
that section 11378 is thus not categorically a drug trafficking
crime under the second route laid out in Rendon.

    Rather than contesting this point, the Government argues
that it is irrelevant because a conviction under section 11378
is an aggravated felony under the first route, at least where,
as here, the defendant was trafficking a substance
(methamphetamine) that is also controlled by federal law.
We agree, and thus need not consider whether Verduzco’s
conviction would also qualify as an aggravated felony under
the second route identified in Rendon. Indeed, Rendon itself
held that “possession of a controlled substance with the
intent to sell” under Kansas law “contains a trafficking
element and is an aggravated felony on that basis.” 520 F.3d
at 976 & n.7.

    Verduzco counters that (1) Rendon did not address what
state of mind federal law requires a state statute to have for
8           UNITED STATES V. VERDUZCO-RANGEL

a conviction under that statute to be an aggravated felony
under the first route, 2 and (2) that the phrase “illicit
trafficking” in § 1101(a)(43)(B) incorporates the federal
law’s scienter requirement that the substance in which the
defendant intends to traffic be a substance controlled by
federal law. But there is no good reason to suppose that,
when Congress defined “aggravated felony” in the INA to
include “illicit trafficking in a controlled substance,” it
meant to implicitly incorporate such a requirement. Indeed,
the plain meaning of the statutory language is to the contrary.
If the first route were to require (1) a trafficking element,
(2) the actual involvement of a drug that is banned federally,
and (3) that federal law control the substance in which the
defendant intended to traffic, then it would cover only drug
trafficking crimes punishable as felonies under federal
law—exactly what the second route already encompasses. In
addition to rendering the statute redundant, Verduzco’s
proposed reading ignores the word “including,” which
suggests that what follows is a subset of what preceded, and
not that the two are coextensive. See Herb’s Welding, Inc. v.
Gray, 470 U.S. 414, 423 n.9 (1985).

    Under Rendon’s first route, we need not consider
whether a state drug crime would also be punishable under
federal law. See 520 F.3d at 974. Rather, it is sufficient that
the state statute contains an “illicit trafficking” element,
which section 11378 clearly does. See id. at 976 & n.7. To
the extent “illicit trafficking” in route one incorporates a
mens rea requirement, section 11378 suffices because it


    2
      As a general matter, all federal criminal statutes are presumed to
incorporate a requirement that the defendant act with a culpable state of
mind unless the statute expressly indicates otherwise. See Morissette v.
United States, 342 U.S. 246, 250 (1952); United States v. X-Citement
Video, Inc., 513 U.S. 64, 72 (1994).
             UNITED STATES V. VERDUZCO-RANGEL                            9

requires that the defendant intend to possess for sale a
controlled substance and actually possess for sale a
controlled substance, and that both the intended substance
and the actual substance be controlled. This is, in fact, the
same mens rea required under federal law. See McFadden,
135 S. Ct. at 2304. That Congress would impose consistent
deportation consequences for those who engage in equally
culpable activity is hardly surprising and is consistent with a
generic understanding of “drug trafficking.” 3

    Because section 11378 has a trafficking element and
requires a sufficiently culpable state of mind, section 11378
is a drug trafficking aggravated felony under
§ 1101(a)(43)(B) where the record of conviction establishes
that the substance involved is federally controlled. Thus,
removal under § 1227(a)(2)(A)(iii) based on such a
conviction under section 11378 is not fundamentally unfair.
Verduzco’s conviction is therefore AFFIRMED.




    3
       Our recent decision in United States v. Valdivia-Flores, 876 F.3d
1201 (9th Cir. 2017), is not to the contrary. There, we held that
Washington State’s possession with intent to distribute statute was not a
drug trafficking aggravated felony. The Washington statute criminalized
more conduct than its federal analogs because one could be convicted
under Washington law as an aider and abettor by either knowingly or
intentionally assisting a principal, whereas federal law only criminalized
intentionally assisting a principal. Id. at 1207-08. Intentionally abetting
the commission of a crime involves a more culpable state of mind than
knowingly doing so, and it is unlikely that Congress intended the generic
“drug trafficking” listed in the INA to reach the less culpable conduct
that the Washington statute criminalized. Here, by comparison,
knowingly possessing for sale a substance controlled only by state law
involves an equally culpable state of mind as knowingly possessing for
sale a substance controlled by federal law.
