United States v. Murillo-Alvarado, 14-50354

• Citation: 876 F.3d 1022
• Decision Date: 08 July 2016
• Docket Number: No. 14-50354,14-50354
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daladier MURILLO-ALVARADO, AKA Domingo Arredondo, AKA Daladier Murillo, AKA Daladier Alvarado Murillo, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

876 F.3d 1022

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

United States Court of Appeals, Ninth Circuit.

Submitted July 8, 2016^* Pasadena, California

James H. Locklin, Deputy Federal Public Defender; Hilary L. 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 Plaintiff-Appellee.

Before: Richard R. Clifton, Michelle T. Friedland, Circuit Judges, and Edward M. Chen,^** District Judge.

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 , ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (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 , ––– U.S. ––––, 136 S.Ct. 2542, 195 L.Ed.2d 866 (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 .

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-Appellant Daladier 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, [Murillo-Alvarado] ... 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.

The district court sentenced Murillo-Alvarado to imprisonment for 60 months. In determining the sentence, the district court concluded, over objection by Murillo-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 ... any controlled substance" specified in a list of cross-referenced 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 cross-referenced 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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). At this step, we look only to the "statutory definitions" of the corresponding offenses. Id. at 600, 110 S.Ct. 2143. 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, 110 S.Ct. 2143.

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 , 570 U.S. 254, 133 S.Ct. 2276, 2285, 186 L.Ed.2d 438 (2013) (quoting Johnson v. United States , 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (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, 125 S.Ct. 1254, 161 L.Ed.2d 205 (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.

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.² In 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. Compare Cal. Health & Safety Code § 11351with 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 , 14 Cal.3d 629, 122 Cal.Rptr. 73, 536 P.2d 473 (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 , 66 Cal.App.4th 710, 78 Cal.Rptr.2d 247 (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...