United States v. Figueroa-Beltran

• Decision Date: 06 June 2018
• Docket Number: No. 16-10388,16-10388
• Citation: 892 F.3d 997
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gibran Richardo FIGUEROA–BELTRAN, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

892 F.3d 997

UNITED STATES of America, Plaintiff-Appellee,

v.Gibran Richardo FIGUEROA–BELTRAN, Defendant-Appellant

No. 16-10388

United States Court of Appeals, Ninth Circuit.

Filed June 6, 2018

ORDER

Johnnie B. Rawlinson, United States Circuit Judge, presidingThe issue for decision in this case is whether Nevada Revised Statute § 453.337, which criminalizes conduct related to certain controlled substances identified by reference to the Nevada Administrative Code, is divisible under federal law for the purpose of applying the federal sentencing guidelines.¹ This question of law is determinative of the matter pending before this court and we are not aware of any clearly controlling precedent in the existing decisions of the Nevada Supreme Court. Accordingly, pursuant to Rule 5 of the Nevada Rules of Appellate Procedure,² we respectfully request that the Nevada Supreme Court determine whether, under Nevada law, § 453.337 is divisible.

I. Factual and Procedural Background

In 2012, Gibran Figueroa-Beltran (Figueroa), a native of Mexico, was found in possession of one gram of cocaine and 5.8 grams of heroin during a traffic stop. He was convicted in the Eighth Judicial District Court of possession of a controlled substance with intent to sell in violation of § 453.337 and sentenced to 19 to 48 months' imprisonment. He was paroled approximately one year later, but subsequently arrested for selling a controlled substance, and removed to Mexico.

Within two years of his removal, Figueroa illegally reentered the United States, where he was once again arrested for selling a controlled substance. While those charges were pending, Figueroa was charged with 26 other counts of drug-related offenses, including receiving stolen property, receiving a stolen vehicle, being a prohibited person in possession of firearms, operating a place for the sale of controlled substances, possessing for sale Schedule I/II controlled substances, trafficking Schedule I controlled substances (28+ grams), conspiring to violate the federal Controlled Substances Act, and selling Schedule I or II controlled substances.

A federal grand jury later indicted Figueroa for being a deported alien found unlawfully in the United States, in violation of 8 U.S.C. § 1326.³ Figueroa pled guilty without a plea agreement and the district court imposed a low-end Guideline sentence of 41 months' imprisonment followed by a three-year term of supervised release. In calculating the 41-month sentence, the district court began with a base offense level of 8 and added a 16-level enhancement under United States Sentencing Guidelines (U.S.S.G.) § 2L1.2 due to Figueroa's 2012 conviction for possession of a controlled substance for sale. Figueroa objected to the enhancement, noting that his conviction for a violation of § 453.337 did not qualify as a drug trafficking offense.

Figueroa filed a timely appeal challenging the district court's application of the 16-level enhancement provided for in U.S.S.G. § 2L1.2.⁴

II. Governing Federal Law

Section 2L1.2 applied to defendants who "unlawfully enter[ed] or remain[ed] in the United States." U.S.S.G. § 2L1.2. At the time of Figueroa's sentencing on August 24, 2016, Guideline § 2L1.2(b)(1)(A) provided for a base offense level of 8, plus a 16-level enhancement if the defendant was "previously ... deported" and had a previous conviction for a "drug trafficking offense" with a sentence exceeding 13 months. Id. § 2L1.2(b)(1)(A). The commentary to Guideline § 2L1.2 defined a "drug trafficking offense" as:

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, cmt. app. n.l (B)(iv) (2015).

To assess whether a prior conviction under § 453.337 qualified as a drug trafficking offense under Guideline § 2L1.2, we employ a "three-step analysis." United States v. Martinez-Lopez , 864 F.3d 1034, 1038 (9th Cir. 2017) (en banc) (citation omitted). At the first step, "we ask whether [ § 453.337 ] is a categorical match with a federal drug trafficking offense." Id. (citation omitted). In so doing, "we look only to the statutory definitions of the corresponding offenses."⁵ Id. (citation and internal quotation marks omitted). If § 453.337"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," and the conviction under that statute "automatically qualifies as a predicate drug trafficking offense." Id. (citations and internal quotation marks omitted).

If § 453.337 is not a categorical match, we proceed to the second step of the analysis. At this step, "we ask whether [ § 453.337 ] is a divisible statute which sets out one or more elements of the offense in the alternative" and "thereby defines multiple crimes." Id. at 1038–39 (citations, alterations, and internal quotation marks omitted). A statute is not necessarily divisible because it is couched in terms of a disjunctive list. Rather than relying on the disjunctive-list articulation, we "consult authoritative sources of state law to determine whether a statute contains alternative elements defining multiple crimes or alternative means by which a defendant might commit the same crime." Id. at 1039 (citation and internal quotation marks omitted). If "(1) a state court decision definitively answers the question, or (2) the statute on its face resolves the issue," our analysis ends. Id. (citation, alterations, and internal quotation marks omitted).

The elements of a statute "are the constituent parts of a crime's legal definition—the things the prosecution must prove to sustain a conviction." Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) (citation and internal quotation marks omitted). In contrast, the means used to fulfill an element is "extraneous to the crime's legal requirements." Id. The facts underlying the means "need neither be found by a jury nor admitted by a defendant" for a conviction. Id. Our divisibility inquiry thus turns on whether the elements of a crime of conviction "are broader than those of a listed generic offense," without regard to "[h]ow a given defendant actually perpetrated the crime." Id. at 2251.

If § 453.337 is divisible, we "proceed to the third step in our analysis and apply the modified categorical approach" in which "we examine judicially noticeable documents of conviction to determine which statutory phrase was the basis for the conviction." Martinez-Lopez , 864 F.3d at 1039 (citation omitted). "If the defendant pled or was found guilty of the elements constituting a federal drug trafficking offense, the prior state conviction [of violating § 453.337 ] may serve as a predicate offense under the sentencing guidelines." Id. (citation omitted). We may apply this approach only if § 453.337 is divisible.

Section 453.337 prohibits the "possess[ion] for the purpose of sale ... any controlled substance classified in schedule I or II." Nev. Rev. Stat. § 453.337. To determine if the statute is a categorical match for its federal counterpart, we examine whether § 453.337"proscribes the same amount of or less conduct" than the federally defined offense. Martinez-Lopez , 864 F.3d at 1038. As the government has conceded, the schedules referenced in § 453.337 criminalize more substances than are listed in the federal Controlled Substances Act. Consequently, as in Martinez-Lopez , "[t]his case ... turns on the second step of our analysis," whether § 453.337 is divisible and thereby susceptible to examination under the modified categorical approach. Id. at 1039. However, we are aware of no controlling Nevada precedent definitively resolving whether or not § 453.337 is a divisible statute.

III. Parties' Arguments

Figueroa contends that the Nevada Supreme Court decision of Sheriff v. Luqman , 101 Nev. 149, 697 P.2d 107 (1985), established that § 453.337 is not divisible as to the identity of the controlled substance possessed by the accused. According to Figueroa, Luqman established that, under Nevada's post-1981 statutory drug scheme, which encompasses § 453.337, the identity of the controlled substance is "merely a fact"—rather than an "element of the offense."

At issue in Luqman was the authority of the state board of pharmacy to "classify drugs into various schedules according to the drug's propensity for harm and abuse," thereby setting the penalties for violations of the relevant statutory provisions. 697 P.2d at 109–10. The Nevada Supreme Court explained:

[T]he legislature can make the application or operation of a statute complete within itself dependent upon the existence of certain facts or conditions, the ascertainment of which is left to the administrative agency. In doing so the legislature vests the agency with mere fact finding authority and not the authority to legislate. ...

Id. (citations omitted). Luqman held that, "[a]lthough the legislature may not delegate its power to legislate," such authorization to the board properly "delegate[d] the power to determine the facts or state of things upon which the law makes its own operations depend," because the agency, by classifying controlled substances, was "only authorized to determine the facts which will make the statute effective." Id. (citations omitted). Figueroa seizes upon this language to describe the identity of the controlled substance as a "fact" rather than an "element" of § 453.337.

The government counters that the Nevada Supreme Court decision of Muller v. Sheriff , 93 Nev. 686, 572 P.2d 1245 (1977), establishes that § 453.337 is divisible as to its controlled substance requirement. In Muller , the defendant-appellant contended that where "the sale of [two] different controlled substances was...