Figueroa-Beltran v. United States, 071620 NVSC, 76038

Docket Nº76038
Opinion JudgeGIBBONS, J.
Party NameGIBRAN RICHARDO FIGUEROA-BELTRAN, Appellant, v. UNITED STATES OF AMERICA, Respondent.
AttorneyRene L. Valladares, Federal Public Defender, and Cristen C. Thayer, Assistant Federal Public Defender, Las Vegas, for Appellant. Nicholas A. Trutanich, United States Attorney, District of Nevada, Elizabeth O. White, Appellate Chief, and Nancy M. Olson and Elham Roohani, Assistant United States At...
Judge PanelWe concur: Hardesty J., Parraguirre, J., Cadish, J., Silver, J. STIGLICH, J., with whom PICKERING, C.J., agrees, dissenting:
Case DateJuly 16, 2020
CourtSupreme Court of Nevada

136. Nev.Adv.Op. 45

GIBRAN RICHARDO FIGUEROA-BELTRAN, Appellant,

v.

UNITED STATES OF AMERICA, Respondent.

No. 76038

Supreme Court of Nevada

July 16, 2020

Certified question, pursuant to NRAP 5, regarding a federal sentencing enhancement for a prior conviction of possession of a controlled substance with intent to sell under NRS 453.337. United States Court of Appeals for the Ninth Circuit; Diarmuid F. O'Scannlain and Johnnie B. Rawlinson, Circuit Judges; Sarah S. Vance, District Judge. Question answered.

Rene L. Valladares, Federal Public Defender, and Cristen C. Thayer, Assistant Federal Public Defender, Las Vegas, for Appellant.

Nicholas A. Trutanich, United States Attorney, District of Nevada, Elizabeth O. White, Appellate Chief, and Nancy M. Olson and Elham Roohani, Assistant United States Attorneys, Las Vegas, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

GIBBONS, J.

The United States Court of Appeals for the Ninth Circuit has certified three questions to this court pursuant to NRAP 5. Although we accept the certified questions, we reframe them into one question to better reflect existing state law principles: Is the identity of a substance an element of the crime articulated in NRS 453.337? NRS 453.337 prohibits a person from possessing, for the purpose of sale, flunitrazepam, gamma-hydroxybutyrate, or any schedule I or II controlled substance. We conclude that the identity of a substance is an element of the crime described in NRS 453.337, such that each schedule I or II controlled substance simultaneously possessed with the intent to sell constitutes a separate offense.

FACTS AND PROCEDURAL HISTORY

In 2012, Gibran Richardo Figueroa-Beltran, a native of Mexico, was convicted of possession of a controlled substance with intent to sell in violation of NRS 453.337 for his simultaneous possession of heroin and cocaine and sentenced to 19 to 48 months in prison. Figueroa-Beltran was paroled approximately one year later, but he was subsequently arrested for selling a controlled substance and deported to Mexico. Figueroa-Beltran illegally reentered the United States and again was arrested for selling a controlled substance. While the charges relating to Figueroa-Beltran's most recent arrest were pending in state court, in federal court Figueroa-Beltran was charged with, and pleaded guilty to, being a deported alien found unlawfully in the United States in violation of 8 U.S.C. § 1326 (2012). Figueroa-Beltran was sentenced to 41 months in prison, which included a 16-level sentencing enhancement due to his 2012 conviction in Nevada for violating NRS 453.337. See United States Sentencing Commission, Guidelines Manual (U.S.S.G.), § 2L1.2 (Nov. 2015).

U.S.S.G. § 2L1.2 provides that a 16-level enhancement may be added to a sentence if the defendant has been convicted of a drug trafficking offense for which the defendant received a sentence of more than 13 months. A drug trafficking offense is defined as "an offense under . . . state . . . law that prohibits . . . the possession of a controlled substance (or a counterfeit substance) with intent to . . . distribute, or dispense." U.S.S.G. § 2L1.2, comment. (n.1)(B)(iv) (2015). Figueroa-Beltran appealed to the Ninth Circuit, challenging the federal district court's application of the 16-level enhancement to his sentence, arguing that his conviction under NRS 453.337 did not qualify as a predicate drug trafficking offense under the federal sentencing guidelines.

Federal courts employ "a three-step analysis to determine whether a prior conviction under state law qualifies as a predicate drug trafficking offense under the federal sentencing guidelines." United States v. Martinez-Lopez, 864 F.3d 1034, 1038 (9th Cir. 2017). Without considering the facts underlying the conviction, the federal court must first determine whether the state law is a categorical match with the federal drug trafficking law. Id. Under this first step, federal courts "look only to the statutory definitions of the corresponding offenses." Id. (internal quotations omitted). "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" and the enhancement applies. Id. (internal quotations omitted). In the instant case, the Ninth Circuit determined, and the government conceded, that because "the schedules referenced in NRS 453.337 criminalize more substances than are listed in the federal Controlled Substances Act," NRS 453.337 is not a categorical match to its federal counterpart. United States v. Figueroa-Beltran, 892 F.3d 997, 1002-03 (9th Cir. 2018); see also 21 U.C.S.A. § 801 et seq. (West 1970).

When a state statute is not a categorical match to its federal counterpart, federal courts must then employ the second step of the analysis and ask whether the state statute is divisible. Martinez Lopez, 864 F.3d at 1038. A statute is divisible when it lists one or more elements in the alternative, thereby defining multiple, alternative versions of the same crime. Mathis v. United States, __U.S.__, __, 136 S.Ct. 2243, 2249 (2016); Descamps v. United States, 570 U.S. 254, 261-62 (2013). Conversely, a statute is indivisible if it sets forth alternative means through which a defendant satisfies a single element of the offense. See Mathis, U.S. at, __136 S.Ct. at 2249.

Only if the state statute is divisible may the court proceed to the third step in the analysis and apply the modified categorical approach. Martinez-Lopez, 864 F.3d at 1039. "At this step," a federal court "examine[s] judicially noticeable documents of conviction to determine which statutory phrase was the basis for the conviction." Id. (internal quotations omitted). Under this approach, if Figueroa-Beltran pleaded or was found guilty of the elements of a crime that would also constitute a federal drug trafficking offense (i.e., the crime involved a substance criminalized in both NRS 453.337 and the federal Controlled Substances Act), the prior state conviction may serve as a predicate offense under the federal sentencing guidelines and warrant a sentence enhancement. Id.

When reviewing Figueroa-Beltran's appeal, the Ninth Circuit concluded that no controlling Nevada precedent clearly resolved whether a substance's identity is an element of the crime articulated in NRS 453.337. See Figueroa-Beltran, 892 F.3d at 1003. Such a determination would have assisted the Ninth Circuit in determining whether NRS 453.337 was divisible for federal sentencing purposes. Thus, the Ninth Circuit filed its certified questions with this court.

DISCUSSION

Rule 5 of the Nevada Rules of Appellate Procedure permits this court to accept and answer certified questions from "federal courts when the answers may be determinative of part of the federal case, there is no controlling [Nevada] precedent, and the answer will help settle important questions of law." Savage v. Pierson, 123 Nev. 86, 89, 157 P.3d 697, 699 (2007) (alteration in original) (internal quotations omitted). "As the answering court, our role is limited to answering the questions of law posed to [us;] the certifying court retains the duty to determine the facts and to apply the law provided by the answering court to those facts." Progressive Gulf Ins. Co. v. Faehnrich, 130 Nev. 167, 170, 327 P.3d 1061, 1063 (2014) (alteration in original) (internal quotations omitted). Thus, "[w]e accept the facts as stated in the certification order and its attachments." Id. (alteration and internal quotations omitted).

Figueroa-Beltran argues that the divisibility of a state statute for purposes of a federal sentencing enhancement is a purely federal question and, thus, this court should not answer the Ninth Circuit's questions.1 Because the questions posed by the Ninth Circuit raise important questions of law that are not currently answered by existing Nevada law, we exercise our discretion under NRAP 5 and accept the questions. Moreover, because our state law has not applied the federal concept of divisibility to our criminal statutes, we reframe the questions posed by the Ninth Circuit to a single question: Is the identity of a substance an element of the crime articulated in NRS 453.337?2 See Chapman v. Deutsche Bank Nat'l Tr. Co., 129 Nev. 314, 317-18, 302 P.3d 1103, 1105 (2013) (explaining that this court has discretion to rephrase a certified question).

Defining elements for purposes of this inquiry

Before we can determine whether a drug's identity is an element of the crime articulated in NRS 453.337, we must define the difference between an element of a crime and a means of committing the crime. Elements of crimes "are the constituent parts of a crime's legal definition [, i.e., ] the things the prosecution must prove to sustain a conviction." Mathis, __U.S. at__, 136 S.Ct. at 2248 (internal quotations omitted). "At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant." Id. "[A]t a plea hearing, they are what the defendant necessarily admits when he pleads guilty." Id. Unlike elements, facts "are mere real-world things-extraneous to the crime's legal requirements., .. They are circumstance[s] or event[s] having no legal effect [or] consequence.... [T]hey need neither be found by a jury nor admitted by a defendant." Id. (alterations in original) (citation and internal quotations omitted). Mathis describes the following hypothetical: suppose a statute lists use of a deadly weapon as an element of a crime and provides that the use of a knife, gun, bat, or similar weapon would all satisfy this element. Id. at__, 136 S.Ct. at 2249. The United States Supreme Court explained that because this list specifies different ways of...

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