United States v. Ocampo-Estrada
| Decision Date | 29 August 2017 |
| Docket Number | No. 15-50471,15-50471 |
| Citation | 868 F.3d 1101 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Luis OCAMPO-ESTRADA, AKA Luis Enrique Ocampo, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Defendant Luis Ocampo-Estrada (Ocampo) was convicted of conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court then determined that Ocampo had previously been convicted of a state offense, which qualified as a "felony drug offense" under 21 U.S.C. § 841(b)(1)(A), thereby triggering a twenty-year mandatory minimum sentence. The predicate offense was California Health & Safety Code section 11378, which prohibits the possession of certain controlled substances for sale.
Ocampo appeals both his federal conviction and sentence. Because the district court did not abuse its discretion in denying Ocampo's requested jury instruction, his conviction is AFFIRMED. The sentence however does not survive. We hold that California Health & Safety Code section 11378 is a divisible statute that is susceptible to the modified categorical approach. However, using the modified categorical approach, the government failed to prove that Ocampo had pleaded guilty to violating a controlled-substance element under section 11378 that is encompassed by the federal definition for "felony drug offense," 21 U.S.C. § 802(44). Accordingly, his sentence is VACATED and the matter is REMANDED to the district court for resentencing.
For almost a year, Ocampo would regularly supply methamphetamine to Norman Nooris who, in turn, would distribute it to buyers. Homeland Security Investigations (HSI) first observed this supplier-dealer relationship on October 18, 2011, when Nooris told undercover agents he needed to "reload his supply." ER 351. A short time later, Ocampo arrived driving a black SUV and handed Nooris some methamphetamine, which Nooris then sold to the undercover agents.
On October 25, 2011, the same agents arranged for another drug purchase from Nooris. Nooris asked Ocampo to "front[]" him the methamphetamine, i.e., to require payment only after the sale was complete. ER 148-49. Ocampo agreed to front Nooris the drugs, drove him to the parking lot where the sale was to take place, and then he waited in the car while Nooris sold an ounce of methamphetamine to the undercover agents. After the sale was completed, Nooris rejoined Ocampo in the car, and the two drove off.
After these two arranged purchases, HSI officers obtained authorization to monitor cell-phone conversations between Nooris and Ocampo. On December 6, 2011, Nooris told Ocampo that Nooris had customers waiting and asked when Ocampo would have the drugs. Ocampo updated him on the forthcoming supply, explaining it would be available in a few hours after his courier delivered it from across the Mexican border.
The next day, Ocampo informed Nooris that he had "two bomb ones" available, ER 119, and Nooris asked again if Ocampo could front him the drugs. Ocampo agreed and provided the methamphetamine on credit. Later that day, Nooris called to give Ocampo an update on the sale, explaining that his customer "only wanted a half." ER 129.
A few weeks later, agents intercepted another series of calls in which Ocampo and Nooris arranged for more drug sales. On December 26, 2011, Nooris asked if Ocampo could deliver the drugs immediately in order to satisfy one of Nooris's buyers, "the white dude." ER 636. Ocampo responded that he would come immediately. A few days after that, Nooris asked Ocampo to bring more methamphetamine so that Nooris could sell it while Ocampo waited in the car. That same night, Ocampo and Nooris met again for another resupply.
On January 19, 2012, Nooris arranged to sell some of Ocampo's supply on consignment, i.e., on credit, offering assurance that Ocampo would receive payment as soon as the methamphetamine could be sold that evening. Nooris kept Ocampo apprised of the status of the sales during that night. The next day, Nooris called again for a resupply, commenting that he had most of the money needed to pay down his "tab" with Ocampo. ER 158, 711. Nooris said one of his customers "wanted to get somethin kinda big," ER 717, and so Ocampo agreed to the resupply.
The frequency and duration of the dealings were substantial. Over the course of this relationship, Ocampo was Nooris's "most consistent source" of methamphetamine, and Nooris obtained the drugs from Ocampo for "almost a year." ER 82, 197. Sometimes, the two would meet "two or three times a day." ER 142.
On January 22, 2012, Nooris was pulled over for speeding and, after officers searched his car and discovered methamphetamine, they arrested him. While in custody at the county jail, Nooris spoke with Ocampo on a recorded jail call. In that call, Ocampo asked permission to sell the drugs to Nooris's customers while Nooris was incarcerated. Nooris agreed and gave Ocampo advice on how to find these customers, what to watch out for, and how much to sell. Eventually federal agents arrested Ocampo on October 19, 2012, and the United States charged both Nooris and Ocampo with conspiracy to distribute methamphetamine under 21 U.S.C. §§ 841 and 846.
Nooris pleaded guilty, but Ocampo went to trial. After the jury convicted Ocampo, the district court applied a twenty-year mandatory minimum sentence based on a determination that Ocampo's prior California conviction qualified as a felony drug offense under 21 U.S.C. § 841(b)(1)(A). Ocampo now appeals his conviction and sentence.
We begin with Ocampo's conviction. Before closing argument, Ocampo requested a theory-of-defense jury instruction on the buyer-seller exception to conspiracy liability. That exception provides that a mere sales transaction does not constitute an "agreement" sufficient to support a conspiracy conviction — there must be proof of some further agreement to commit a crime other than the sale itself, i.e., "to further distribute the drug in question." E.g., United States v. Moe, 781 F.3d 1120, 1124-25 (9th Cir. 2015). The district court found insufficient evidence to warrant the instruction and denied it. We review that decision for abuse of discretion. United States v. Bello-Bahena, 411 F.3d 1083, 1089 (9th Cir. 2005).
"A criminal defendant has a constitutional right to have the jury instructed according to h[is] theory of the case, provided that the requested instruction is supported by law and has some foundation in evidence." Moe, 781 F.3d at 1127 (emphasis added). The question is whether "there is evidence upon which the jury could rationally sustain the defense." United States v. Jackson, 726 F.2d 1466, 1468 (9th Cir. 1984); accord Moe, 781 F.3d at 1128.
We hold that the district court did not abuse its discretion in denying Ocampo's requested buyer-seller instruction because the evidence established at trial was not sufficient to sustain that theory of defense. Ocampo was Nooris's most consistent source for drugs and the relationship persisted for almost a year, with distributions to Nooris occurring frequently. Moreover, the majority of Ocampo's sales to Nooris were made on some form of credit, and involved amounts given to Nooris that exceeded the amount typical for personal use. Ocampo knew that Nooris was dividing up the drugs for resale, and the two of them advised each other on the conduct of their respective roles in the business. The force of the government's evidence, coupled with the lack of contradictory evidence, compel our conclusion that the district court did not abuse its discretion in declining the requested buyer-seller instruction.
We now turn to the sentence of imprisonment.
Before trial, the government filed an Information under 21 U.S.C. § 851 notifying Ocampo that it would enhance his statutory mandatory minimum sentence to twenty years based on Ocampo's prior felony drug conviction under California law. The enhancement was to be based on Ocampo's September 9, 1998 conviction under California Health & Safety Code section 11378, which criminalizes the possession of certain controlled substances for sale. The United States took the position that this conviction qualified as a "felony drug offense" under 21 U.S.C. § 841(b)(1)(A). The term "felony drug offense" is defined in 21 U.S.C. § 802(44) as "an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances." (emphasis added.) To support its burden, the government introduced the state-court minutes from the pronouncement of judgment, and the abstract of judgment of the state proceeding. While these materials clearly show Ocampo pleaded guilty to California Health & Safety Code section 11378, they do not describe which controlled substance under California law Ocampo pleaded guilty to possessing for sale.
Ocampo attacked the proposed federal sentence enhancement on several grounds, but he did not challenge it on the basis that his prior conviction failed to qualify as a felony drug offense. However, neither did the district court advise him that he was required to make timely challenges to the proposed enhancement in order to avoid a statutory waiver under 21 U.S.C. § 851(c)(2) ().
After the trial, when it came time for sentencing, Ocampo made several objections to the presentence report, which had concluded that Ocampo's criminal behavior was escalating. He countered by stating...
To continue reading
Request your trial
-
Tillman v. Rickard, Case No. 1:18-cv-o1244
...enhancement reflecting his mandatory minimum.6. This Honorable Court can further apply its [Wheeler test] to Petitioner's U.S. v. Luis Ocampo-Estrada, 868 F.3d 1101 (9th Cir. 2017) and Gordon v. U.S.A.G., 861 F.3d 1314 (11th Cir. 2017) claims supported by compelling and unique circumstances......