and Submitted En Banc January 17, 2017 San Francisco,
from the United States District Court for the Central
District of California Audrey B. Collins, District Judge,
Presiding D.C. No. 2:12-cr-00973-ABC-1
Menninger (argued) and Matthew B. Larsen, Deputy Federal
Public Defenders; Hilary L. Potashner, Federal Public
Defender; Office of the Federal Public Defender, Los Angeles,
California; for Defendant-Appellant.
Ashley Aull (argued), Assistant United States Attorney,
Criminal Appeals Section; Robert E. Dugdale and Lawrence S.
Middleton, Chiefs, Criminal Division; United States
Attorney's Office, Los Angeles, California; for
Vincent J. Brunkow and Kara Hartzler, Federal Defenders of
San Diego, Inc., San Diego, California, for Amici Curiae
Ninth Circuit Federal Public and Community Defenders.
Camacho, Jr., Graciela Martinez, Albert J. Menaster, and
Ronald L. Brown, Los Angeles, California, as and for Amicus
Curiae Los Angeles County Office of the Public Defender.
Before: Sidney R. Thomas, Chief Judge, and Stephen Reinhardt,
Alex Kozinski, Diarmuid F. O'Scannlain, M. Margaret
McKeown, Marsha S. Berzon, Richard C. Tallman, Richard R.
Clifton, Jay S. Bybee, Consuelo M. Callahan and Carlos T.
Bea, Circuit Judges.
banc court affirmed a sentence in a case taken en banc to
revisit the divisibility of California drug statutes in light
of recent guidance from the United States Supreme Court.
banc court held that California Health and Safety Code
section 11352, which criminalizes a variety of activities
related to certain controlled substances identified by
reference to other code provisions, is divisible with regard
to both its controlled substance requirement and its actus
reus requirement. The en banc court held that the district
court therefore properly applied the modified categorical
approach, and in doing so, correctly found that the defendant
pled guilty to selling cocaine, which qualifies as a drug
trafficking offense under the federal sentencing guidelines
and subjects him to a 16-level enhancement to his base
offense level. The en banc court concluded that the sentence
imposed, based on a properly calculated guidelines range, is
in part and dissenting in part, but frustrated with the whole
endeavor, Judge Bybee wrote that California Health and Safety
Code § 11352(a) functions as a new form of
"wobbler" statute in regards to the actus reus. He
wrote that the "demand for certainty" required by
Mathis v. United States, 136 S.Ct. 2243 (2016), to
conclude that the statute identifies elements rather than
means is not satisfied, and that the sentence enhancement
therefore cannot stand.
Berzon, joined by Chief Judge Thomas and Judge Reinhardt
except as to Part IV, concurred in part and dissented in
part. Judge Berzon dissented as to the majority's
decision on the actus reus component of § 11352(a).
After applying all three steps outlined in Mathis,
she concluded that it is most likely that the enumerated
actions are different means of committing the offense stated
in § 11352(a), not alternative elements, but there are
some contrary indications. She would certify the question to
the California Supreme Court. She concurred with respect to
the statute's controlled substance component, with the
caveat that there have been changes in related California
legal principles in recent years that may have undermined the
assumptions in In re Adams, 536 P.2d 473 (Cal.
1975), as to whether a specific controlled substance is an
element that must be proven beyond a reasonable doubt to a
jury or admitted by the defendant.
Reinhardt, joined by Chief Judge Thomas, dissented, joining
Judge Berzon's opinion except as to Part IV. He would
certify to the California Supreme Court the question of the
divisibility of the controlled substance provision as well as
of the actus reus provision.
TALLMAN, Circuit Judge.
this case en banc to revisit the divisibility of California
drug statutes. This case
involves California Health and Safety Code section 11352,
which-like many California drug statutes-criminalizes a
variety of activities related to certain controlled
substances identified by reference to other code provisions.
If a categorically overbroad statute like section 11352 is
divisible, then it is subject to the modified categorical
approach, and a prior state conviction under that statute
might constitute a predicate "drug trafficking
offense" under the federal sentencing guidelines. We
clarify the analysis to be employed in light of the most
recent guidance from the United States Supreme Court.
Martinez-Lopez was convicted of illegal reentry following
deportation in violation of 8 U.S.C. § 1326. The
district court assumed that section 11352 is divisible based
on our prior decisions, and concluded that
Martinez-Lopez's prior conviction under section 11352
qualifies as a federal drug trafficking offense under the
modified categorical approach. It therefore imposed a
16-level enhancement to his base offense level and sentenced
him to 77 months in prison.
appeal, Martinez-Lopez argues that section 11352 is
indivisible with regard to both its controlled substance
requirement and its actus reus requirement. We disagree, and
conclude that both requirements are elements under
Mathis, thus rendering section 11352 divisible and
subject to the modified categorical approach. Because
Martinez- Lopez previously pled guilty to selling cocaine,
which qualifies as a drug trafficking offense under the
guidelines, and because his sentence is substantively
reasonable, we affirm.
child, Miguel Angel Rodriguez-known in this case as Melvin
Martinez-Lopez-ran away from his family in Guatemala to
escape physical abuse by his alcoholic father. He entered the
United States illegally when he was 12 years old and moved in
with his aunt in Los Angeles County. Later, he began living
on the streets and in shelters. He eventually became involved
with a local street gang and started selling drugs.
was convicted in California state court of selling cocaine in
1993, and again in 1994. He was deported upon release from
his 1994 prison sentence, but he promptly returned to the
United States. In January 1998, Martinez-Lopez was again
convicted for selling cocaine after he pled guilty to
violating California Health and Safety Code section 11352(a),
which makes it a crime to transport, import, sell, furnish,
administer, give away; or offer to transport, import, sell,
furnish, administer, or give away "any controlled
substance specified" in a number of cross-referenced
code provisions. Martinez-Lopez served time in state prison
and was again deported upon release in 2001.
continued his recidivist pattern of returning to the United
States after deportation-in part to be with his children and
their mother, whom he considers to be his wife. In 2003, he
was convicted of illegal reentry, sentenced to 21 months in
federal prison, and deported upon release. In 2006, he was
again convicted of illegal reentry, sentenced to 77 months in
prison, and deported upon release. Finally, in 2014, he was
once again convicted of illegal reentry and is now serving
another 77-month sentence.
final sentence is at issue before us. The district court
based the current 77-month sentence on a guidelines
sentencing range of 70 to 87 months, which was itself driven
by the 16-level enhancement. This enhancement is imposed
under the federal sentencing guidelines when a defendant was
previously deported following a conviction "for a felony
. . . drug trafficking offense for which the sentence imposed
exceeded 13 months." U.S. Sentencing Guidelines Manual
(U.S.S.G.) § 2L1.2(b)(1)(A)(i) (U.S. Sentencing
Comm'n 2012). To qualify as a
drug trafficking offense under the guidelines, the offense
must involve a substance listed in the Controlled Substances
Act, 21 U.S.C. § 801 et seq., see United
States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir.
2012), and involve the violation of a law which
"prohibits the manufacture, import, export,
distribution, or dispensing of, or offer to sell a controlled
substance . . . or the possession of a controlled substance .
. . with intent to manufacture, import, export, distribute,
or dispense." U.S.S.G. § 2L1.2 cmt. n.1(B)(iv).
district court recognized that a conviction under
California's section 11352 does not categorically qualify
as a drug trafficking offense because section 11352
criminalizes a broader range of activity and a greater
variety of controlled substances than does federal law.
See Mielewczyk v. Holder, 575 F.3d 992, 995 (9th
Cir. 2009) (section 11352 categorically overbroad with regard
to its controlled substance requirement); United States
v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir. 2001) (en
banc) (section 11352 categorically overbroad with regard to
its actus reus requirement), superseded on other grounds
by U.S.S.G. § 2L1.2 cmt. n.4 (2002). However, the district court went on to
determine that the prior conviction nonetheless qualified as
a drug trafficking offense under the modified categorical
approach-relying on our prior determination that section
11352 is a divisible statute. See Huitron-Rocha, 771
F.3d at 1184. Because a California Superior Court plea
colloquy shows that Martinez-Lopez pled guilty to selling
cocaine, the district court concluded that the section 11352
conviction qualified as a predicate drug trafficking offense.
It therefore applied the 16-level enhancement, which resulted
in a guidelines range of 70 to 87 and a sentence of 77 months
raises three arguments on appeal. First, he argues that his
1998 conviction cannot qualify as a predicate drug
trafficking offense because section 11352 is indivisible with
regard to its controlled substance requirement. Second, he
argues that section 11352 is indivisible with regard to its
actus reus requirement. Third, he argues that his sentence is
substantively unreasonable. We reject each in turn.
apply 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.
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 (1990). At this
step, we look only to the "statutory definitions"
of the corresponding offenses. Id. at 600.
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) (per curiam). 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.
already held that section 11352, like many California drug
statutes, is not a categorical match with a federal drug
trafficking offense. See Mielewczyk, 575 F.3d at 995
(controlled substance requirement); Rivera-Sanchez,
247 F.3d at 909 (actus reus requirement). This case,
therefore, turns on the second step of our analysis.
second step, we ask whether section 11352 is a divisible
statute which "sets out one or more elements of the
offense in the alternative." Descamps v. United
States, 133 S.Ct. 2276, 2281 (2013). In Mathis,
the Supreme Court reiterated the importance of the abstract
comparison of elements, explaining that a statute is
divisible only when it "list[s] elements in the
alternative, and thereby define[s] multiple crimes." 136
S.Ct. at 2249. Mathis did not change the rule stated
in Descamps; it only reiterated that the Supreme
Court meant what it said when it instructed courts to compare
Mathis also instructed courts not to assume that a
statute lists alternative elements and defines multiple
crimes simply because it contains a disjunctive list.
Id. Although we properly articulated the
elements-based test before Mathis was decided,
see Rendon v. Holder, 764 F.3d 1077, 1086 (9th Cir.
2014), our prior decisions on California drug statutes have
often put undue emphasis on the disjunctive-list rationale
criticized in Mathis. See, e.g.,
Huitron-Rocha, 771 F.3d at 1184 (relying on
Coronado to find section 11352 divisible);
Torre-Jimenez, 771 F.3d at 1166-67 (relying on
Coronado to find Section 11351 divisible);
Coronado, 759 F.3d at 984 ("[B]y its very
terms, § 11377(a) list[s] potential offense elements in
the alternative. . . . Use of the modified categorical
approach is therefore appropriate . . . ." (citation and
quotation marks omitted)); see also Guevara, 136
S.Ct. at 2542 (vacating decision relying on
Torre-Jimenez and remanding for reconsideration in
light of Mathis).
Mathis instructs us to 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. Mathis, 136 S.Ct. at 2256. The Court begins
by describing two "easy" scenarios, which occur
when (1) a state court decision "definitively answers
the question, " or (2) the statute "on its face . .
. resolve[s] the issue." Id. The Court then
explains that "if state law fails to provide clear
answers, " we should "peek at the record documents
. . . for the sole and limited purpose of determining whether
the listed items are elements of the offense" under
state law. Id. at 2256-57 (alterations and quotation
marks omitted) (quoting Rendon, 782 F.3d at 473-74
(Kozinski, J., dissenting from denial of reh'g en banc)).
Finally, the Court observes that in most cases we will be
able to determine whether a law is divisible or indivisible.
Id. at 2257 ("[I]ndeterminacy should prove more
the exception than the rule.").
section 11352 is divisible under Mathis, then we may
proceed to the third step in our analysis and apply 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, 133 S.Ct. at 2285
(quoting Johnson v. United States, 559 U.S. 133, 144
(2010)). If the defendant pled or was found guilty of the
elements constituting a federal drug trafficking offense, the
prior state conviction may serve as a predicate offense under
the sentencing guidelines. See Shepard v. United
States, 544 U.S. 13, 16 (2005).
bears repeating that we may apply the modified categorical
approach only when we first determine that a statute is
divisible-if a statute is both overbroad and indivisible, a
prior conviction under that statute will never qualify as a
predicate drug trafficking offense under the federal
sentencing guidelines. For this reason, Martinez-Lopez's
case turns on the divisibility of section 11352.
Controlled Substance Requirement
first argues that his prior conviction cannot qualify as a
predicate offense because section 11352 is indivisible with
regard to its controlled substance requirement. We review
divisibility of a statute de novo, Almanza-Arenas v.
Lynch, 815 F.3d 469, 477 (9th Cir. 2016) (en banc), and
respect to the controlled substance requirement, we conclude
that this is an "easy" case because a "state
court decision definitively answers the question."
Mathis, 136 S.Ct. at 2256. In 1975, the California
Supreme Court decided In re Adams, 536 P.2d 473
(Cal. 1975). Adams addressed section 654 of the
California Penal Code, which prohibits multiple sentences for
a single "act or omission that is punishable in
different ways by different provisions of law." Cal.
Penal Code § 654. Adams held that, under
section 654, a defendant cannot receive multiple sentences
for the simultaneous transportation of different types of
drugs when the defendant transports the different drugs with
a single criminal objective. 536 P.2d at 476-77. But
Adams cautioned that it "d[id] not
disapprove" of earlier cases imposing multiple sentences
for simultaneous possession of different drugs. Id.
at 477 (citing, e.g., People v. Lockwood,
61 Cal.Rptr. 131 (Ct. App. 1967); People v. Lopez,
337 P.2d 570 (Cal.Ct.App. 1959)). Instead, Adams
distinguished those cases, explaining that multiple sentences
are proper so long as the defendant has multiple criminal
objectives-for example, when a defendant intends to sell to
multiple buyers. Id.
Adams implicitly approved of multiple
convictions even when a defendant has a single
criminal objective because Adams modified only the
criminal judgment by staying execution of the multiple
sentences, leaving intact the separate convictions.
Id. at 479. The California Supreme Court has
reaffirmed these principles as recently as 2012. See
People v. Jones, 278 P.3d 821, 827 (Cal. 2012) (finding
violation of section 654 but reiterating that the court
"do[es] not intend to cast doubt on the cases"
holding that "'simultaneous possession of different
items of contraband' are separate" crimes (citation
result of Adams and its progeny, defendants are
routinely subjected to multiple convictions under a single
statute for a single act as it relates to multiple controlled
substances. See, e.g., People v. Monarrez,
78 Cal.Rptr.2d 247, 248 (Ct. App. 1998) (finding no violation
of section 654 and affirming separate sentences for
simultaneous possession of heroin and cocaine for sale in
violation of section 11351). Section 11352 is no exception to
this prosecutorial charging practice. See, e.g.,
Adams, 536 P.2d. at 475-77 (finding violation of
section 654 but otherwise approving of multiple convictions
for simultaneous transportation of heroin and pantopon in
violation of section 11352); People v. Chung, 187
Cal.Rptr.3d 873, 878-80 (Ct. App. 2015) (same with regard to
simultaneous offers to sell cocaine and cocaine base).
defendants are routinely subjected to such convictions, and
because such convictions are recognized as separate crimes by
the California Supreme Court, we have a "definitive
answer": the controlled substance requirement in
section 11352 does not simply describe "alternative
methods of committing one offense." Mathis, 136
S.Ct. at 2256 (citation, alterations, and quotation marks
omitted in second quotation). Rather, because "the
possession of one [substance] is not essential to the
possession of another [substance], " In re
Hayes, 451 P.2d 430, 436 (Cal. 1969) (Traynor, C.J.,
dissenting), overruled on other grounds by Jones,
278 P.3d at 826-27, section 11352 creates separates crimes,
each containing "an element not contained in
the other, " United States v. Ford, 371 F.3d
550, 553 (9th Cir. 2004) (emphasis added) (quoting United
States v. Dixon, 509 U.S. 688, 696 (1993), which
describes the test for double jeopardy). Thus, section 11352
is divisible with regard to its controlled substance
we need look no further because the California Supreme Court
has spoken on the issue, see Mathis, 136 S.Ct. at
2256, our conclusion is also supported by persuasive
authority on California law. For example, California jury
instructions require a jury to fill in a blank identifying
"a controlled substance"-i.e., only
one-demonstrating that the jury must identify and unanimously
agree on a particular controlled substance. Judicial Council
of California Criminal Jury Instructions (CALCRIM) 2301;
see also United States v. Vidal, 504 F.3d 1072, 1084
n.20 (9th Cir. 2007) (en banc) (noting that the California
Criminal Jury Instructions "are the official
instructions for use in the state of California"
(quoting Cal. Rules of Court 2.1050)). Additionally, a
leading commentator on California law describes "[a]
specified controlled substance" as an element common to
all criminal drug offenses. 2 Witkin, Cal. Crim. Law §
102(1)(a) (4th ed. 2012).
no need to belabor the point by responding to
Martinez-Lopez's arguments regarding decisions by
California appellate courts. Because the California Supreme
Court recognizes multiple section 11352 convictions for a
single act as it relates to multiple controlled substances,
see Jones, 278 P.3d at 827; Adams, 536 P.2d
at 477, it has implicitly held that the controlled substance
requirement is an element. As the final expositor of
California law, we find its reasoning persuasive and conclude
that section 11352 is divisible with regard to its controlled
Actus Reus Requirement
next argues that his prior conviction cannot qualify as a
predicate offense under the federal sentencing guidelines
because section 11352 is indivisible with regard to its actus
reus requirement. We disagree and conclude that
Martinez-Lopez's argument is foreclosed by another
controlling state decision.
People v. Patterson, 778 P.2d 549 (Cal. 1989), the
California Supreme Court considered application of the
felony-murder doctrine to convictions under section 11352.
Patterson first explained that, under the
felony-murder doctrine, courts must evaluate the inherent
dangerousness of a crime based on "the elements of the
felony in the abstract, " and not based on the
"particular facts of the case." Id. at 554
(citation and internal quotation marks omitted in second
quotation). It then reversed the decision below, which
concluded that "a violation of section 11352" is
not inherently dangerous, id. at 553, and held that
the proper inquiry is instead whether "the specific
offense of furnishing cocaine" is inherently dangerous,
id. at 555. The court went on to explain that:
To create statutes separately proscribing the importation,
sale, furnishing, administration, etc., of each of these
drugs, would require the enactment of hundreds of individual
statutes. It thus appears that for the sake of convenience
the Legislature has included the various offenses in one
Id. at 556. In this way, Patterson
unequivocally held that section 11352 "creat[es] . . .
separate crimes" based on alternative actus rei
elements, and does not merely describe "alternative ways
of satisfying a single [actus reus] element."
Mathis, 136 S.Ct. at 2250.
insists that Patterson has nothing to do with
Mathis's distinction between elements and means
because it does not discuss what "the prosecution must
prove" and what must be "found by a jury or
admitted by a defendant." 136 S.Ct. at 2249 (citation
and quotation mark omitted). It is true that
Patterson did not describe its decision in these
terms. However, Patterson did describe its method as
an abstract comparison of "elements, " 778 P.2d at
553, which are-by definition-what the "prosecution must
prove to sustain a conviction, " Mathis, 136
S.Ct. at 2248 (quoting Black's Law Dictionary 634 (10th
ed. 2014)). We will not assume that the California Supreme
Court failed to recognize the significance of this term, or
that it did not actually mean "elements" when it
purported to compare "elements." Cf.
Mathis, 136 S.Ct. at 2254 ("[A] good rule of thumb
for reading . . . decisions is that what they say and what
they mean are one and the same . . . .").
assumption is especially unfounded in light of the California
Supreme Court's continued reliance on Patterson
and its elements-based rationale. See, e.g.,
People v. Mason, 802 P.2d 950, 977 (Cal. 1991)
(citing Patterson and explaining that
"[w]hether a felony is inherently dangerous for purposes
of the second degree felony-murder rule is determined by
viewing the elements of the felony in the
abstract" (emphasis added) (citations omitted));
People v. Howard, 104 P.3d 107, 111 (Cal. 2005)
(same). Moreover, it is hard to see how Patterson is
inapposite when it expressly rejects Martinez-Lopez's
theory, then advanced by Justice Stanley Mosk, that
"[s]ection 11352 in effect prohibits different ways [or
means] of engaging in the same targeted criminal
conduct-trafficking in illegal narcotics." 778 P.2d at
565 (Mosk, J., dissenting).
our conclusion swayed by the decisions cited by
Martinez-Lopez. Many of these decisions do not actually
conflict with our reading of Patterson. For example,
People v. Guiton affirmed a conviction for
"selling or transporting" cocaine. 847 P.2d 45, 46
(Cal. 1993). Martinez-Lopez argues that this combined
conviction proves that the actus reus requirement is not an
element. But Guiton expressly recognized that the
jury "had to agree that the defendant committed the same
act." Id. at 51. Guiton thus rests on
principles of harmless error, and does not conflict with our
reading of Patterson. See Guiton, 847 P.2d
at 54 (concluding that there was no "reasonable
probability that the jury found the defendant guilty solely
on the [unsupported] sale theory"); see also People
v. Mil, 266 P.3d 1030, 1039 (Cal. 2012) ("[T]he
omission of one or more elements of a charged offense . . .
is amenable to review for harmless error . . . ."). We
come to the same conclusion with regard to People v.
Cornejo, 155 Cal.Rptr. 238 (Ct. App. 1979), which notes
that a defendant violates section 11352 whether he sells or
gives away heroin, id. at 250.
to the extent that the cited decisions do conflict with
Patterson, we find them unpersuasive. Many of these
decisions are unpublished, and we will not rely on them.
See Cal. Rules of Court 8.1115. Others predate, and
have been overruled to the extent that they conflict with,
Patterson. See Patterson, 778 P.2d at 566
(Mosk, J., dissenting) (citing Cornejo, 155
Cal.Rptr. at 250; People v. Pierre, 1 Cal.Rptr. 223,
226 (Ct. App. 1959)). The remaining cases were decided by
California Courts of Appeal. Because ...