United States v. Martinez-Lopez, No. 14-50014 (Tallman for the 9-2 en banc panel; Berzon concurring and dissenting; Bybee, concurring and dissenting but frustrated) --- The Ninth Circuit affirmed a sentence for illegal reentry, holding that a violation of Cal. Health & Safety Code § 11352 can qualify for the +16 enhancement under former U.S.S.G. § 2L1.2 as a "drug trafficking offense" because both the list of substances punished under the statute and the acts punished under the statute were separate elements of the crime under Mathis v. United States, 136 S. Ct. 2243 (2016), and Descamps v. United States, 133 S. Ct. 2273 (2013).　

Section 11352 of the California Health & Safety Code punishes drug trafficking. It punishes various acts in relation to drug trafficking -- transportation, importation, sale, furnishing, administering, or giving away, or offering to do any of those things. It also punishes these acts with respect to a list of drugs, some of which are on the federal schedules and some of which are not. As a result, the Ninth Circuit has held that § 11352 is overbroad with respect to the federal definition of "drug trafficking offense." The question the panel had to resolve here was whether the statute was divisible with respect to the acts and the drugs, such that a federal sentencing court could look to the documents relating to the prior conviction in order to determine whether the defendant had been convicted of a "drug trafficking offense" as defined by the Sentencing Guidelines.　

In Mathis, the Supreme Court said that this inquiry would be "easy" when state law already held that a jury must unanimously decide which of the statutory alternatives meets an element of the crime under state law. Here, the en banc panel found two decisions of the California Supreme Court that made this inquiry easy with respect to § 11352. As to the list-of-drugs aspect of the case, the panel said that in In re Adams, 536 P.2d 473 (Cal. 1975), the California Supreme Court had held that a violation of § 11352 happens with respect to one drug on the statutory list -- simultaneous possession of different drugs on the list constitutes different crimes under § 11352. And as to the acts punished under § 11352, the panel said that in People v. Patterson, 778 P.2d 549 (Cal. 1989), the California Supreme Court held that each of the alternative acts listed in § 11352 constitutes a separate crime. Thus the modified categorical approach was available to determine whether the defendant's prior conviction under § 11352 qualified for the +16 enhancement.　

Here, it plainly did. The defendant pleaded guilty to selling .42 grams of cocaine base, and was convicted under § 11352 based on these admissions during the change-of-plea colloquy. Thus, his prior conviction qualified as a "drug trafficking offense" under former U.S.S.G. § 2L1.2(b)(1)(A). The panel also held that the 77-month sentence, at the low end of the Guidelines range, was substantively reasonable.　

Judge Berzon, whose views about the categorical approach carried the day in Descamps, concurred in the outcome but criticized Judge Tallman's deployment of Mathis. She did not believe that the California Supreme Court had answered the actus reus question so clearly in Patterson as Judge Tallman said it did. Patterson, she said, did not directly address the question whether a California jury must unanimously determine that the defendant committed one of the alternative acts punished under § 11352. Her review of decisions of the California Court of Appeal that applied Patterson bolstered her assessment. Rather than having the federal courts guess about what state law means, Judge Berzon would have certified the question to the California Supreme Court. On the other hand, Judge Berzon did agree with Judge Tallman about the question regarding the statutory list of drugs and his reading of Adams. 　

Judge Bybee, "frustrated with the whole endeavor," did not agree with Judge Tallman that the actus reus question was clearly resolved by Patterson.　

Judge Reinhardt, joined by Chief Judge Thomas, disagreed with Judge Berzon and Judge Tallman about both aspects of § 11352 based on his reading of California decisional law, and would have certified both questions to the California Supreme Court.　

Kudos to DFPD David Menninger of Los Angeles and AFPDs Vince Brunkow and Kara Hartzler of San Diego for their vigorous advocacy on behalf of the defense in this case.　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/28/14-50014.pdf