Case o' The Week: Defense Loses the Match Game - Verduzco-Rangel, Cal H&S 11378, and Agg Felonies

 What if you think you’re selling meth, but the drug is really Chorionic Gonadotropin?

  No worries, from the Feds (unless, of course, you’re an alien).

United States v. Verduzco-Rangel, 2018 WL 1220747(9th Cir. Mar. 9, 2018), decision available here.

Players: Decision by visiting Sr. D.J. Rakoff, joined by Judges M. Smith and Friedland.

Facts: Verduzo-Rangel was convicted of 8 USC § 1326. Id. at *1. The agg felony was a prior conviction for possession for sale of meth, in violation of Cal. Health & Safety Code § 11378. Id.

  Verduzo-Rangel’s underlying indictment and plea agreement established that he had been previously convicted of trafficking meth (a controlled substance under both state and federal law). Id. at *2.

Issue(s): “Verduzco now argues that his conviction was not in fact an aggravated felony. . . .” Id. at *1.

  “For purposes of this appeal, the Government concedes the first two prongs [of the collateral attack requirements of § 1326(d)], so the only question is whether the removal was fundamentally unfair.” Id.

  “Verduzco . . . argues that his California conviction is not categorically an aggravated felony because section 11378 remains broader than federal law as to defendants’ beliefs about the kind of substance in which they were trafficking. Under federal law, a person actually selling cocaine who thought he was selling baking soda does not possess the required mens rea to be guilty of drug trafficking . . . . Under section 11378, defendants can be found guilty even if they were mistaken about what specific substance was being trafficked, as long as the substance in which they intended to traffic is in fact controlled under California law . . . .  This means that a person who believed she was trafficking in chorionic gonadotropin but was in fact trafficking in methamphetamine would violate California law but not federal law. Verduzco argues that section 11378 is thus not categorically a drug trafficking crime under the second route laid out in Rendon.” Id. at *2 (internal quotations and citations omitted).

Held: “Rather than contesting this point, the Government argues that it is irrelevant because a conviction under section 11378 is an aggravated felony under the first route, at least where, as here, the defendant was trafficking a substance (methamphetamine) that is also controlled by federal law. We agree, and thus need not consider whether Verduzco’s conviction would also qualify as an aggravated felony under the second route identified in Rendon.” Id. at *3 (emphasis added).

Of Note: The core issue in Verduzco is a fight over Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir. 2008).

  Verduzco argued that the first route of Rendon (that is, a state offense is an agg felony if it contains a trafficking element) should include the mens rea element found in federal law: that a defendant has to intend to traffic a substance controlled by federal law. Id. at *3. It is an interesting argument, and Judge Rakoff labors to reject it (and to distinguish the Ninth’s recent decision in Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017)). Id. at *3 & n.3.

  The result? In the Ninth Circuit, a state drug trafficking offense can be a “categorical match” for the “generic” federal drug trafficking requirement, even if the state statute prohibits a drug that isn’t controlled by the feds. Id. at *3.

How to Use: Despite the rather confusing holding of Verduzco, note an important limitation. In this case, the record established that the defendant had actually been convicted of trafficking meth. Judge Rakoff expressly includes this limitation in the holding: “where the record of conviction establishes that the substance involved is federally controlled.” Id. at *4. 

  In a case where it is unclear what substance was involved in a § 11378 prior, there might remain some play in an agg felony challenge.

                                               

For Further Reading: Be honest - do you ever grapple with ambiguous language in a Guideline, sigh, and wonder “why the hell did [the Sentencing Commission] do it this way? It’s ridiculous!”

  You’re in excellent company -- Judges Berzon and Callahan feel precisely the same way (the above is a quote!)

The Nickles III Ninth Circuit panel

  For a remarkably candid insight into the minds of frustrated appellate judges drowning in categorical goo (and a very important Cal. Penal Code § 211 discussion), see the recent Nickles, III argument, available here, at 10:16.

Image of chorionic gonadotropin from https://www.testosterone.me/hcg-injections

Image of Judges Wallace, Berzon, and Callahan, and of AFPD Hanni Fakhoury, from the Nickles III argument at https://www.youtube.com/watch?v=EbutugiR21o&t=0s&index=51&list=UUeIMdiBTNTpeA84wmSRPDPg

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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