US v. Graves, No. 16-50276 (5-30-19)(Clifton w/Paez & Katzmann). The 9th vacates a life sentence under 851 and remands for resentencing. The 9th found one of the prior drug convictions to be overbroad and nondivisible. The statute is California Penal Code 4573.6 (2007), which is inmate drug possession. This statute includes drugs not in the federal drug statute, and has a single set of elements for the offense — thus it cannot be a categorical match. Since it cannot be a predicate, then the mandatory sentence of 851 must be vacated.

The case is remanded for resentencing even though the district court stated a life sentence would be appropriate under 3553. The defendant had not submitted a sentencing memo nor submit to a PSR interview because he was facing a mandatory life sentence. The district court should get to consider the submissions.

Congrats to counsel Devin Burstein and Jeremy Warren of San Diego.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/30/16-50276.pdf