Tuesday, August 29, 2017

US v. Ocampo-Estrada, No. 15-50471 (8-29-17)(Ebel w/M. Smith & N. Smith). The 9th affirms a conspiracy conviction but remands for resentencing. The 9th finds no abuse of discretion in denying the defendant's requested buyer-seller instruction because the evidence was insufficient to support such a theory of the defense.

The enhanced sentence under 851, due to a prior drug conviction, was vacated. The 9th holds that while California Health and Safety code 11378 is a divisible statute, which allows a modified categorical approach, the government failed to actually prove the defendant pled guilty to a drug charge that met the definition of a federal drug charge.

The decision is here:



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