Sunday, September 03, 2017

Case o' The Week: Divided Loyalties - Ocampo-Estrada and Divisibility of Cal H&S Sec 11378

  Tough row to hoe, to get the Ninth to concede that drugs facts are “elements” in federal drug statutes. See United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc.)
   Turns out the Ninth is far more open, however, to finding elements in state drug  offenses.
United States v. Ocampo-Estrada, 2017 WL 3707900 (9th Cir. Aug. 29, 2017), decision available here.

Players: Decision by visiting Tenth Circuit Judge Ebel, joined by Judges Milan Smith and N.R. Smith.

Facts: Ocampo-Estrada was a meth supplier. Id. at *1. Before trial, the government alleged a § 851 prior to create a twenty-year mandatory minimum sentence: an old conviction under California H&S Code § 11378. Id. *2. The district court did not inform Ocampo he had to challenge the prior to avoid statutory waiver under 21 USC § 851(c)(2). Ocampo didn’t challenge the prior as failing to qualify as a “felony drug offense.” Id. at *3. 
  Ocampo was convicted after trial, and sentenced to the twenty-year mand-min.

Issue(s): “[T]he threshold question then is whether California Health & Safety Code section 11378 is a divisible statute.” Id. at *5.

Held:We hold that it is. In United States v. Martinez-Lopez, — F.3d —, No. 14-50014, 2017 WL 3203552, at *5 (9th Cir. July 28, 2017) (en banc), our en banc Court recently held that a similar statute, California Health & Safety Code section 11352, is divisible with respect to its controlled-substance requirement. In other words, the controlled substances referenced in section 11352 are treated as listing separate offenses, rather than merely listing separate means of committing a single offense. The rationale of Martinez-Lopez applies with equal force to section 11378, the statute before us.” Id.  

Of Note: Ocampo-Estrada builds upon and expands the unfortunate outcome of the Ninth’s en banc decision in Martinez-Lopez. See blog here. Judge Berzon’s compelling critique of the Martinez-Lopez decision applies with equal force to Ocampo-Estrada: why are the feds telling California the elements of state drug crimes? 
  On a more positive note, Ocampo-Estrada lost the battle but won the war in this case. The government convinced the Ninth to plow through and get to a modified categorical analysis – but once there, the Court shrugged and held the government hadn’t met its burden to prove which controlled substance was the basis for the § 11378 prior. Id. at *6. Ultimately, a fact-specific win for this particular defendant that will (hopefully) result in a sentence far below the twenty-year mand min.  

How to Use: As noted above, Ocampo-Estrada didn’t raise this specific objection when the prior was alleged. Why wasn’t this challenge waived? In a useful analysis, the Court explains that it is the district court’s statutory obligation to “advise [the defendant] that he was required to make timely challenges to the proposed enhancement in order to avoid a statutory waiver.” Id. at *3. Without that explicit advisement, the government’s waiver argument were for naught. 
  Better to preserve all objections, of course, but useful to know that inadequate advisements when a § 851 prior is filed may still protect against appellate waiver.   
For Further Reading: On the subject of priors – A.G. Sessions has very publicly directed stated his support for mandatory minimum sentences in drug cases. The ABA House of Delegates disagrees. It recently adopted a resolution opposing the imposition of mand-mins. See article here
  A second, withdrawn proposal would have specifically urged A.G. Sessions to rescind his policy, announced in May, to federal prosecutors directing them to pursue the most serious, readily provable offense. Id. 
  Why withdrawn? DOJ lodged last-minute objections. Look for the ABA’s call to rescind to be brought back at the ABA’s midyear meeting in February.

Image of West’s Annotated California Codes from$_58.JPG

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


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