Monday, December 04, 2017

US v. Murillo-Alvarado, No. 14-50354 (12-4-17) (Clifton w/Friedland & Chen).

A holding foretold by precedent.  In a sentencing appeal from a 1326 conviction, the 9th finds that Cal Health & Safety Code 11351, possession or purchase for sale of a designated controlled substance, is divisible.  The 9th, in US v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc), had concluded that section 11352 of that code, very similar to 11351, relating to transportation, was divisible.  Based on that reasoning, divisibility is applied here. The government could use a modified categorical approach, which it did successfully, and proved that the defendant sold cocaine. This is a drug trafficking offense under the guidelines and the +16 level enhancement is affirmed.


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