Sunday, June 02, 2019

Case o' The Week: Ninth's Not Life-Affirming - Graves and the Categorical Analysis of Section 851 Priors

We dig Graves.
United States v. Graves, 2019 WL 2293421 (9th Cir. May 30, 2019), decision available here.

Players: Decision by Judge Clifton, joined by Judges Paez and Court Int’l Trade Judge Katzmann.

Facts: Graves was charged with meth and marijuana offenses. Id. at *1. Before trial, the government gave notice under 21 USC § 851 of its intent to seek a life sentence based on two drug priors. Id. One of those convictions was for Cal. Penal Code § 4573.6, “inmate drug possession.” Id. The district court held that the priors qualified as “felony drug offenses” that triggered the enhancement.
  Graves was found guilty, and under the Section 851 enhancements, sentenced to the mandatory-minimum term of life. Id. 
  The District Court then went on to conduct a separate § 3553 analysis, to “perfect the record and to make clear that if the court were to exercise discretion, if it had any to impose a sentence at less than life, it would not.” Id.

Issue(s): “[  ] Graves challenges the life sentence imposed by the district court after it concluded he had two prior felony drug offenses under 21 U.S.C. § 841(b)(1)(A), mandating a sentence of life imprisonment. The district court concluded that his two prior convictions, including for a violation of California Penal Code § 4573.6, qualified as predicate felony drug offenses.” Id. at *1. 
  “Graves argues the district court erroneously concluded his . . . § 4573.6 conviction qualified as a felony drug offense because the statute is both overbroad and not divisible.” Id. at *2.

Held: We conclude that Graves’ section 4573.6 conviction does not qualify as a predicate offense and therefore vacate his sentence and remand for re-sentencing.” Id. at *1. “There is no dispute that section 4573.6 criminalizes controlled substances under California law that are not regulated under federal law, so the statute is overbroad . . . .We therefore must determine if the statute is also divisible.” Id. at *2.
  “We conclude that the statute is not divisible based on the plain text, state court decisions, and the contrast to convictions under the California Health and Safety Code.” Id. at *3. “We conclude . . . that California Penal Code § 4573.6 is not a divisible statute and therefore cannot be a categorical “felony drug offense” triggering a “mandatory term of life imprisonment” under 21 U.S.C. § 841(b)(1)(A) (2016).” Id. at *4.

Of Note: In Graves, the government and the district court again try the old “belt and suspenders” approach to sentencing. 

Even if the original mand-min sentence was legally incorrect, the district judge assures us, the judge still would give a life sentence. Seizing this assurance, on appeal the government argued it was unnecessary to vacate the life sentence, because the D.J. “perfect[ed] the record” and promised that a life sentence would still be imposed under the Section 3553 factors. (Notably, the district court reached this decision despite the fact that the defendant had not participated in a PSR interview, or submitted a sentencing memorandum, due to the mandatory life term.) Id. at *4.
  Yet again, the Ninth rejects this effort to inoculate against appellate review, vacates the sentence, and remands for a fresh new sentencing (hopefully with some First Step Act love thrown in). Id. at *4.

How to Use: Does the categorical approach even apply to Sec. 851 priors? The government argued that it was “far from clear” that it does. Id. at *2 & n.3. Judge Clifton “was not convinced,” and the Court “resort[s] to the categorical approach in this context.” Id. at *2. 
  To the extent it was in question, Graves seals the deal: Section 851 priors are subject to the familiar categorical analysis approach.  
For Further Reading: Under the First Step Act of 2018 (“FSA,”) Mr. Graves may be looking at mandatory term far below “life.” 
   For a thoughtful piece touting the FSA, see The First Step Act is a Major Step for Sentencing Reform, by former Sentencing Commission Chair, Judge Patti Saris, available here.

Image of “Grave digger” from

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



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