United States v. Gibran Figueroa-Beltran ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10388
Plaintiff-Appellee,
D.C. No.
v. 2:15-cr-00176-
KJD-GWF-1
GIBRAN RICHARDO FIGUEROA-
BELTRAN,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted August 17, 2017
Submission Withdrawn June 6, 2018
Resubmitted April 20, 2021
San Francisco, California
Filed April 27, 2021
Before: Diarmuid F. O’Scannlain and Johnnie B.
Rawlinson, Circuit Judges, and Sarah S. Vance,*
District Judge.
Opinion by Judge Rawlinson
*
The Honorable Sarah S. Vance, United States District Judge for the
Eastern District of Louisiana, sitting by designation.
2 UNITED STATES V. FIGUEROA-BELTRAN
SUMMARY**
Criminal Law
The panel affirmed a sentence for being a deported alien
found unlawfully in the United States in violation of 8 U.S.C.
§ 1326.
The defendant contended that the district court erred in
applying a sixteen-level enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(i) based on his prior state conviction for
possession of cocaine. He asserted that the enhancement does
not apply because the statute of conviction, Nevada Revised
Statutes § 453.337, criminalizes possession of controlled
substances that are not listed in the federal Controlled
Substance Act and thus did not categorically set forth a drug
trafficking offense. The defendant further asserted that the
district court erred in relying on the modified categorical
approach because § 453.337 is not divisible, as is required for
application of the modified categorical approach.
Based on the guidance provided by the Nevada Supreme
Court in response to the panel’s certification of questions, the
panel held that § 453.337 is a divisible statute because
possession of a specific controlled substance is an element of
the crime, and not merely a means of committing the
possession-for-sale offense. The panel wrote that although
the Nevada schedules of controlled substances are not
coterminous with the listing of prohibited substances
delineated in the Controlled Substances Act, § 453.337 is not
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. FIGUEROA-BELTRAN 3
fatally overbroad, because a jury must unanimously agree that
a defendant possessed a specific controlled substance in order
to convict under the statute. As a result, the panel applied the
modified categorical approach to determine if the defendant’s
conviction was for a drug trafficking offense. Examining the
information and judgment in the defendant’s state case, the
panel observed that the defendant entered a plea of guilty to
possessing cocaine for the purpose of sale, and that the
district court therefore correctly applied the § 2L1.2(b)(1)(A)
enhancement.
The panel held that the district court did not plainly err in
its characterization of the defendant’s criminal history and
that the defendant failed to demonstrate that the district
court’s determination affected his substantial rights. The
panel held that the district court fully considered the
defendant’s personal history, and did not err in declining to
reduce the defendant’s sentence due to proposed amendments
to the Sentencing Guidelines. The panel rejected the
defendant’s contentions that the district court procedurally
and substantively erred in imposing a three-year term of
supervised release.
4 UNITED STATES V. FIGUEROA-BELTRAN
COUNSEL
Cristen C. Thayer (argued) and Amy B. Cleary, Assistant
Federal Public Defenders; Rene L. Valladares, Federal Public
Defender; Office of the Federal Public Defender, Las Vegas,
Nevada; for Defendant-Appellant.
Nancy M. Olson (argued), Assistant United States Attorney;
Elizabeth O. White, Appellate Chief; Nicholas A. Trutanich,
United States Attorney, United States Attorney’s Office, Las
Vegas, Nevada; for Plaintiff-Appellee.
OPINION
RAWLINSON, Circuit Judge:
Appellant Gibran Richardo Figueroa-Beltran (Figueroa-
Beltran) appeals the district court’s imposition of a custodial
sentence of forty-one months, and three years of supervised
release premised on Figueroa-Beltran’s guilty plea to being
a deported alien found unlawfully in the United States in
violation of 8 U.S.C. § 1326. 1 Figueroa-
1
8 U.S.C. § 1326(a) provides that:
any alien who—(1) has been denied admission,
excluded, deported, or removed or has departed the
United States while an order of exclusion, deportation,
or removal is outstanding, and thereafter (2) enters,
attempts to enter, or is at any time found in, the United
States, unless (A) prior to his reembarkation at a place
outside the United States or his application for
admission from foreign contiguous territory, the
Attorney General has expressly consented to such
UNITED STATES V. FIGUEROA-BELTRAN 5
Beltran contends that the district court erred in applying a
sixteen-level enhancement pursuant to United States
Sentencing Guideline (U.S.S.G.) § 2L1.2(b)(1)(A)(i) based
on his prior state conviction for possession of cocaine.
Figueroa-Beltran asserts that his sentence was improperly
enhanced because the statute of conviction, Nevada Revised
Statutes (NRS) § 453.337 (§ 453.337) did not categorically
set forth a drug trafficking offense under Descamps v. United
States, 570 U.S. 254 (2013). Figueroa-Beltran specifically
maintains that § 453.337 criminalizes possession of
controlled substances not listed in the federal Controlled
Substances Act.
Figueroa-Beltran further asserts that his sentence was
procedurally and substantively unreasonable because the
district court made factual findings unsupported by the
record, failed to impose a more lenient sentence consistent
with proposed amendments to the Sentencing Guidelines, and
improperly ordered three years of supervised release.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm.
I. BACKGROUND
In May, 2012, Figueroa-Beltran was charged with
possession of cocaine with intent to sell in violation of NRS
alien’s reapplying for admission; or (B) with respect to
an alien previously denied admission and removed,
unless such alien shall establish that he was not
required to obtain such advance consent under this
chapter or any prior Act, shall be fined under Title 18,
or imprisoned not more than 2 years, or both.
6 UNITED STATES V. FIGUEROA-BELTRAN
§ 453.337. Figueroa-Beltran entered a guilty plea in Nevada
state court to the offense, and was sentenced to forty-eight
months’ imprisonment, with parole eligibility after nineteen
months.
In 2015, Figueroa-Beltran was indicted for being a
deported alien found unlawfully in the United States in
violation of 8 U.S.C. § 1326(a). Figueroa-Beltran
subsequently pled guilty to the charge.
Prior to sentencing, the probation office recommended in
its presentence report (PSR) a custodial sentence of forty-one
months’ imprisonment and three years of supervised release.
The PSR calculated a base offense level of eight, and an
adjusted offense level of twenty-four, which included a
sixteen-level enhancement pursuant to U.S.S.G. § 2L1.2
(b)(1)(A)(i) (2015),2 due to Figueroa-Beltran’s commission
of a drug trafficking offense. The PSR calculated a total
offense level of twenty-one after a three level reduction for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1.
Based on his prior arrests, the PSR calculated Figueroa-
Beltran’s criminal history score at three.
The PSR recommended a sentencing guidelines range of
forty-one to fifty-one months’ imprisonment, and a custodial
sentence of forty-one months, at the low end of the
sentencing range. Although the PSR acknowledged that
supervised release was not generally imposed under U.S.S.G.
§ 5D1.1 for defendants who will be removed from the United
States after incarceration, the PSR nevertheless recommended
three years of supervised release.
2
The PSR used the 2015 Sentencing Guidelines.
UNITED STATES V. FIGUEROA-BELTRAN 7
In his sentencing memorandum, Figueroa-Beltran
objected to the sixteen-level enhancement imposed pursuant
to U.S.S.G. § 2L1.2(b)(1)(A). Figueroa-Beltran asserted that
violation of NRS § 453.337 was not categorically a drug
trafficking offense because the state statute penalized a
broader swath of criminal conduct than the federal generic
offense. In particular, Figueroa-Beltran maintained that:
Nevada, through its Schedules I and II,
criminalize[d] the possession of more
substances than [did] federal law. For
example, both in 2012 and currently, Nevada
listed . . . Butanediol and Gamma
butyrolactone in Schedule I, and
Benzolyecgonine in Schedule II. Neither of
these drugs, however, were federally
scheduled in 2012. Nor [were] these
substances currently scheduled federally.
(citation omitted). Figueroa-Beltran further asserted that,
because NRS § 453.337 was not divisible, the district court
was precluded from reviewing the underlying record for
Figueroa-Beltran’s conviction under the modified categorical
approach. See Descamps, 570 U.S. at 260 (describing the
modified categorical approach).
Additionally, Figueroa-Beltran posited that 18 U.S.C.
§ 3553(a) and proposed amendments to U.S.S.G. § 2L1.2
supported a reduced guidelines range in his case. Figueroa-
Beltran maintained that, under the proposed amendments,
only an eight-level enhancement applied, resulting in an
applicable guidelines range of fifteen to twenty months’
imprisonment.
8 UNITED STATES V. FIGUEROA-BELTRAN
Finally, Figueroa-Beltran argued that imposition of
supervised release was improper under U.S.S.G. § 5D1.1(c)
because he would be removed to Mexico after completion of
his custodial sentence. Figueroa-Beltran emphasized that he
did not have any prior convictions for illegal reentry.
Relying on United States v. Benitez-Perez, 367 F.3d 1200(9th Cir. 2004), the district court rejected Figueroa-Beltran’s
contention that his conviction for possession of cocaine in
violation of NRS § 453.337 was not for a categorical drug
trafficking offense. The district court concluded that, because
Benitez-Perez had not been overruled, resort to the modified
categorical approach was permissible in determining whether
Figueroa-Beltran’s possession of cocaine supported the
sixteen-level enhancement. Applying the modified
categorical approach, the district court determined that the
“charging document and judgment of conviction” in
Figueroa-Beltran’s state prosecution reflected that he “was
charged and convicted of possessing for sale a controlled
substance, cocaine.”3
The district court calculated a base offense level of eight,
and an adjusted offense level of twenty-four, incorporating
the sixteen-level enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A). The district court deducted three levels due
to Figueroa-Beltran’s acceptance of responsibility, resulting
in a total offense level of twenty-one. Based on a “Criminal
History Category of II,” the district court determined that the
applicable guidelines range was forty-one to fifty-one
months’ imprisonment, with supervised release of “up to
three years.”
3
Figueroa-Beltran did not object to the government’s submission of
the information and judgment.
UNITED STATES V. FIGUEROA-BELTRAN 9
During his allocution, Figueroa-Beltran sought leniency
and conveyed that he was unaware that he could be penalized
for the drug offense after serving his prison sentence.
In rejecting Figueroa-Beltran’s request for a reduced
sentence, the district court explained that:
[Figueroa-Beltran’s] criminal history
include[d] an arrest for sale of a controlled
substance [on] May 13th, 2013. Those
charges were dismissed or the state decided
not to proceed. It [was] evident that the
reason they decided not to proceed was
because [Figueroa-Beltran] was being
deported . . . and was deported on June 4th,
2013 . . . within two to three weeks after the
arrest.
The district court also observed that Figueroa-Beltran was
arrested in 2015, and that twenty-six charges were pending
involving possession with intent to distribute heroin.
Based on Figueroa-Beltran’s criminal history, the district
court concluded that a sentence of forty-one months’
imprisonment was “adequate but not more than necessary to
accomplish the purposes of sentencing.” The district court
also imposed three years of supervised release “as an added
measure of deterrence to a defendant who believe[d] that
once he has been punished for one crime, it should not be
taken into consideration with respect to any future sentence.”
Figueroa-Beltran filed a timely notice of appeal.
10 UNITED STATES V. FIGUEROA-BELTRAN
II. STANDARDS OF REVIEW
“We review de novo the classification of a defendant’s
prior conviction for purposes of applying the Sentencing
Guidelines.” United States v. Murillo-Alvarado, 876 F.3d
1022, 1028 (9th Cir. 2017) (citation omitted).
“When reviewing a sentence for reasonableness, we
merely ask whether the trial court abused its discretion.”
United States v. Cate, 971 F.3d 1054, 1057 (9th Cir. 2020)
(citation, alteration, and internal quotation marks omitted).
We “conduct a two-step analysis when reviewing the
reasonableness of a sentence: we first consider whether the
district court committed significant procedural error, then we
consider the substantive reasonableness of the sentence.” Id.(citation, alteration, and internal quotation marks omitted).
III. DISCUSSION
A. Figueroa-Beltran’s State Conviction
Figueroa-Beltran urges us to conclude that the district
court erred in applying a sixteen-level enhancement pursuant
to U.S.S.G. § 2L1.2(b)(1)(A), because his Nevada conviction
was not categorically a drug trafficking offense. Figueroa-
Beltran maintains that, because Nevada criminalizes
possession of controlled substances that are not listed in the
Controlled Substance Act, his conviction was not
categorically a drug trafficking offense. Figueroa-Beltran
further asserts that the district court erred in relying on the
modified categorical approach to determine that his
possession of cocaine conviction warranted a sixteen-level
enhancement because NRS § 453.337 is not divisible, as is
required for application of the modified categorical approach.
UNITED STATES V. FIGUEROA-BELTRAN 11
At the time of Figueroa-Beltran’s conviction, § 453.337
provided in pertinent part:
it is unlawful for a person to possess for the
purpose of sale flunitrazepam,
gamma-hydroxybutyrate, any substance
for which flunitrazepam or
gamma-hydroxybutyrate is an immediate
precursor or any controlled substance
classified in schedule I or II.
Nev. Rev. Stat. § 453.337(1) (2012).
The commentary to U.S.S.G. § 2L1.2 (2015) defined a
“drug trafficking offense” as:
an offense under federal, state, or local law
that prohibits the manufacture, import, export,
distribution, or dispensing of, or offer to sell
a controlled substance (or a counterfeit
substance) or the possession of a controlled
substance (or a counterfeit substance) with
intent to manufacture, import, export,
distribute, or dispense.
U.S.S.G. § 2L1.2, cmt. app. n.l (B)(iv) (2015). If Figueroa-
Beltran’s Nevada conviction qualified as a drug trafficking
offense, the Guideline provided for a sixteen-level
enhancement. See U.S.S.G. § 2L1.2(b)(1)(A).
We have held that “the term controlled substance, as used
in the drug trafficking offense definition in U.S.S.G. § 2L1.2,
means those substances listed in the [Controlled Substances
Act].” United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th
12 UNITED STATES V. FIGUEROA-BELTRAN
2012). Consequently, our task is to compare the Nevada
statute of conviction with “those substances listed in the
[Controlled Substances Act].” Id.To determine whether Figueroa-Beltran’s Nevada
conviction is categorically a drug trafficking offense, we
apply the categorical approach articulated by the United
States Supreme Court in Descamps. There, the Supreme
Court explained that we must “compare the elements of the
statute forming the basis of the defendant’s conviction with
the elements of the generic crime—i.e., the offense as
commonly understood.” 570 U.S. at 257 (internal quotation
marks omitted). “Sentencing courts may look only to the
statutory definitions—i.e., the elements—of a defendant’s
prior offenses, and not to the particular facts underlying those
convictions.” Id. at 261 (citation and internal quotation
marks omitted) (emphasis in the original). If the state statute
of conviction “sweeps more broadly than the generic crime,”
the conviction may not be used as an enhancement “even if
the defendant actually committed the offense in its generic
form.” Id. “The key . . . is elements, not facts.” Id.
Nevertheless, “[i]f the statute of conviction is overbroad, we
determine whether the statute is divisible.” Gomez
Fernandez v. Barr, 969 F.3d 1077, 1086 (9th Cir. 2020)
(citation omitted). “A statute is divisible if it has multiple,
alternative elements, and so effectively creates several
different crimes. . . .” Id. (citation and internal quotation
marks omitted). If the statute is divisible, we may apply the
modified categorical approach to determine whether the
conviction qualifies for the enhancement. The modified
categorical approach permits consideration of a limited class
of materials, such as charging documents, plea agreements,
and judgments of conviction to pinpoint the crime of
conviction. See id.UNITED STATES V. FIGUEROA-BELTRAN 13
In Benitez-Perez, we held that a conviction under
§ 453.337(1) was categorically for a drug trafficking offense
because “the only conduct criminalized [was] possession of
a controlled substance for the purpose of sale.” 367 F.3d
at 1204. However, without the benefit of evolving Supreme
Court precedent regarding application of the categorical
approach articulated in Descamps, we did not address
whether § 453.337 was divisible or indivisible in view of its
inclusion of controlled substances not listed in the Controlled
Substance Act.
In the absence of any other indicators of divisibility or
indivisibility, we turned to Nevada precedent in an effort to
discern whether a jury must unanimously find that a
defendant possessed a certain controlled substance as an
element of § 453.337. Two cases contained helpful
discussion, but neither case was directly dispositive.
Sheriff v. Luqman, 697 P.2d 107, 108 (Nev. 1985)
involved a challenge to “various provisions of Nevada’s
controlled substance act.” The Nevada Supreme Court
examined the authority of the state board of pharmacy to
“classify drugs into various schedules according to the drug’s
propensity for harm and abuse.” Id. at 110. The Court
opined that “[s]ince the penalties for violating any of the
provisions of the act have been established by the legislature,
the board has merely been delegated the duty of applying its
findings to the legislative scheme.” Id. at 110–11. The Court
further articulated that “[a]lthough the legislature may not
delegate its power to legislate, it may delegate the power to
determine the facts or state of things upon which the law
makes its own operations depend.” Id. at 110 (citations
omitted). “Thus, the legislature can make the application or
operation of a statute complete within itself dependent upon
14 UNITED STATES V. FIGUEROA-BELTRAN
the existence of certain facts or conditions, the ascertainment
of which is left to the administrative agency. . . .” Id.(citation omitted).
In Muller v. Sheriff, 572 P.2d 1245 (Nev. 1977), the
Nevada Supreme Court rejected the defendant’s assertion that
“since the sale of . . . different controlled substances was
consummated simultaneously in one transaction, his conduct
[did] not constitute two separate offenses for which he may
be charged.” Id. at 1245. Rather, the Court held that, under
the controlled substance statutes applicable to heroin and
cocaine, “[t]he sale of heroin and the sale of cocaine [were]
distinct offenses requiring separate and different proof.” Id.(citations omitted).
After reviewing Luqman and Muller, we concluded that
the two decisions were “in conflict,” because “Luqman
suggest[ed] that the identity of a controlled substance [was]
a non-elemental factual determination,” whereas “Muller
appear[ed] to conclude that the sale of one controlled
substance [was] an offense distinct from the sale of another,
and proof of the identity of the controlled substance at issue
[was] required.” United States v. Figueroa–Beltran, 892 F.3d
997, 1003–04 (9th Cir. 2018). Because we were unable to
“say with confidence that the Nevada precedent definitively
answer[ed] the question whether § 453.337 [was] divisible as
to the identity of a controlled substance,” we certified the
following questions to the Nevada Supreme Court:
1. Is Nev. Rev. Stat. § 453.337 divisible as to
the controlled substance requirement?
2. Does the decision in Luqman conclude that
the existence of a controlled substance is a
UNITED STATES V. FIGUEROA-BELTRAN 15
fact rather than an element of § 453.337,
rendering the statute indivisible? If so, can
this conclusion be reconciled with Muller?
3. Does the decision in Muller conclude that
offenses under § 453.337 comprise distinct
offenses requiring separate and different
proof, rendering the statute divisible as to the
controlled substance requirement? If so, can
this conclusion be reconciled with Luqman?
Id. at 1004 (internal quotation marks omitted).4
The Nevada Supreme Court accepted these certified
questions, but “reframe[d] them into one question to better
reflect existing state law principles: Is the identity of a
substance an element of the crime articulated in NRS
453.337?” Figueroa-Beltran v. United States, 467 P.3d 615,
618 (Nev. 2020). The Nevada Supreme Court concluded that
“the identity of a substance is an element of the crime
described in NRS 453.337, such that each schedule I or II
controlled substance simultaneously possessed with the intent
to sell constitutes a separate offense.” Id.In reaching this conclusion, the Nevada Supreme Court
acknowledged that § 435.337 was ambiguous because “‘any
controlled substance’ as used by the Legislature in NRS
453.337 could mean, alternatively, ‘one controlled
4
Figueroa-Beltran objected to our certification order to the Nevada
Supreme Court to resolve the conflict in Nevada law concerning the
elements of § 435.337. However, we denied Figueroa-Beltran’s petition,
and the United States Supreme Court denied his petition for a writ of
certiorari. See Figueroa-Beltran v. United States, 139 S.Ct. 1445 (2019).
16 UNITED STATES V. FIGUEROA-BELTRAN
substance,’ ‘some controlled substances,’ or ‘all controlled
substances’ listed under schedule I or II, or under both
schedules.” Id. at 622. Relying on Muller and Andrews v.
State, 412 P.3d 37 (Nev. 2018), the Court clarified that under
the statute:
Proof of the identity of the item possessed is
an element of the offense. Where possession
of separate drugs is charged, while the
evidence relating to possession may be the
same for each charge, the evidence describing
the substance and establishing its drug
identity would undoubtedly differ with respect
to each drug charged. Hence, the totality of
evidence required to prove one count would
not establish all of the elements required with
respect to the other counts.
Id. at 623 (alterations and footnote reference omitted). The
Nevada Supreme Court explained that Luqman had no
bearing on whether identity of the controlled substance was
an element of the possession-for-sale offense because
“Luqman applied to a special circumstance involving
legislative delegation of power,” and “the Luqman court’s
reasoning for why there was no unconstitutional delegation of
authority does not apply here.” Id. at 623 n.6. The Nevada
Supreme Court concluded that “the particular identity of a
substance is an element that must be proven to sustain a
conviction under NRS 453.337.” Id. at 623 (footnote
reference omitted).
In light of the guidance provided by the Nevada Supreme
Court, we hold that § 453.337 is a divisible statute because
possession of a specific controlled substance is an element of
UNITED STATES V. FIGUEROA-BELTRAN 17
the crime, and not merely a means of committing the
possession-for-sale offense. Although the Nevada schedules
of controlled substances are not coterminous with the listing
of prohibited substances delineated in the Controlled
Substances Act, § 453.337 is not fatally overbroad, because
a jury must unanimously agree that a defendant possessed a
specific controlled substance in order to convict under the
statute. See Figueroa-Beltran, 467 P.3d at 623. As a result,
we may apply the modified categorical approach to determine
if Figueroa-Beltran’s conviction was for a drug trafficking
offense. See Descamps, 570 U.S. at 260 (explaining that the
modified categorical approach “helps effectuate the
categorical analysis when a divisible statute, listing potential
offense elements in the alternative, renders opaque which
element played a part in the defendant’s conviction”).
Under the modified categorical approach, we “examine
judicially noticeable documents of conviction to determine
which statutory phrase was the basis for the conviction.”
Gomez Fernandez, 969 F.3d at 1086 (citation and internal
quotation marks omitted). “These documents include the
charging document, the terms of a plea agreement, the
transcript of the plea colloquy, and comparable judicial
records such as the judgment.” Id. (citation, alteration, and
internal quotation marks omitted). The information filed in
Figueroa-Beltran’s state prosecution charged him with
“wilfully, unlawfully, feloniously, knowingly, and
intentionally possess[ing], for the purpose of sale, a
controlled substance, to-wit: Cocaine” in violation of NRS
§ 453.337. The judgment reflects that Figueroa-Beltran
entered a plea of guilty to the charged offense. Based on the
information and judgment, the district court correctly applied
a sixteen-level enhancement pursuant to U.S.S.G.
18 UNITED STATES V. FIGUEROA-BELTRAN
§ 2L1.2(b)(1)(A) for Figueroa-Beltran’s Nevada conviction.5
See United States v. Martinez-Lopez, 864 F.3d 1034, 1043
(9th Cir. 2017) (concluding that possession of cocaine with
intent to sell was a drug trafficking offense warranting a
sixteen-level enhancement under the sentencing guidelines).
B. Procedural And Substantive Reasonableness Of
The Sentence
1. Criminal History Determination
Figueroa-Beltran contends that the district court
procedurally erred when it determined that his criminal
history included charges for sale of a controlled substance.
Figueroa-Beltran maintains that the district court clearly erred
by speculating that the state dismissed pending charges due
to Figueroa-Beltran’s imminent removal from the United
States.
Because Figueroa-Beltran did not object to the district
court’s criminal history determination during the sentencing
hearing, we review this issue under the plain error standard.
See United States v. Herrera, 974 F.3d 1040, 1045 (9th Cir.
2020) (explaining that “[p]lain error review applies to
sentencing objections first raised on appeal”) (citation
omitted). The district court did not plainly err in its
characterization of Figueroa-Beltran’s criminal history based
on its reasonable inference that prosecution of the controlled
5
Because the propriety of the sentencing enhancement imposed by
the district court is clear based on the Nevada Supreme Court’s response
to our certified question and the documents of conviction already
referenced the record, we DENY the pending motions for judicial notice
and decline to expand the record on appeal.
UNITED STATES V. FIGUEROA-BELTRAN 19
substance charge filed on May 13, 2013, was dismissed due
to Figueroa-Beltran’s pending removal from the United States
on June 4, 2013.
In addition, Figueroa-Beltran fails to demonstrate that the
district court’s determination “affected [his] substantial
rights,” as required under plain error review. Id. (citation and
alteration omitted). The district court properly considered
Figueroa-Beltran’s extensive criminal history, including
several charges involving possession of controlled
substances, in imposing a sentence at the low end of the
guidelines’ range. In any event, the district court’s
determination premised on Figueroa-Beltran’s criminal
history was an alternative to application of the sixteen-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A). Because we
have concluded that application of the sixteen-level
enhancement was proper, the district court’s alternative
conclusions concerning Figueroa-Beltran’s criminal history
do not affect the outcome of this appeal. See United States v.
Hernandez-Valenzuela, 932 F.2d 803, 805 (9th Cir. 1991)
(declining to remand for resentencing because “[t]he district
court made clear that the grounds [for its sentencing decision]
were alternative, not cumulative”).
2. Consideration of Personal History
Figueroa-Beltran asserts that the district court failed to
adequately consider his personal history. Figueroa-Beltran
maintains that leniency was warranted because he lacked
prior convictions for illegal reentry and was never convicted
of a violent offense. However, the district court fully
considered Figueroa-Beltran’s personal and criminal
histories, which included numerous arrests and pending
charges for possession of controlled substances.
20 UNITED STATES V. FIGUEROA-BELTRAN
3. Proposed Amendments to the Sentencing
Guidelines
Figueroa-Beltran submits that his sentence was
substantively unreasonable because the district court declined
to apply proposed amendments to the Sentencing Guidelines,
and the district court failed to adequately consider Figueroa-
Beltran’s particular history.
In 2016, the Sentencing Commission proposed
amendments to illegal reentry offenses under U.S.S.G.
§ 2L1.2, including:
a new tiered enhancement based on prior
convictions for illegal reentry offenses under
8 U.S.C. 1253, 1325(a), or 1326. A defendant
who has one or more felony illegal reentry
convictions will receive an increase of
4 levels. Illegal reentry offense is defined in
the commentary to include all convictions
under 8 U.S.C. 1253 (failure to depart after an
order of removal) and 1326 (illegal reentry),
as well as second or subsequent illegal entry
convictions under § 1325(a). A defendant
who has two or more misdemeanor illegal
entry convictions under 8 U.S.C. 1325(a) will
receive an increase of 2 levels.
Notice of submission to Congress of amendments to the
sentencing guidelines effective November 1, 2016, United
States Sentencing Commission, 81 Fed. Reg. 27262, 27272
(May 5, 2016).
The Sentencing Commission explained that:
UNITED STATES V. FIGUEROA-BELTRAN 21
The amendment reduces somewhat the level
of enhancements for criminal conduct
occurring before the defendant’s first order of
deportation and adds a new enhancement for
criminal conduct occurring after the
defendant’s first order of deportation. It also
responds to concerns that prior convictions for
illegal reentry offenses may not be adequately
accounted for in the existing guideline by
adding an enhancement for prior illegal
reentry and multiple prior illegal entry
convictions.
Id.We have recognized that “[a] sentencing court . . . has the
discretion to grant a variance from the Guidelines after
promulgation but before adoption of a proposed amendment.”
United States v. Ruiz-Apolonio, 657 F.3d 907, 917 (9th Cir.
2011) (citation omitted). Nevertheless, “[t]hat the
Commission has promulgated a not-yet-adopted amendment
that is very likely to be adopted and that would result in
reduced Guidelines ranges does not render a district court’s
failure to grant a variance substantively unreasonable.” Id. at
918 (citation omitted). The district court, therefore, was not
compelled to apply the anticipated amendments to U.S.S.G.
§ 2L1.2 in fashioning a substantively reasonable sentence.
See id. (“[W]here an amendment has been promulgated but
has not yet been adopted, district courts are not required to
consider that amendment in the § 3553 analysis . . .”) (citation
omitted) (emphasis in the original).
22 UNITED STATES V. FIGUEROA-BELTRAN
C. Supervised Release
Figueroa-Beltran contends that the district court
procedurally and substantively erred in imposing three years
of supervised release because U.S.S.G. § 5D1.1 provides that
supervised release is not warranted when a defendant will be
removed from the United States after his incarceration.
We are unpersuaded by Figueroa-Beltran’s procedural
and substantive challenges to the district court’s imposition
of three years of supervised release. Pursuant to U.S.S.G.
§ 5D1.1(c) (2015),
The court ordinarily should not impose a term
of supervised release in a case in which
supervised release is not required by statute
and the defendant is a deportable alien who
likely will be deported after imprisonment.
However, we have “emphasized the importance of giving
meaning to all words in Section 5D1.1 to ensure none are
rendered superfluous.” United States v. Valdavinos-Torres,
704 F.3d 679, 693 (9th Cir. 2012) (citation omitted). “In
doing so, [we] interpret[ ] the Guidelines’ use of the word
‘ordinarily’ as advising courts that for most deportable aliens,
imposing a term of supervised release is unnecessary as the
deterrent and protective effect of supervised release is served
by the possibility of a future prosecution for illegal re-entry,
while still leaving the court discretion of imposing supervised
release in uncommon cases where added deterrence and
protection are needed.” Id. (citation and some internal
quotation marks omitted). As a result, “the word ‘ordinarily’
in Section 5D1.1 is not mandatory.” Id. (citation omitted).
UNITED STATES V. FIGUEROA-BELTRAN 23
The district court “gave a specific and particularized
explanation that supervised release would provide an added
measure of deterrence and protection based on the facts of
[Figueroa-Beltran’s] case.” Id. The district court reasoned
that:
[Figueroa-Beltran’s] rationale [for a lower
sentence] . . . justifie[d] an imposition of
supervised release, which will add as an added
measure of deterrence to a defendant who
believes that once he has been punished for
one crime, it should not be taken into
consideration with respect to any future
sentence. . . . So, three years will provide an
added measure of deterrent to this individual.
The district court’s reasoning was in response to Figueroa-
Beltran’s statement during his allocution that he had already
“paid for” his felony, thereby implying that he was not
subject to any additional consequences.
Finally, contrary to Figueroa-Beltran’s assertions, the
district court did not plainly err in calculating the range for
the supervised release period.6 The PSR indicated that the
district court “may impose a term of supervised release of not
more than three years” under 18 U.S.C. § 3583(b)(2).
Pursuant to 18 U.S.C. § 3583, the district court was
authorized to impose “not more than three years” on account
of Figueroa-Beltran’s commission of “a Class C or Class D
6
We review for plain error because Figueroa-Beltran did not object
to the district court’s calculation of the supervised release range. See
Herrera, 974 F.3d at 1045.
24 UNITED STATES V. FIGUEROA-BELTRAN
felony.”7 18 U.S.C. § 3583(b)(2) (2016). Although the
district court did not specify that the supervised release range
was based on a Class C felony, the district court’s imposition
of three years of supervised release comported with 18 U.S.C.
§ 3583(b)(2) and U.S.S.G. § 5D1.2(a)(2) (2015) (providing
supervised release for “[a]t least one year but not more than
three years for a defendant convicted of a Class C or D
felony”).
IV. CONCLUSION
Based on the guidance provided by the Nevada Supreme
Court in response to our certification of questions, we hold
that Figueroa-Beltran’s conviction for possession of cocaine
in violation of NRS § 453.337, a divisible statute, supported
the sixteen-level enhancement applied by the district court.
We reject Figueroa-Beltran’s challenges to his sentence
and term of supervised release. The district court did not err
in declining to reduce Figueroa-Beltran’s sentence due to
proposed amendments to the Sentencing Guidelines. The
district court also imposed a procedurally and substantively
reasonable sentence at the low end of the guidelines range,
and properly ordered three years of supervised release as an
added measure of deterrence.
AFFIRMED.
7
Figueroa-Beltran’s conviction in violation of 8 U.S.C. § 1326 was
a Class C felony because his maximum sentence was “less than
twenty-five years but ten or more years.” 18 U.S.C. § 3559(a)(3); see also
8 U.S.C. § 1326(b)(1) (providing for imprisonment of “not more than
10 years”).