United States v. Gibran Figueroa-Beltran , 892 F.3d 997 ( 2018 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF                            No. 16-10388
    AMERICA,
    Plaintiff-Appellee,                    D.C. No.
    2:15-cr-00176-KJD-GWF-1
    v.
    ORDER CERTIFYING
    GIBRAN RICHARDO                       QUESTIONS TO THE
    FIGUEROA-BELTRAN,                     NEVADA SUPREME
    Defendant-Appellant.                    COURT
    Filed June 6, 2018
    Before: Diarmuid F. O’Scannlain and Johnnie B.
    Rawlinson, Circuit Judges, and Sarah S. Vance,* District
    Judge.
    *
    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 / Certification of Questions to Nevada
    Supreme Court
    In an appeal from a criminal sentence, the panel 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
    “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 be reconciled with Luqman?
    **
    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
    ORDER
    The issue for decision in this case is whether Nevada
    Revised Statute § 453.337, which criminalizes conduct
    related to certain controlled substances identified by reference
    to the Nevada Administrative Code, is divisible under federal
    law for the purpose of applying the federal sentencing
    guidelines.1 This question of law is determinative of the
    matter pending before this court and we are not aware of any
    clearly controlling precedent in the existing decisions of the
    Nevada Supreme Court. Accordingly, pursuant to Rule 5 of
    the Nevada Rules of Appellate Procedure,2 we respectfully
    request that the Nevada Supreme Court determine whether,
    under Nevada law, § 453.337 is divisible.
    1
    Section 453.337 provides in pertinent part:
    Except as otherwise authorized by the provisions of
    NRS 453.011 to 453.552, inclusive, 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
     (2017).
    2
    Rule 5(h) provides:
    The written opinion of the Supreme Court stating the
    law governing the questions certified shall be sent by
    the clerk under the seal of the Supreme Court to the
    certifying court and to the parties and shall be res
    judicata as to the parties.
    Nev. R. App. P. 5(h).
    4             UNITED STATES V. FIGUEROA-BELTRAN
    I. Factual and Procedural Background
    In 2012, Gibran Figueroa-Beltran (Figueroa), a native of
    Mexico, was found in possession of one gram of cocaine and
    5.8 grams of heroin during a traffic stop. He was convicted
    in the Eighth Judicial District Court of possession of a
    controlled substance with intent to sell in violation of
    § 453.337 and sentenced to 19 to 48 months’ imprisonment.
    He was paroled approximately one year later, but
    subsequently arrested for selling a controlled substance, and
    removed to Mexico.
    Within two years of his removal, Figueroa illegally
    reentered the United States, where he was once again arrested
    for selling a controlled substance. While those charges were
    pending, Figueroa was charged with 26 other counts of drug-
    related offenses, including receiving stolen property,
    receiving a stolen vehicle, being a prohibited person in
    possession of firearms, operating a place for the sale of
    controlled substances, possessing for sale Schedule I/II
    controlled substances, trafficking Schedule I controlled
    substances (28+ grams), conspiring to violate the federal
    Controlled Substances Act, and selling Schedule I or II
    controlled substances.
    A federal grand jury later indicted Figueroa for being a
    deported alien found unlawfully in the United States, in
    violation of 
    8 U.S.C. § 1326.3
     Figueroa pled guilty without
    3
    Section 1326 provides in pertinent part:
    [A]ny alien who–
    UNITED STATES V. FIGUEROA-BELTRAN                         5
    a plea agreement and the district court imposed a low-end
    Guideline sentence of 41 months’ imprisonment followed by
    a three-year term of supervised release. In calculating the 41-
    month sentence, the district court began with a base offense
    level of 8 and added a 16-level enhancement under United
    States Sentencing Guidelines (U.S.S.G.) § 2L1.2 due to
    Figueroa’s 2012 conviction for possession of a controlled
    substance for sale. Figueroa objected to the enhancement,
    noting that his conviction for a violation of § 453.337 did not
    qualify as a drug trafficking offense.
    Figueroa filed a timely appeal challenging the district
    court’s application of the 16-level enhancement provided for
    in U.S.S.G. § 2L1.2.4
    (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
    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 . . .
    
    8 U.S.C. § 1326
    .
    4
    Section 2L1.2 provided:
    (a) Base Offense Level: 8
    6          UNITED STATES V. FIGUEROA-BELTRAN
    (b) Specific Offense Characteristic
    (1) Apply the Greatest:
    If the defendant previously was deported, or unlawfully
    remained in the United States, after–
    (A) a conviction for a felony that is (i) a drug
    trafficking offense for which the sentence
    imposed exceeded 13 months; (ii) a crime of
    violence; (iii) a firearms offense; (iv) a child
    pornography offense; (v) a national security or
    terrorism offense; (vi) a human trafficking
    offense; or (vii) an alien smuggling offense,
    increase by 16 levels if the conviction receives
    criminal history points under Chapter Four or
    by 12 levels if the conviction does not receive
    criminal history points;
    (B) a conviction for a felony drug trafficking
    offense for which the sentence imposed was
    13 months or less, increase by 12 levels if the
    conviction receives criminal history points
    under Chapter Four or by 8 levels if the
    conviction does not receive criminal history
    points;
    (C) a conviction for an aggravated felony,
    increase by 8 levels;
    (D) a conviction for any other felony, increase
    by 4 levels; or
    (E) three or more convictions for
    misdemeanors that are crimes of violence or
    drug trafficking offenses, increase by 4 levels.
    U.S.S.G. § 2L1.2 (2015).
    UNITED STATES V. FIGUEROA-BELTRAN                 7
    II. Governing Federal Law
    Section 2L1.2 applied to defendants who “unlawfully
    enter[ed] or remain[ed] in the United States.” U.S.S.G.
    § 2L1.2. At the time of Figueroa’s sentencing on August 24,
    2016, Guideline § 2L1.2(b)(1)(A) provided for a base offense
    level of 8, plus a 16-level enhancement if the defendant was
    “previously . . . deported” and had a previous conviction for
    a “drug trafficking offense” with a sentence exceeding
    13 months. Id. § 2L1.2(b)(1)(A). The commentary to
    Guideline § 2L1.2 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.
    Id. § 2L1.2, cmt. app. n.l (B)(iv) (2015).
    To assess whether a prior conviction under § 453.337
    qualified as a drug trafficking offense under Guideline
    § 2L1.2, we employ a “three-step analysis.” United States v.
    Martinez-Lopez, 
    864 F.3d 1034
    , 1038 (9th Cir. 2017) (en
    banc) (citation omitted). At the first step, “we ask whether
    [§ 453.337] is a categorical match with a federal drug
    trafficking offense.” Id. (citation omitted). In so doing, “we
    look only to the statutory definitions of the corresponding
    8          UNITED STATES V. FIGUEROA-BELTRAN
    offenses.”5 Id. (citation and internal quotation marks
    omitted). If § 453.337 “proscribes the same amount of or less
    conduct than that qualifying as a federal drug trafficking
    offense, then the two offenses are a categorical match,” and
    the conviction under that statute “automatically qualifies as
    a predicate drug trafficking offense.” Id. (citations and
    internal quotation marks omitted).
    If § 453.337 is not a categorical match, we proceed to the
    second step of the analysis. At this step, “we ask whether
    [§ 453.337] is a divisible statute which sets out one or more
    elements of the offense in the alternative” and “thereby
    defines multiple crimes.” Id. at 1038–39 (citations,
    alterations, and internal quotation marks omitted). A statute
    is not necessarily divisible because it is couched in terms of
    a disjunctive list. Rather than relying on the disjunctive-list
    articulation, we “consult authoritative sources of state law to
    determine whether a statute contains alternative elements
    defining multiple crimes or alternative means by which a
    defendant might commit the same crime.” Id. at 1039
    (citation and internal quotation marks omitted). If “(1) a
    state court decision definitively answers the question, or
    (2) the statute on its face resolves the issue,” our analysis
    ends. Id. (citation, alterations, and internal quotation marks
    omitted).
    5
    The federal comparator statute is the Controlled Substances Act
    (CSA), 
    21 U.S.C. § 801
     et seq. See Martinez-Lopez, 864 F.3d at 1037
    (comparing the CSA with California drug trafficking statute for the
    purpose of determining applicability of a sentencing enhancement
    pursuant to U.S.S.G. § 2L1.2). Similarly to § 453.337, the CSA cross-
    references federal drug schedules. See 
    21 U.S.C. § 802
    .
    UNITED STATES V. FIGUEROA-BELTRAN                   9
    The elements of a statute “are the constituent parts of a
    crime’s legal definition—the things the prosecution must
    prove to sustain a conviction.” Mathis v. United States,
    
    136 S. Ct. 2243
    , 2248 (2016) (citation and internal quotation
    marks omitted). In contrast, the means used to fulfill an
    element is “extraneous to the crime’s legal requirements.” 
    Id.
    The facts underlying the means “need neither be found by a
    jury nor admitted by a defendant” for a conviction. 
    Id.
     Our
    divisibility inquiry thus turns on whether the elements of a
    crime of conviction “are broader than those of a listed generic
    offense,” without regard to “[h]ow a given defendant actually
    perpetrated the crime.” 
    Id. at 2251
    .
    If § 453.337 is divisible, we “proceed to the third step in
    our analysis and apply the modified categorical approach” in
    which “we examine judicially noticeable documents of
    conviction to determine which statutory phrase was the basis
    for the conviction.” Martinez-Lopez, 864 F.3d at 1039
    (citation omitted). “If the defendant pled or was found guilty
    of the elements constituting a federal drug trafficking offense,
    the prior state conviction [of violating § 453.337] may serve
    as a predicate offense under the sentencing guidelines.” Id.
    (citation omitted). We may apply this approach only if
    § 453.337 is divisible.
    Section 453.337 prohibits the “possess[ion] for the
    purpose of sale . . . any controlled substance classified in
    schedule I or II.” 
    Nev. Rev. Stat. § 453.337
    . To determine if
    the statute is a categorical match for its federal counterpart,
    we examine whether § 453.337 “proscribes the same amount
    of or less conduct” than the federally defined offense.
    Martinez-Lopez, 864 F.3d at 1038. As the government has
    conceded, the schedules referenced in § 453.337 criminalize
    more substances than are listed in the federal Controlled
    10            UNITED STATES V. FIGUEROA-BELTRAN
    Substances Act. Consequently, as in Martinez-Lopez, “[t]his
    case . . . turns on the second step of our analysis,” whether
    § 453.337 is divisible and thereby susceptible to examination
    under the modified categorical approach. Id. at 1039.
    However, we are aware of no controlling Nevada precedent
    definitively resolving whether or not § 453.337 is a divisible
    statute.
    III.      Parties’ Arguments
    Figueroa contends that the Nevada Supreme Court
    decision of Sheriff v. Luqman, 
    697 P.2d 107
     (Nev. 1985),
    established that § 453.337 is not divisible as to the identity of
    the controlled substance possessed by the accused.
    According to Figueroa, Luqman established that, under
    Nevada’s post-1981 statutory drug scheme, which
    encompasses § 453.337, the identity of the controlled
    substance is “merely a fact”—rather than an “element of the
    offense.”
    At issue in Luqman was the authority of the state board of
    pharmacy to “classify drugs into various schedules according
    to the drug’s propensity for harm and abuse,” thereby setting
    the penalties for violations of the relevant statutory
    provisions. 
    697 P.2d at
    109–10. The Nevada Supreme Court
    explained:
    [T]he legislature can make the application or
    operation of a statute complete within itself
    dependent upon the existence of certain facts
    or conditions, the ascertainment of which is
    left to the administrative agency. In doing so
    the legislature vests the agency with mere fact
    UNITED STATES V. FIGUEROA-BELTRAN                11
    finding authority and not the authority to
    legislate. . . .
    
    Id.
     (citations omitted). Luqman held that, “[a]lthough the
    legislature may not delegate its power to legislate,” such
    authorization to the board properly “delegate[d] the power to
    determine the facts or state of things upon which the law
    makes its own operations depend,” because the agency, by
    classifying controlled substances, was “only authorized to
    determine the facts which will make the statute effective.”
    
    Id.
     (citations omitted). Figueroa seizes upon this language to
    describe the identity of the controlled substance as a “fact”
    rather than an “element” of § 453.337.
    The government counters that the Nevada Supreme Court
    decision of Muller v. Sheriff, 
    572 P.2d 1245
     (Nev. 1977),
    establishes that § 453.337 is divisible as to its controlled
    substance requirement. In Muller, the defendant-appellant
    contended that where “the sale of [two] different controlled
    substances was consummated simultaneously in one
    transaction, his conduct d[id] not constitute two separate
    offenses for which he may be charged.” 572 P.2d at 1245.
    The Nevada Supreme Court disagreed, holding that:
    The sale of heroin and the sale of cocaine are
    distinct offenses requiring separate and
    different proof. Here the record shows that
    two distinct offenses were (probably)
    committed since the sale of each controlled
    substance requires proof of an additional fact
    which the other does not, viz., the particular
    identity of the controlled substance sold.
    12         UNITED STATES V. FIGUEROA-BELTRAN
    Id. (citations, alterations, and internal quotation marks
    omitted).
    The government relies on this language to assert that the
    Muller decision establishes the divisibility of § 453.337. The
    government distinguishes Luqman on the basis that Luqman
    “did not address whether the identity of a controlled
    substance is an element of Nevada controlled substance
    offenses.”
    Luqman and Muller seemingly stand in conflict. Luqman
    suggests that the identity of a controlled substance is a non-
    elemental factual determination. In contrast, Muller appears
    to conclude that the sale of one controlled substance is an
    offense distinct from the sale of another, and proof of the
    identity of the controlled substance at issue is required.
    Without further guidance, we cannot say with confidence that
    the Nevada precedent definitively answers the question
    whether § 453.337 is divisible as to the identity of a
    controlled substance.
    IV.   Certified Questions and Further Proceedings
    When engaging in a divisibility inquiry, we look to such
    authoritative sources of state law as state court decisions and
    the wording of the relevant state statute. See Mathis, 136 S.
    Ct. at 2256. If we cannot readily discern the nature of the
    statute from these sources, we may further look to the record
    documents—indictments, jury instructions, plea colloquies
    and plea agreements—for guidance. See id. at 2256–57 and
    n.7.
    With this framework, we respectfully certify the
    following questions of law to the Nevada Supreme Court:
    UNITED STATES V. FIGUEROA-BELTRAN                 13
    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
    “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?
    “Our phrasing of the questions should not restrict the
    Court’s consideration of the issues involved. We
    acknowledge that the Court may reformulate the relevant
    state law questions as it perceives them to be, in light of the
    contentions of the parties . . .” Raynor v. United of Omaha
    Life Ins. Co., 
    858 F.3d 1268
    , 1273 (9th Cir. 2017) (citation
    and alternations omitted). We will abide by the decision of
    the Nevada Supreme Court, as specified in Nevada Rule of
    Appellate Procedure 5(h). See Chapman v. Deutsche Bank
    Nat’l Trust Co., 
    651 F.3d 1039
    , 1048 (9th Cir. 2011). “If the
    Court determines that the questions presented in this case are
    inappropriate for certification, or if it declines the
    certification for any other reason, we will resolve the
    questions according to our best understanding of [Nevada]
    law.” Raynor, 858 F.3d at 1273.
    We accordingly direct the Clerk of this court to forward
    a copy of this order, under official seal, to the Nevada
    14         UNITED STATES V. FIGUEROA-BELTRAN
    Supreme Court, together with copies of all briefs and excerpts
    of record that have been filed in this court, with a certificate
    of service on the parties.
    We stay further proceedings involving this case pending
    a response from the Nevada Supreme Court. This appeal is
    withdrawn from submission and will be resubmitted
    following the conclusion of proceedings in the Nevada
    Supreme Court. The Clerk is directed to administratively
    close this docket, pending further order. We direct the parties
    to notify the Clerk of this court within one week after the
    Nevada Supreme Court accepts or rejects the certification,
    and if it accepts certification, again to notify this court within
    one week after that court renders its opinion. As required by
    Nevada Rule of Appellate Procedure 5(c)(5), the names and
    addresses of counsel appear in the appendix. See Chapman,
    
    651 F.3d at 1048
    .
    It is so ORDERED.
    Respectfully submitted,
    Diarmuid F. O’Scannlain and Johnnie B. Rawlinson,
    Circuit Judges, and Sarah S. Vance, District Judge.
    _______________________________
    Johnnie B. Rawlinson
    United States Circuit Judge, presiding
    UNITED STATES V. FIGUEROA-BELTRAN               15
    APPENDIX
    Rene Valladares, Federal Public Defender, and Cristen C.
    Thayer and Amy B. Cleary, Assistant Federal Public
    Defenders, 411 E. Bonneville, Ste. 250, Las Vegas, Nevada
    89101, for Defendant-Appellant.
    Dayle Elieson, Interim United States Attorney, Elizabeth O.
    White, Appellate Chief, and Nancy M. Olson, Assistant
    United States Attorney, District of Nevada, 501 Las Vegas
    Blvd. S., Suite 1100, Las Vegas, Nevada 89101, for Plaintiff-
    Appellee.
    

Document Info

Docket Number: 16-10388

Citation Numbers: 892 F.3d 997

Filed Date: 6/6/2018

Precedential Status: Precedential

Modified Date: 6/6/2018