United States v. Morales -Perez ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 05-10115
v.
 D.C. No.
CR-04-00094-JCM
RODRIGO ALEJANDRO MORALES-
PEREZ, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted
November 18, 2005—San Francisco, California
Filed February 22, 2006
Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Goodwin;
Dissent by Judge Tallman
1931
UNITED STATES v. MORALES-PEREZ 1933
COUNSEL
Rene L. Valladares, Assistant Federal Public Defender, Las
Vegas, Nevada, for the defendant-appellant.
Robert A. Bork, Assistant U.S. Attorney, Las Vegas, Nevada,
for the plaintiff-appellee.
1934 UNITED STATES v. MORALES-PEREZ
OPINION
GOODWIN, Circuit Judge:
Rodrigo Alejandro Morales-Perez appeals his 70-month
sentence for unlawful reentry of a deported alien. Morales-
Perez contends that the district court erred in finding that his
prior conviction for possession or purchase of cocaine base
for purposes of sale is categorically a drug trafficking offense
warranting a sixteen level enhancement under United States
Sentencing Guideline (U.S.S.G.) § 2L1.2(b)(1)(A). We hold
that Morales-Perez’s conviction for possession or purchase of
cocaine base for purposes of sale, in violation of California
Health & Safety Code section 11351.5, is not categorically a
drug trafficking offense within the meaning of U.S.S.G
§ 2L1.2(b)(1)(A). We therefore vacate the district court’s sen-
tence and remand for the district court to conduct a modified
categorical analysis at resentencing.
I.
Rodrigo Alejandro Morales-Perez pled guilty to one count
of unlawful reentry of a deported alien in violation of 8
U.S.C. § 1326. On November 23, 2004, Morales-Perez filed
a written objection to the presentence report’s (PSR) calcula-
tion of his offense level which increased the base level by six-
teen for a prior crime of violence conviction. He also argued
that the court should not have considered his prior convictions
at all. The government’s response defended the PSR’s calcu-
lations, and in the alternative, offered Morales-Perez’s prior
conviction under California Health and Safety Code section
11351.5 for possession for sale of cocaine base as a reason to
increase the base offense level by sixteen levels. Morales-
Perez’s supplemental sentencing memorandum argued that
the district court should apply a categorical approach and then
a modified categorical approach to analyze his prior drug con-
viction.
UNITED STATES v. MORALES-PEREZ 1935
At the December 6, 2004, sentencing hearing, the govern-
ment argued that section “11351.5 does require at least con-
structive [possession] that’s consistent with federal law and
the sixteen level [increase] applies.” The district court held
that the Guidelines’ definition of drug trafficking includes dis-
tribution and stated that “distribution would include posses-
sion, constructive possession, whether he could — under
California statute if he purchased it for sale, that would be
included.” The sixteen level enhancement was applied with-
out a modified categorical analysis because the district court
held that “the federal definition of drug trafficking offense is
broad enough to include the crime for which he was convicted
here no matter how you read the state statute.” Morales-Perez
timely appealed his sentence.
II.
United States Sentencing Guideline § 2L1.2(a) provides the
base offense level for convictions under 18 U.S.C. § 1326. If
a defendant previously was deported after “a conviction for a
felony that is (i) a drug trafficking offense for which the sen-
tence imposed exceeded 13 months,” the defendant’s offense
level should be increased by sixteen levels. U.S.S.G.
§ 2L1.2(b)(1)(a). For the purposes of this increase, a drug
trafficking offense is “an offense under federal, state, or local
law that prohibits the manufacture, import, export, distribu-
tion, or dispensing of 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.
n.1(B)(iv).
The district court held that Morales-Perez’s prior convic-
tion under California Health and Safety Code section 11351.5
was a drug trafficking offense under § 2L1.2(b)(1)(a). That
statute is entitled “Possession of cocaine base for sale; punish-
ment,” and provides:
1936 UNITED STATES v. MORALES-PEREZ
Except as otherwise provided in this division, every
person who possesses for sale or purchases for pur-
poses of sale cocaine base which is specified in para-
graph (1) of subsection (f) of Section 11054, shall be
punished by imprisonment in the state prison for a
period of three, four, or five years.
CAL. HEALTH & SAFETY CODE § 11351.5 (West 2005).
To determine whether a prior conviction qualifies to
enhance a defendant’s sentence under the Guidelines, this
court applies the Taylor categorical approach and then the
modified categorical approach. United States v. Vidal, 426
F.3d 1011 (9th Cir. 2005) (holding that Blakely and Booker
did not affect these approaches).
A. The Taylor Categorical Approach
[1] The categorical approach to determining whether a prior
conviction should be used to enhance a sentence “generally
requires the trial court to look only to the fact of conviction
and the statutory definition of the prior offense.” Taylor v.
United States, 495 U.S. 575, 602 (1990); see also United
States v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004)
(applying Taylor’s categorical approach to § 2L1.2(b)(1)
(A)(i)’s drug trafficking enhancement). Here, the state statute
in question criminalizes possession or purchase of cocaine
base for sale.
1. Possess for Sale or Purchase for Sale are Independent
Means of Violating Section 11351.5
Morales-Perez argues that section 11351.5 does not fall
completely within the Guidelines’ definition of drug traffick-
ing because purchase is not manufacture, import, export, dis-
tribution, dispensing or possession. The government contends
that in order to be convicted at all under section 11351.5, one
must possess a controlled substance. We have found no pub-
UNITED STATES v. MORALES-PEREZ 1937
lished California opinion directly discussing this issue. The
statute’s plain meaning treats purchase and possession for sale
as two independent means of violating the statute.
[2] Section 11351.5 punishes a person for possession of
cocaine base for sale, or for purchase of cocaine base for sale.
The statute does not require possession and purchase, and
does not indicate that the disjunctive pairing is anything other
than a list of alternative means of falling within the statute’s
purview.
[3] To read the word “purchase” as one form of possession
would divest the purchase alternative of its independent
meaning. “It is, however, a cardinal principle of statutory con-
struction that we must give effect, if possible, to every clause
and word of a statute.” Williams v. Taylor, 529 U.S. 362, 404
(2000) (internal quotation marks omitted). The purchase lan-
guage can reach those who buy drugs without ever possessing
them. See, e.g., Armstrong v. People, 265 Cal. Rptr. 877 (Cal.
Ct. App. 1990) (controlled purchase does not require actual or
constructive possession). In addition, the fact that the statute’s
title mentions possession and not purchase “cannot limit the
plain meaning of the text.” Pa. Dep’t. of Corrs. v. Yeskey, 524
U.S. 206, 212 (1998) (citation omitted). It is the plain mean-
ing of the statute that possession and purchase for sale are two
independent means of violating the law.
2. Purchase for Sale is Not Drug Trafficking Under the
Guidelines
[4] For the purposes of § 2L1.2(b)(1)(a), a drug trafficking
offense involves “the manufacture, import, export, distribu-
tion, or dispensing of 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.
n.1(B)(iv). Possession for sale directly falls within this defini-
tion since sale is one means of distribution. However, pur-
1938 UNITED STATES v. MORALES-PEREZ
chase is not a form of possession or of any other type of drug
trafficking offense under § 2L1.2(b)(1)(a). Therefore, a Cali-
fornia Health & Safety Code section 11351.5 purchase for
sale conviction falls outside the Guidelines’ definition of drug
trafficking.
B. The Modified Categorical Approach
[5] Since section 11351.5 criminalizes activity which does
not constitute drug trafficking under the Guidelines, “the con-
viction may not be used for sentence enhancement unless the
record includes ‘documentation or judicially noticeable facts
that clearly establish that the conviction is a predicate convic-
tion for enhancement purposes.’ ” United States v. Corona-
Sanchez, 291 F.3d 1201, 1203 (9th Cir. 2002) (en banc) (quot-
ing United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th
Cir. 2001) (en banc)). This is called the modified categorical
approach.
[6] A presentence report which does not indicate the source
of its factual information is not a judicially noticeable fact for
this analysis. Corona-Sanchez, 291 F.3d at 1212. The district
court looked only to the PSR to determine Morales-Perez’s
prior convictions, and the PSR did not indicate the source of
this information. Although the government referenced facts
not included in the PSR at the sentencing hearing, the record
does not reveal the source of any additional information
regarding Morales-Perez’s prior convictions. Therefore, the
sentence must be vacated, and the case remanded. On remand,
the “government will have the opportunity at re-sentencing to
offer additional evidence to support the enhancement.”
Navidad-Marcos, 367 F.3d at 909.
III.
Morales-Perez also argues that the district court violated his
Sixth Amendment rights by considering his prior conviction
at all in determining his sentence because he did not admit the
UNITED STATES v. MORALES-PEREZ 1939
prior conviction when he pled guilty. A prior drug conviction
“need not be proven beyond a reasonable doubt or admitted
by the defendant to satisfy the Sixth Amendment.” United
States v. Esparza-Gonzalez, 422 F.3d 897, 907 (9th Cir.
2005). This argument therefore fails.
Morales-Perez finally seeks a limited remand pursuant to
United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en
banc). Because we vacate his sentence and remand for resen-
tencing pursuant to the modified categorical approach, we
need not consider Ameline. However, the district court will
resentence Morales-Perez under the current advisory system.
The sentence is VACATED, and the case is REMANDED
for resentencing.
TALLMAN, Circuit Judge, dissenting:
We must presume that when the United States Sentencing
Commission wrote the enhancement guideline for prior drug
trafficking offenses it had in mind Title 21 of the United
States Code. Section 841(a)(1) declares that it “shall be
unlawful for any person knowingly or intentionally . . . to
manufacture, distribute, or dispense, or possess with intent to
. . . distribute . . . a controlled substance . . . .” 21 U.S.C.
§ 841(a)(1) (emphasis added). That is the heart of federal drug
trafficking offenses and the California statutes are no differ-
ent. The intent to sell element is the key to the proper analysis
which the majority overlooks.
California Health and Safety Code § 11351.5 provides that
“every person who possesses for sale or purchases for pur-
poses of sale cocaine base . . . shall be punished by imprison-
ment in the state prison . . . .” (Emphasis added). Like its
federal counterpart, California’s statute establishes multiple
means by which a drug trafficking crime may be committed.
1940 UNITED STATES v. MORALES-PEREZ
Nevertheless, just because California provides different ways
to commit the same offense does not render the statute overly
broad under the Supreme Court’s categorical approach for
determining whether a prior drug trafficking offense can be
used to enhance a recidivist’s sentence. See Taylor v. United
States, 495 U.S. 575 (1990). Because § 11351.5 meets the
Taylor test, we need go no further.
Whether Morales-Perez was in actual possession of the
cocaine base or had simply purchased the cocaine base with
the intent to distribute is not significant. One simple fact
remains, had Morales-Perez been prosecuted in federal court
for the same conduct which violated California law, he would
have been prosecuted for possession with intent to distribute
under 21 U.S.C. § 841(a)(1), see United States v. Ivy, 973
F.2d 1184, 1188 (5th Cir. 1992) (finding actual possession
when the defendant “handed over $20,000 in cash for the
cocaine” and “took the package and began to open it before
his arrest”), abrogated on other grounds by Bailey v. United
States, 516 U.S. 137 (1995), or at least attempted possession
with intent to distribute under 21 U.S.C. §§ 841(a)(1) and
846, see United States v. Rosalez-Cortez, 19 F.3d 1210, 1217
(7th Cir. 1994) (upholding conviction for attempted posses-
sion with intent to distribute when defendant furthered the
purchase by helping to hide the money, and the defendant
accompanied the others to deliver the money and complete
the purchase of the cocaine).1
For instance, in United States v. Hernandez, No. 04-16663,
2005 WL 3525613 (11th Cir. Dec. 27, 2005), the Eleventh
Circuit upheld a conviction for possession with intent to dis-
tribute two kilograms of cocaine hydrochloride under 21
1
The attempted possession with intent to sell is a drug trafficking
offense as defined by the United States Sentencing Guidelines
(“U.S.S.G.”). See U.S.S.G. § 2L1.2 cmt. n.5 (“[Prior drug trafficking
offenses] include the offense of aiding and abetting, conspiring, and
attempting, to commit such offenses.”).
UNITED STATES v. MORALES-PEREZ 1941
U.S.C. §§ 841, 846, when the only evidence connecting the
defendant to the crime was the fact that he tendered the
money to purchase the drugs and then subsequently requested
that his portion of the drugs be brought to him. Id. at *1, *4.
While a co-conspirator acknowledged that Hernandez was a
purchaser, there was no evidence that Hernandez obtained
actual possession of the drugs. However, what the evidence
did prove was a completed purchase; by purchasing the drugs
Hernandez obtained the right to control the drugs. Because
Hernandez aided and abetted the crime of possession of
cocaine with intent to distribute, he could be punished as a
principle, see 18 U.S.C. § 2; Hernandez, 2005 WL 3525613,
at *4, and the Eleventh Circuit concluded that there was suffi-
cient evidence to sustain his conviction for possession with
intent to distribute under 21 U.S.C. §§ 841, 846, Hernandez,
2005 WL 3525613, at *4.
Therefore, under federal drug trafficking laws, Hernandez
was convicted for possession with intent to distribute under
the same facts that the majority argues would only qualify as
a “purchase” with intent to distribute. Yet, Hernandez’s con-
viction, because it occurred in federal court, would categori-
cally qualify as a drug trafficking offense under the
Sentencing Guidelines, whereas Morales-Perez’s state convic-
tion does not. See U.S.S.G. § 2L1.2 cmt. n.5. The result
makes no sense.
The whole point of this exercise is to determine when a
federal defendant should be punished more harshly for a sub-
sequent conviction when he has been previously convicted of
a drug trafficking crime. The district court had little difficulty
in concluding that Morales-Perez had previously been
involved in drug dealing activities. It concluded that “the fed-
eral definition of drug trafficking offense is broad enough to
include the crime for which [Morales-Perez] was convicted
. . . no matter how you read the state statute.” I agree. The dis-
trict court gave a sensible reading to the California statute and
we should do the same.
1942 UNITED STATES v. MORALES-PEREZ
At a minimum, the California statute requires the purchase
or possession of drugs with intent to sell. When convicted of
possession of cocaine base with the requisite intent to sell,
Morales-Perez committed a drug trafficking offense as con-
templated by the Sentencing Guidelines. See U.S.S.G.
§ 2L1.2(b)(1)(A). Because the majority’s overscrupulous
application of the Taylor categorical approach to § 11351.5
defies any common sense reading of the Sentencing Guide-
lines, I respectfully dissent.
The “purchase for purpose of sale” is the quintessential
“drug trafficking offense.” After the purchaser has completed
his purchase, he has obtained the right to control the pur-
chased item. Under California law, a person has constructive
possession when he “maintains control or the right to control
the contraband.” People v. Showers, 68 Cal. Rptr. 459, 644
(1968). Because the definition of “drug trafficking offense” is
broad enough to include both constructive as well as actual
possession, I would find that a conviction under § 11351.5
categorically qualifies as a drug trafficking offense under
U.S.S.G. § 2L1.2(b)(1)(A). The Fifth Circuit agrees. See
United States v. Palacios-Quinonez, 431 F.3d 471, 473-77
(5th Cir. 2005) (finding that the district court did not err in
upholding the use of a conviction under California Health and
Safety Code § 11351.5 as constituting a drug trafficking
offense under U.S.S.G. § 2L1.2(b)(1)(A));2 United States v.
2
The majority’s decision is inconsistent with the Fifth Circuit’s reason-
ing in Palacios-Quinonez. The Palacios-Quinonez panel reviewed the dis-
trict court’s decision for plain error. 431 F.3d at 473. There are three steps
to the plain error analysis: (1) was there an error; (2) was it plain by being
clear or obvious; and (3) did it affect the defendant’s substantial rights.
United States v. Olano, 507 U.S. 725, 731-37 (1993). The Palacios-
Quinonez panel never reached the question of whether the error was plain
or obvious because it held that the district court did not err in finding that
a prior conviction under § 11351.5 categorically qualified as a drug traf-
ficking offense. See 431 F.3d at 474 (dismissing the argument that it is
“possible to purchase controlled substances without actually or construc-
tively possessing them” as lacking any merit (internal quotation marks
omitted)).
UNITED STATES v. MORALES-PEREZ 1943
James, 430 F.3d 1150, 1153-54 (11th Cir. 2005) (holding that
a Florida statute which criminalizes the purchase or posses-
sion of 28 grams or more of cocaine qualifies as a “serious
drug offense” under the Armed Criminal Career Act).
In James, the issue was whether a conviction under Florida
statute § 893.135(1)(b)(1) falls within the definition of “seri-
ous drug offense” under the Armed Career Criminal Act. Sim-
ilar to the definition of drug trafficking offense under the
Sentencing Guidelines, the Armed Career Criminal Act
defines a serious drug offense as “an offense under State law,
involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance
. . . .” 18 U.S.C. § 924(e)(2)(A)(ii). The Florida statute pro-
vided that “[a]ny person who knowingly sells, purchases,
manufactures, delivers, . . . or who is knowingly in actual or
constructive possession of, 28 grams or more of cocaine, . . .
commits a felony of the first degree . . . .” FLA. STAT.
§ 893.135(1)(b)(1). Although the Florida statute contained the
word “purchase” when the definition of “serious drug
offense” did not, the Eleventh Circuit nonetheless found that
the Florida statute fell within the broad definition of a serious
drug offense for purposes of sentencing enhancement. James,
430 F.3d at 1155.3 The court believed that if it held otherwise,
it “would create an anomaly.” Id.
3
The primary issue in James was whether the Florida statute satisfied
the “[Armed Career Criminal Act’s] requirement that the offense involve
the ‘intent to manufacture or distribute’ because the Florida statute does
not have ‘as an element’ of the offense an intent to manufacture or distrib-
ute.” 430 F.3d at 1153 (internal citation omitted). The Eleventh Circuit
held that it did have the required intent element because “Florida’s drug
trafficking statute necessarily infers an intent to distribute.” Id. at 1155.
Although it did not directly address the effect of the Florida statute includ-
ing “purchase” as a means of violating the statute, the Eleventh Circuit
found that the Florida statute categorically qualified as a serious drug
offense. I find this to be persuasive and analogous to the California statute
at issue here.
1944 UNITED STATES v. MORALES-PEREZ
In this case, the majority creates an anomaly by holding
that a conviction for the purchase of cocaine base with the
intent to sell does not qualify as a drug trafficking offense
under the Sentencing Guidelines. But, under both federal and
California law, it is the act completed with the intent to sell
that differentiates simple possession of a small quantity for
personal use from possession with intent to distribute. Further,
the term “possession,” as it is used in the Sentencing Guide-
lines to define a drug trafficking offense, encompasses con-
structive as well as actual possession. Palacios-Quinonez, 431
F.3d at 477; see also United States v. Smith, 962 F.2d 923,
929 (9th Cir. 1992) (“Possession of a controlled substance
with intent to distribute may be either constructive or actual.”
(citing United States v. Disla, 805 F.2d 1340, 1350 (9th Cir.
1986))); United States v. Batimana, 623 F.2d 1366, 1369 (9th
Cir. 1980) (holding that possession of a controlled substance
under 21 U.S.C. § 841(a)(1) may be actual or constructive).
California construes its drug trafficking laws similarly. See
Showers, 68 Cal. Rptr. at 644 (“Possession may be actual or
constructive.”). If a person can be convicted of possession
with intent to sell when he exhibits only constructive posses-
sion, then logically, constructive possession with intent to sell
must also qualify as a drug trafficking offense under the Sen-
tencing Guidelines.
The majority argues that a person can purchase something
without actually obtaining possession of that item, and that if
we construe the statute any differently, we would “divest the
purchase alternative of its independent meaning.” Maj. op.
1937. However, “a completed purchase transfers the ‘legal’
right to control the substance from the seller to the purchaser
or his agents.” Palacios-Quinonez, 431 F.3d at 474. There-
fore, because a purchaser has the legal right to control the pur-
chased item, he has also obtained constructive possession of
that item.
The California courts have never held that someone can
purchase contraband without ever obtaining possession. In
UNITED STATES v. MORALES-PEREZ 1945
Armstrong v. Superior Court, 217 Cal. App. 3d 535 (Ct. App.
1990), the California Court of Appeal found no constructive
possession when the defendant “entered into and fulfilled all
terms of an agreement to purchase the contraband from gov-
ernment agents.” Id. at 538. Importantly, in that case the law
enforcement agents never intended to give up their right to
control the contraband to the defendant and the purchase was
never completed. Id. Thus, the defendant never obtained the
“right to control.” Unlike § 11351.5, the statute at issue in
Armstrong did not criminalize the purchase with intent to sell,
and the Armstrong court refused to decide whether the defen-
dant’s actions in that case constituted a purchase rather than
an attempted purchase. See id. at 540 n.2; see also Palacios
Quinonez, 431 F.3d at 474-75. The California court did not
need to address the issue, and by refusing to do so, it did not
implicitly find that a defendant who never possesses contra-
band can nonetheless be prosecuted for purchasing the contra-
band. See Palacios-Quinonez, 431 F.3d at 475.
More to the point, under California law, a defendant who
purchases contraband with the intent to sell necessarily has
constructive possession of the contraband. A defendant “has
constructive possession when he maintains control or a right
to control.” Showers, 68 Cal. Rptr. at 644; see also California
Jury Instructions — Criminal 12.01 (“ ‘Constructive posses-
sion’ does not require actual possession but does require that
a person knowingly exercise control over or right to control
a thing, either directly or through another person or per-
sons.”). Once the purchase is completed, the purchaser
becomes the owner of the purchased property. In other words,
the purchaser obtains the “right to control” that property and,
hence, has constructive possession of it. See United States v.
Johnson, 187 F.3d 1129, 1134 (9th Cir. 1999) (defining con-
structive possession as the “ownership, dominion or control
over the contraband” (emphasis added) (internal quotation
marks and citation omitted)).
1946 UNITED STATES v. MORALES-PEREZ
Furthermore, when the purchase requirement is combined
with the intent to sell element of the statute, it is clear that the
purchaser has the requisite right to control the contraband. A
defendant’s sentence cannot be enhanced for a prior “drug
trafficking” conviction if that conviction required mere pos-
session or purchase of contraband. United States v. Herrera-
Roldan, 414 F.3d 1238, 1240 (10th Cir. 2005) (holding that
a Texas statute that criminalized the mere possession, not pos-
session with intent to distribute, did not categorically qualify
as a drug trafficking offense under the Sentencing Guide-
lines). However, the California statute requires more than
simple possession or a purchase; it also requires, as an ele-
ment of the crime, that the defendant have the intent to dis-
tribute. Cf. United States v. Benitez-Perez, 367 F.3d 1200,
1240 (9th Cir. 2004) (holding that a Nevada statute “which
provides that ‘it is unlawful for a person to possess for the
purposes of sale’ . . . any controlled substance” categorically
qualified as a drug trafficking offense). If it can be proved that
the defendant had the intent to sell the contraband, it follows
that the defendant had the right to control that item, and is
“trafficking” in that commodity.4
By correctly holding that this statute categorically qualifies
as a drug trafficking offense under the Sentencing Guidelines,
we would not be neglecting the “cardinal principle of statu-
tory construction that [we] must give effect, if possible, to
every clause and word of a statute.” Williams v. Taylor, 529
U.S. 362, 404 (2000). A purchaser of an item acquires the
“right to control,” or an ownership interest in the purchased
item through a transfer from a third party. Palacios-Quinonez,
431 F.3d at 476 n.6. By separating purchase and possession,
4
In comparison, a person who is ordered to purchase an item for a third
party may never obtain actual or constructive possession of that item.
However, such a situation would not result in a conviction under this stat-
ute. Under § 11351.5, a defendant must purchase the contraband with the
intent to sell. Therefore, the defendant is not merely purchasing the contra-
band for a third party; he is purchasing the contraband to resell it. In order
to resell that contraband, he must have some “right to control.”
UNITED STATES v. MORALES-PEREZ 1947
the California statute merely makes it clear that possession
with intent to sell is enough, as it is under federal law. Cf. 21
U.S.C. § 841(a)(1). A defendant does not necessarily have to
purchase the drugs (acquire them through transfer) in order to
be convicted. Rather, a defendant may obtain possession by
another means, such as by manufacturing, stealing, or finding
the contraband. Palacios-Quinonez, 431 F.3d at 476 n.6.
The distinction becomes even more evident when it is con-
sidered in the context of joint possession. In California, pos-
session of contraband “can be predicated upon a showing of
nonexclusive or joint possession.” People v. Saldana, 157
Cal. App. 3d 443, 460 (1984). Therefore, although a third
party may have purchased the contraband, the purchase by a
third party does not preclude prosecuting a defendant who is
in actual or constructive possession of that same contraband
without having actually purchased it himself.
The district court got it right. A common sense reading of
the California statute leads to only one logical conclusion: it
is a drug trafficking offense. A defendant who completes the
purchase of contraband with the intent to resell it has obtained
the “right to control” or sell that contraband. He has posses-
sion. In federal court, Morales-Perez would have been con-
victed of either possession with intent to distribute or
attempted possession with intent to distribute. Both are
offenses that fall within the definition of a drug trafficking
offense in the Sentencing Guidelines. Consequently, a convic-
tion under California Health and Safety Code § 11351.5 cate-
gorically qualifies as a predicate drug trafficking offense and
the district court correctly enhanced the federal sentence by
16 levels under U.S.S.G § 2L1.2(b)(1)(A). I respectfully dis-
sent.