United States v. Rosales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  Nos. 05-30260
Plaintiff-Appellee-
05-30285
Cross-Appellant,
v.  D.C. No.
CR-03-00311-007-
JAIME FLORES ROSALES, MJP
Defendant-Appellant-
OPINION
Cross-Appellee.

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted
April 13, 2007—Seattle, Washington
Filed February 13, 2008
Before: Alex Kozinski, Chief Judge, Raymond C. Fisher,
Circuit Judge, and Andrew J. Guilford, District Judge.*
Opinion by Judge Guilford
*The Honorable Andrew J. Guilford, United States District Judge for
the Central District of California, sitting by designation.
1317
1320 UNITED STATES v. ROSALES
COUNSEL
Allen R. Bentley, Seattle, Washington, for the defendant-
appellant-cross-appellee.
UNITED STATES v. ROSALES 1321
Todd L. Greenberg and Sarah Y. Vogel, Assistant U.S. Attor-
neys, John McKay, United States Attorney, Seattle, Washing-
ton, for the plaintiff-appellee-cross-appellant.
OPINION
GUILFORD, District Judge:
BACKGROUND
This appeal and cross-appeal arise from the conviction of
Jaime Flores Rosales (“Rosales”) for three drug offenses.
After a long jury trial lasting most of June 2004, Rosales was
convicted on one count of conspiring to distribute 500 grams
or more of cocaine (Count 1), and two counts of possessing
cocaine with the intent to distribute (Counts 5 and 6). In the
same trial, the jury found that another defendant, co-
conspirator Alfonso Allan Brooks (“Brooks”), was guilty of
many drug offenses, after his lawyer conceded liability on
three of those crimes. See United States v. Brooks, 508 F.3d
1205 (9th Cir. 2007).
Rosales appeals his conviction on only Counts 1 and 5. On
Count 1, he concedes that there was sufficient evidence to
find that he was involved in a conspiracy to distribute
cocaine. But he argues there was insufficient evidence that he
could have reasonably foreseen that the quantity of cocaine
involved in the conspiracy would be 500 grams or more. On
Count 5, he argues there was insufficient evidence that he
possessed cocaine on April 10, 2003, but on Count 6, he con-
cedes that there was sufficient evidence that he possessed
cocaine with intent to distribute on April 26 and 27, 2003.
The government filed a cross-appeal challenging the district
court’s decision not to impose a sentencing enhancement
under 21 U.S.C. § 841(b)(1)(B).
1322 UNITED STATES v. ROSALES
We conclude that there is sufficient evidence to affirm the
convictions on Counts 1 and 5. We also conclude that the dis-
trict court erred in failing to impose a sentencing enhance-
ment under 21 U.S.C. § 841(b)(1)(B).
ANALYSIS
1. SUFFICIENCY OF THE EVIDENCE
Rosales’s sufficiency of the evidence arguments focus on
two points. The first, on Count 1, is whether it was reasonably
foreseeable to Rosales that 500 grams or more of cocaine
would be involved in the conceded conspiracy. The second,
on Count 5, is whether a “corner” (“esquina” in Spanish), ref-
erenced in the April 10 transaction, was cocaine.
Twice at trial Rosales moved for acquittal under Federal
Rule of Criminal Procedure 29 asserting that there was insuf-
ficient evidence to convict, and twice the district court denied
the motion. Although we apply a de novo standard when
reviewing a decision on a Rule 29 motion, we must affirm the
trial court if, viewing the evidence in the light most favorable
to the prosecution, “any rational trier of fact could have found
the essential elements of the offenses charged beyond a rea-
sonable doubt.” United States v. Hinton, 222 F.3d 664, 669
(9th Cir. 2000). Viewing the evidence in the light most favor-
able to the prosecution requires us to “ ‘presume . . . that the
trier of fact resolved any . . . conflict[ing inferences] in favor
of the prosecution.’ ” United States v. Johnson, 229 F.3d 891,
894 (9th Cir. 2000) (quoting Wright v. West, 505 U.S. 277,
296-97 (1992) (plurality opinion)).
Evidence at trial must be considered as a whole. Trial evi-
dence can be like abundant threads woven into a tapestry. An
individual thread may mean very little until the tapestry is
completed and a clear image appears beyond any reasonable
doubt. Those at trial viewing the nature and quality of the dif-
ferent threads as they are presented are best able to evaluate
UNITED STATES v. ROSALES 1323
the final picture. See House v. Bell, 126 S. Ct. 2064, 2078
(2006) (“Deference is given to a trial court’s assessment of
evidence presented to it in the first instance.”).
[1] In this trial, many wiretap conversations between men
who were undeniably cocaine traffickers were presented,
forming the warp in this tapestry’s weave. The evidence suffi-
ciently established that these men spoke the language of those
engaged in trade, and specifically cocaine trade, using code
words to express the key elements of trade: the cocaine, the
quality, the quantity, and the price. Threads of otherwise
meaningless conversations took on meaning only when tied
together as cocaine merchants using code words when talking
about their trade. Cf. United States v. Griffith, 118 F.3d 318,
321 (5th Cir. 1997) (“[T]here is a specialized jargon endemic
to the illegal drug distribution industry. A primary purpose of
this jargon is to conceal from outsiders, through deliberate
obscurity, the illegal nature of the activities being dis-
cussed.”).
[2] This conclusion about code words was supported at trial
in different ways. A co-conspirator testified that code was
used to refer to drugs and money during telephone calls to
avoid police detection, and there was expert testimony that
drug dealers use code to avoid detection. Rosales concedes
that the intercepted conversations “permitted a reasonable
inference that the speakers were not discussing the difficulty
of finding competent help or defects in certain legal docu-
ments, but rather, were using code words to avoid speaking
explicitly about drugs.” The subjects of “competent help” and
“documents” were discussed on April 27. Rosales concedes
that “the most striking aspect of the government’s proof was
the incongruous mixture of terms used in the intercepted calls
on April 27th.”
[3] These “striking” April 27 conversations provide signifi-
cant threads in the broader picture of cocaine traffickers ply-
ing their trade. This broader picture is relevant to both Counts
1324 UNITED STATES v. ROSALES
1 and 5, so we begin by reviewing the April 27 conversations
before analyzing the specifics of Counts 1 and 5. Otherwise
incongruous comments on April 27 make sense only when
viewed in the context of a complaint about the need to replace
low quality cocaine, and efforts to find satisfactory cocaine,
with code words used to describe the cocaine and its quality.
The April 27 exchanges began with Rosales and Manuel
Garcia-Trujillo (“Garcia-Trujillo”) talking about a “little
friend” and exchanging an “old lady” who “doesn’t even
know how to cook.”
GARCIA-TRUJILLO: What’s up?
ROSALES: Just hanging around. It’s just
that the little friend you
introduced me to, turned out
bad.
GARCIA-TRUJILLO: Oh, the small one?
ROSALES: Well, that’s not the problem,
but the other one.
GARCIA-TRUJILLO: Oh, the big one?
ROSALES: Yeah. But the old lady turned
out bad.
GARCIA-TRUJILLO: Oh.
ROSALES: She doesn’t even know how
to cook, she doesn’t know
anything . . .
GARCIA-TRUJILLO: Really?
UNITED STATES v. ROSALES 1325
ROSALES: . . . how to make the bed, or
anything. And a bastard got
sick on us.
GARCIA-TRUJILLO: Oh.
ROSALES: But bad, bad, bad . . [.]
That’s why I want to see if
you . . . you can exchange
her for me, even if it’s for a
. . . for another one like the
. . . the small one.
GARCIA-TRUJILLO: Oh, yes . . .
A few minutes later Rosales appeared to be following up on
his conversation with Garcia-Trujillo in a telephone call with
Brooks. Rosales told Brooks that everything would be fine
and that Brooks should call his friend, and Brooks replied that
he would call his friend right away. Moments later, there was
a call between Brooks and Ronald Harbin (“Harbin”) discuss-
ing “documents” that “have not been notarized” and were
“broke apart.” Bricks of cocaine, of course, can be broken
apart.
BROOKS: Good morning, Ronald.
HARBIN: Hey, what are you up to?
BROOKS: [LAUGHS] Not much. Hey, I just, ah
. . . I want to let you know . . . You
know the documents I brought to you
over last night?
HARBIN: Aha.
BROOKS: OK. Those documents have not been
notarized. So it looks like they may not
1326 UNITED STATES v. ROSALES
work for you as well as the other ones.
....
HARBIN: . . . I broke it apart though.
BROOKS: It’s OK.
Later on April 27, Rosales told Brooks that they would be
able to “exchange it right away,” and that Brooks should give
the “other one” so that Brooks could fulfill his “commitment.”
Later that evening Brooks called Saul Ruiz (“Ruiz”) and left
the message that follows about “documents.”
Hey, old man, what’s up? How are you doing?
Good, or what? Look, old man, ah . . . I’m . . . I’m
bringing you the documents over there at 6 pesos
and they mark at 75. Is that all right? If anything
comes up, I’ll be calling you. Ah, I was waiting to
solve a situation, and it/he didn’t show up. In other
words, well, that’s where we are. Now if that’s all
right, or if it’s not, then, let me know. I’ll try to solve
the situation one way or another, OK? So, we have
to give a . . . We have to give some documents at,
like I told you, at 6 pesos and they mark at 75 to 80.
You see, I mean, well you’ll know if they pass the
. . . the . . . the indicator test, and let me know. OK.
Fine then, son. Take care.
[4] Expert testimony established that for cocaine, the nor-
mal purity range at the distribution level is 70 to 80 percent.
Thus a juror could infer that cocaine was the merchandise,
and its purity was “75 to 80” percent. Rosales concedes that
“[t]he jury could reasonably infer that Brooks sought to
arrange to have Harbin return poor-quality drugs to him and
that Rosales sought to arrange with Garcia-Trujillo to
exchange those poor quality drugs for something better.”
UNITED STATES v. ROSALES 1327
We now review specific evidence concerning Counts 1 and
5 in the context of code being used to talk the language of
cocaine trafficking.
1.1 Count 1 - Conspiracy to Distribute 500 Grams
or More of Cocaine
Rosales concedes that he was properly convicted of con-
spiring to distribute cocaine, but he argues there was insuffi-
cient evidence that he could have reasonably foreseen the
conspiracy would involve 500 grams or more of cocaine. If he
were right, then the district court would have violated
Apprendi v. New Jersey, 530 U.S. 466 (2000), by sentencing
him under section 841(b)(1)(B) and thereby “expos[ing]” him
to a higher maximum penalty than would otherwise have been
available under section 841(b)(1)(C). United States v.
Thomas, 355 F.3d 1191, 1201 (9th Cir. 2004). Rosales may
only be exposed to section 841(b)(1)(B)’s penalties if the evi-
dence is sufficient to support the jury’s verdict that the 500-
gram quantity “either (1) fell within the scope of the defen-
dant’s agreement with his coconspirators or (2) was reason-
ably foreseeable to the defendant.” United States v. Banuelos,
322 F.3d 700, 704 (9th Cir. 2003).
Evidence on Count 1 included (1) intercepted telephone
conversations, (2) surveillance testimony, (3) expert testi-
mony, and (4) evidence of a hydraulic press and two metal
molds.
[5] The intercepted telephone conversations evidence sub-
stantial activity involving cocaine, with Rosales playing a key
role, and the jury convicted Rosales on Counts 5 and 6 for
possessing cocaine on different dates with the intent to dis-
tribute. The conversations also occasionally gave more direct
evidence that the amount of cocaine involved was 500 grams
or more.
For example, in a telephone conversation on April 25,
2003, Rosales promised Garcia-Trujillo 16 “titles” in the fol-
1328 UNITED STATES v. ROSALES
lowing exchange which suggests cocaine was the merchan-
dise, and the quantity was a full kilogram.
GARCIA-TRUJILLO: Oh, what’s going on? I’m
Genaro’s friend okay?
ROSALES: What’s up?
GARCIA-TRUJILLO: What do you say, then?
ROSALES: Just here, son, resting.
GARCIA-TRUJILLO: All right.
ROSALES: And is everything fine or
what?
GARCIA-TRUJILLO: Yes. It’s just that we have
that already, to see what . . .
what you said.
ROSALES: Do you remember the other
apartment?
GARCIA-TRUJILLO: Yes.
ROSALES: Do . . . do you remember the
other one?
GARCIA-TRUJILLO: Yes.
ROSALES: OK. Go there, OK?
GARCIA-TRUJILLO: A . . . all right. No, I was ju
. . . just letting you know,
well to see how many . . .
UNITED STATES v. ROSALES 1329
ROSALES: Yeah . . .
[VOICES OVERLAP]
GARCIA-TRUJILLO: to see . . . to see how many
titles you had.
ROSALES: Yeah, half of what he tol . . .
the . . . what Genaro told
you.
GARCIA-TRUJILLO: Oh, How many is it? Eight?
ROSALES: Yes. And then like in one
week already, all the rest will
be there.
GARCIA-TRUJILLO: All right.
(Emphasis added.)
[6] Rosales concedes that “[a] reasonable juror could have
found that Rosales obtained cocaine from Garcia-Trujillo and
transferred it to Brooks.” Thus, Garcia-Trujillo, as a seller,
would be interested in the price to be paid to him, and a juror
could infer that the word “titles” in the April 25 conversation
referred to money. Expert testimony was presented that the
going rate for a kilogram of cocaine was $16,000, and that
when drug dealers discuss money they usually leave off the
zeros. A juror could infer that Rosales was offering to buy
$16,000 worth of cocaine, a kilogram, when he stated that he
would pay 8 “titles” now and 8 “titles” in another week. Thus,
it would have been foreseeable to Rosales that the conspiracy
involved at least 500 grams — half a kilogram — of cocaine.
[7] Other wiretap conversations gave strong evidence of the
amount of cocaine involved. For example, Rosales stated that
“half a kilo” might be exchanged in a deal involving one of
1330 UNITED STATES v. ROSALES
his cars. Thus, a juror could infer that Rosales was involved
with “half a kilo” — 500 grams — of cocaine. Further, during
this same conversation, Rosales stated that he told someone,
“You know what kind of person I am. I deal with lots of
money, I dealt with lots of money with you, and I never let
you down . . . .” Evidence that Rosales claimed to deal with
“lots of money” provides modest support for the inference
that Rosales knew that more than 500 grams of cocaine were
involved. Cf. United States v. Jabara, 618 F.2d 1319, 1329
(9th Cir. 1980) (unexplained wealth “is relevant in a narcotics
conspiracy case”), overruled on other grounds by United
States v. De Bright, 730 F.2d 1255 (9th Cir. 1984) (en banc).
[8] And there is still more supporting evidence. When the
police searched an apartment used by the conspiracy, they
found a hydraulic press and two metal molds that could form
a rectangular brick. The apartment belonged to co-conspirator
Brooks; Rosales lived there until shortly before the search. An
expert testified that the hydraulic press and metal molds could
be used to produce kilogram bricks of cocaine. Rosales argues
that this evidence is not useful for Count 1 because the
hydraulic press was in the apartment long before Rosales
moved in, and there was no evidence that Rosales had access
to the locked safe containing the metal molds. But even if
Rosales did not have access to the metal molds, the huge
hydraulic press in the living room of a co-conspirator’s apart-
ment supports the jury’s verdict that it was reasonably fore-
seeable that the conspiracy involved 500 grams or more of
cocaine.
[9] Viewing all the evidence together in the light most
favorable to the prosecution, while resolving any conflicting
inferences in favor of the prosecution, we conclude there was
sufficient evidence to convict on Count 1.
1.2 Count 5 - Possession with Intent to Distribute on
April 10, 2003
Evidence on Count 5 included (1) intercepted telephone
conversations, (2) surveillance testimony, (3) expert testi-
UNITED STATES v. ROSALES 1331
mony, and (4) testimony about the shape and size of a quarter
kilo of cocaine.
On April 10, Rosales and Brooks spoke on the phone in
Spanish. They began their conversation by talking about a
fight Rosales had with his girlfriend. But in an incongruous
aside in the middle of the conversation Brooks asked Rosales
for “any little thing” because it was “an emergency.” In
response Rosales offered Brooks a “corner.” As with other
intercepted conversations, the jury heard the Spanish-
language recording and was given a transcript of it. That tran-
script reproduced the conversation in two languages: On one
side of the page were the Spanish words actually spoken, and
on the other, a line-by-line English translation. The English
translation of the relevant part of the incongruous aside fol-
lows.
BROOKS: Yes, I know, how are you doing now,
are you in bad shape or what? how are
you?
ROSALES: I’m fine.
BROOKS: Do you think . . . that you could get me
any little thing so as to stop by, brother,
it’s just that . . . it’s that it is an emer-
gency, crazy man.
[VOICES OVERLAP]
ROSALES: What do you want?
BROOKS: This is an emergency . . . whatever you
have.
ROSALES: A “corner”.
BROOKS: No, and that’s . . . perfect.
1332 UNITED STATES v. ROSALES
ROSALES: Ah, but I’ll see you, I’ll see you a little
later, I’ll see you at about 8.
BROOKS: [Laughs] Listen.
[VOICES OVERLAP]
ROSALES: Seven.
[10] After Rosales promised Brooks a “corner” at “seven,”
the following events occurred: (1) around seven o’clock Ros-
ales drove to Brooks’s apartment and met Brooks who was
waiting at the curb; (2) while sitting in his car, Rosales
handed Brooks a red plastic bag out the car window; (3) the
red plastic bag contained something approximately the size
and shape of an oblong softball; (4) while Rosales stayed in
his car, Brooks took the red plastic bag to where Brooks’s car
was; (5) Brooks was then seen carrying only his phone. A
juror could properly find that the “corner” Rosales promised
to give Brooks at seven o’clock was in the red plastic bag
Rosales handed Brooks shortly after seven o’clock. Thus, we
must affirm the conviction on Count 5 if there was sufficient
evidence that the “corner” in the red plastic bag was cocaine.
[11] Numerous circumstances support the reasonable infer-
ence that the “corner” in the red plastic bag was cocaine.
First, in the context of other conversations and evidence, “cor-
ner” could properly be found to be code for cocaine. Indeed,
Rosales concedes that in other conversations, there was “a
reasonable inference that the speakers were . . . using code
words to avoid speaking explicitly about drugs.” More specif-
ically, the jury heard testimony from a government witness on
the meaning of the Spanish word “esquina.” Rosales used this
word in the April 10 Spanish-language conversation with
Brooks, and the jury had been presented with “corner” as the
English translation of the word. The government witness testi-
fied as follows:
UNITED STATES v. ROSALES 1333
Q. Are you familiar with a specific term for a quar-
ter kilo other than quarter kilo?
A. I’ve also heard it as esquina.
Q. Is that a Spanish or English word?
A. It’s Spanish. Quarter.
Q. Are you familiar with an English word?
A. A quarter. Quarter key. Quarter.
[12] From this testimony, the jury could conclude that the
Spanish word “esquina” meant “a quarter kilo.” From the
English-language translation of the April 10 conversation,
previously quoted, the jury knew that Rosales promised to
bring Brooks “a corner.” And from the Spanish transcript set
alongside that English translation, the jury knew that what
Rosales actually promised, in Spanish, was “una esquina.”
Putting all this together, the jury could infer that Rosales
promised to bring Brooks “a quarter kilo.”
The next circumstance supporting the reasonable inference
that the “corner” in the red plastic bag was cocaine is that the
exchange was between two men the jury found on other
charges were heavily involved in cocaine trafficking. Next, as
noted earlier concerning another transaction in the same
month, Rosales concedes that “[a] reasonable juror could have
inferred that Rosales obtained cocaine from Garcia-Trujillo
and transferred it to Brooks.” Next, the circumstance of pass-
ing the red plastic bag out a car window suggests that it was
an illegal substance. Next, the request for “any little thing” as
an “emergency” is consistent with drug transactions. Next, a
narcotics officer testified that a quarter kilo of cocaine was
“approximately the size of an oblong softball”, the same size
and shape of the red plastic bag, and that he believed the
event on April 10 was a drug delivery. Next, “corner” was
1334 UNITED STATES v. ROSALES
used apparently to mean drugs in a discussion on April 27
between Garcia-Trujillo and his brother which mentioned
Rosales by his nickname “Chilango.” Finally, when the police
eventually arrested Brooks and Rosales, cocaine was present.
[13] Viewing all the evidence together in the light most
favorable to the prosecution while resolving any conflicting
inferences in favor of the prosecution, a rational juror could
find beyond a reasonable doubt that these drug dealers talking
in code used “corner” to mean cocaine. There was no prover-
bial smoking gun on Count 5, and when the facts are consid-
ered individually, no single fact could support a conviction on
Count 5. But when the facts and inferences are considered
cumulatively and all the threads are connected, there is a uni-
fying conclusion that explains the events on April 10, and that
conclusion is that on that date, Rosales delivered to Brooks a
red plastic bag containing cocaine. We cannot conclude that
a juror would be irrational in finding beyond a reasonable
doubt that this transaction between cocaine dealers speaking
in code involved cocaine. We therefore conclude that there
was sufficient evidence to convict on Count 5.
2. THE SENTENCING ENHANCEMENT
The government filed a cross-appeal arguing that the dis-
trict court should have imposed a sentencing enhancement
under 21 U.S.C. § 841(b)(1)(B). This enhancement would
increase Rosales’s mandatory minimum sentence for prison
and supervised release because of Rosales’s 1997 state con-
viction under Revised Code of Washington § 69.50.401(d),
which the government claims is a felony drug offense. This
state conviction resulted from Rosales’s guilty plea. Rosales
makes numerous arguments in response. But the language of
the applicable statutes and cases and the record show that
Rosales’s state guilty plea, sufficiently acknowledged by his
counsel’s signature, was to a crime requiring this enhance-
ment.
UNITED STATES v. ROSALES 1335
2.1 The Double Jeopardy Clause Does Not Bar This
Appeal
[14] Rosales argues that under our decision in United States
v. Blanton, 476 F.3d 767 (9th Cir. 2007), the Fifth Amend-
ment’s Double Jeopardy Clause bars the appeal of the district
court’s refusal to impose the sentencing enhancement. But
Blanton doesn’t apply here because Blanton considered the
government’s appeal from a judgment of acquittal, entered
after a bench trial. See id. at 769. Here, by contrast, the gov-
ernment doesn’t appeal an acquittal—Rosales was convicted
by a jury. Instead, the government appeals the district court’s
decision not to increase Rosales’s sentence pursuant to 21
U.S.C. § 841(b)(1)(B). The Double Jeopardy Clause doesn’t
bar the government from appealing such sentencing decisions.
Monge v. California, 524 U.S. 721, 729 (1998). We noted in
Blanton that Apprendi undermined Monge. See Blanton, 476
F.3d at 772. Monge depended on the distinction between
“sentencing factors” and “elements” that the Court later
rejected in Apprendi. Id. Yet whatever the problems with
Monge’s rationale, its holding remains valid: The Double
Jeopardy Clause does not prohibit the government from
appealing a sentencing ruling that does not result in acquittal.
See, e.g., United States v. Booker, 543 U.S. 220, 267 (2005)
(vacating defendant Fanfan’s sentence and remanding).
2.2 The 1997 Washington State Conviction Requires
the Sentencing Enhancement
[15] Rosales was convicted on Count 1 of conspiring to dis-
tribute 500 grams or more of cocaine, violating 21 U.S.C.
§§ 841(a)(1) and 846. Under 21 U.S.C. § 841(b)(1)(B), the
mandatory minimum sentence increases from five years to ten
years for defendants with “a prior conviction for a felony drug
offense.” A “felony drug offense” is defined as “an offense
that is punishable by imprisonment for more than one year
under any law of . . . a State . . . that prohibits or restricts con-
duct relating to narcotic drugs . . . .” 21 U.S.C. § 802(44).
1336 UNITED STATES v. ROSALES
To determine whether a state “felony drug offense” is pun-
ishable by more than one year, we look to the state’s statutory
maximum sentence and not the maximum sentence available
under the state sentencing guidelines. United States v.
Murillo, 422 F.3d 1152, 1153-54 (9th Cir. 2005) (“in deter-
mining whether a state conviction is punishable for more than
one year’s imprisonment for purposes of a federal criminal
statute predicated on a prior felony conviction or for federal
sentencing purposes, we look to the maximum penalty
allowed by statute.”).
[16] The maximum penalty for the crime to which Rosales
pled guilty is five years of imprisonment. Wash. Rev. Code
§ 69.50.401(d). Because this maximum is greater than one
year, the conviction is a felony drug offense under 21 U.S.C.
§ 841(b)(1)(B) and the mandatory minimum sentence must be
imposed.
[17] Rosales cites legislative history and policy to argue
that his 1997 state conviction could not qualify as a felony
drug offense because the state conviction was only for simple
possession. But “[s]tatutory interpretation begins with the
plain language of the statute.” United States v. Hanousek, 176
F.3d 1116, 1120 (9th Cir. 1999). “If the language of the stat-
ute is clear, we need look no further than that language in
determining the statute’s meaning.” Id. With a “straightfor-
ward statutory command, there is no reason to resort to legis-
lative history.” United States v. Gonzales, 520 U.S. 1, 6
(1997). Here, section 802(44) defines “felony drug offense”
as “an offense . . . that prohibits or restricts conduct relating
to narcotic drugs.” Possessing drugs is “conduct relating” to
them. The statutory command here is straightforward, and
Rosales’s arguments about simple possession must fail.
Our case law follows the clear language of the statute. In
United States v. Meza-Corrales, 183 F.3d 1116 (9th Cir.
1999), we held that when determining whether a prior convic-
tion supported an enhancement under 21 U.S.C. § 841, “the
UNITED STATES v. ROSALES 1337
law at issue itself need not relate to (i.e., make mention of)
narcotic drugs but only need mention (for purposes of prohi-
bition and restriction) some conduct that itself relates to (i.e.,
involves the use, possession, or sale of) narcotic drugs.” Id. at
1127 (emphasis added). Other circuits addressing this issue
have reached the same conclusion. See United States v. Curry,
404 F.3d 316, 319 (5th Cir. 2005) (concluding that “the dis-
trict court need only verify that the previous convictions were
(1) felonies and (2) drug offenses”); United States v. Spikes,
158 F.3d 913, 932 (6th Cir. 1998) (concluding that “the stat-
ute encompasses drug offenses that involve the simple posses-
sion of drugs”); United States v. Hansley, 54 F.3d 709, 718
(11th Cir. 1995) (concluding that 21 U.S.C. § 841(b)(1)(A)
applies to convictions for simple possession).
[18] Accordingly, we conclude that the district court erred
in failing to impose the sentencing enhancement under 21
U.S.C. § 841(b)(1)(B).
CONCLUSION
We AFFIRM IN PART and REVERSE IN PART the
district court’s judgment and REMAND for further proceed-
ings consistent with this opinion.