United States v. Martinez-Lopez

864 F.3d 1034

UNITED STATES of America, Plaintiff-Appellee,

v.Melvin MARTINEZ-LOPEZ, AKA Jorge Lopez, AKA Melvin Miscael Martinez, AKA Miguel Angel Rodriguez, AKA Manuel Rodriguez-Pena, Defendant-Appellant.

No. 14-50014

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc January 17, 2017, San Francisco, California

Filed July 28, 2017

David Menninger (argued) and Matthew B. Larsen, Deputy Federal Public Defenders; Hilary L. Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant.

L. Ashley Aull (argued), Assistant United States Attorney, Criminal Appeals Section; Robert E. Dugdale and Lawrence S. Middleton, Chiefs, Criminal Division; United States Attorney's Office, Los Angeles, California; for Plaintiff-Appellee.

Vincent J. Brunkow and Kara Hartzler, Federal Defenders of San Diego, Inc., San Diego, California, for Amici Curiae Ninth Circuit Federal Public and Community Defenders.

Albert Camacho, Jr., Graciela Martinez, Albert J. Menaster, and Ronald L. Brown, Los Angeles, California, as and for Amicus Curiae Los Angeles County Office of the Public Defender.

Before: Sidney R. Thomas, Chief Judge, and Stephen Reinhardt, Alex Kozinski, Diarmuid F. O'Scannlain, M. Margaret McKeown, Marsha S. Berzon, Richard C. Tallman, Richard R. Clifton, Jay S. Bybee, Consuelo M. Callahan and Carlos T. Bea, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge Berzon ;

Partial Concurrence and Partial Dissent by Judge Bybee ;

Dissent by Judge Reinhardt

OPINION

TALLMAN, Circuit Judge:

OVERVIEW

We took this case en banc to revisit the divisibility of California drug statutes.¹ This case involves California Health and Safety Code section 11352, which—like many California drug statutes—criminalizes a variety of activities related to certain controlled substances identified by reference to other code provisions. If a categorically overbroad statute like section 11352 is divisible, then it is subject to the modified categorical approach, and a prior state conviction under that statute might constitute a predicate "drug trafficking offense" under the federal sentencing guidelines. We clarify the analysis to be employed in light of the most recent guidance from the United States Supreme Court.

Melvin Martinez-Lopez was convicted of illegal reentry following deportation in violation of 8 U.S.C. § 1326. The district court assumed that section 11352 is divisible based on our prior decisions, and concluded that Martinez-Lopez's prior conviction under section 11352 qualifies as a federal drug trafficking offense under the modified categorical approach. It therefore imposed a 16-level enhancement to his base offense level and sentenced him to 77 months in prison.

On appeal, Martinez-Lopez argues that section 11352 is indivisible with regard to both its controlled substance requirement and its actus reus requirement. We disagree, and conclude that both requirements are elements under Mathis , thus rendering section 11352 divisible and subject to the modified categorical approach. Because Martinez-Lopez previously pled guilty to selling cocaine, which qualifies as a drug trafficking offense under the guidelines, and because his sentence is substantively reasonable, we affirm.

I. BACKGROUND

As a child, Miguel Angel Rodriguez—known in this case as Melvin Martinez-Lopez—ran away from his family in Guatemala to escape physical abuse by his alcoholic father. He entered the United States illegally when he was 12 years old and moved in with his aunt in Los Angeles County. Later, he began living on the streets and in shelters. He eventually became involved with a local street gang and started selling drugs.

Martinez-Lopez was convicted in California state court of selling cocaine in 1993, and again in 1994. He was deported upon release from his 1994 prison sentence, but he promptly returned to the United States. In January 1998, Martinez-Lopez was again convicted for selling cocaine after he pled guilty to violating California Health and Safety Code section 11352(a), which makes it a crime to transport, import, sell, furnish, administer, give away; or offer to transport, import, sell, furnish, administer, or give away "any controlled substance specified" in a number of cross-referenced code provisions. Martinez-Lopez served time in state prison and was again deported upon release in 2001.

Martinez-Lopez continued his recidivist pattern of returning to the United States after deportation—in part to be with his children and their mother, whom he considers to be his wife. In 2003, he was convicted of illegal reentry, sentenced to 21 months in federal prison, and deported upon release. In 2006, he was again convicted of illegal reentry, sentenced to 77 months in prison, and deported upon release. Finally, in 2014, he was once again convicted of illegal reentry and is now serving another 77-month sentence.

This final sentence is at issue before us. The district court based the current 77-month sentence on a guidelines sentencing range of 70 to 87 months, which was itself driven by the 16-level enhancement. This enhancement is imposed under the federal sentencing guidelines when a defendant was previously deported following a conviction "for a felony ... drug trafficking offense for which the sentence imposed exceeded 13 months." U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2L1.2(b)(1)(A)(i) (U.S. Sentencing Comm'n 2012).² To qualify as a drug trafficking offense under the guidelines, the offense must involve a substance listed in the Controlled Substances Act, 21 U.S.C. § 801 et seq .,see United States v. Leal-Vega , 680 F.3d 1160, 1167 (9th Cir. 2012), and involve the violation of a law which "prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance ... or the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 2L1.2 cmt. n.1(B)(iv).

The district court recognized that a conviction under California's section 11352 does not categorically qualify as a drug trafficking offense because section 11352 criminalizes a broader range of activity and a greater variety of controlled substances than does federal law. See Mielewczyk v. Holder , 575 F.3d 992, 995 (9th Cir. 2009) ( section 11352 categorically overbroad with regard to its controlled substance requirement); United States v. Rivera-Sanchez , 247 F.3d 905, 909 (9th Cir. 2001) (en banc) ( section 11352 categorically overbroad with regard to its actus reus requirement), superseded on other grounds by U.S.S.G. § 2L1.2 cmt. n.4 (2002).³ However, the district court went on to determine that the prior conviction nonetheless qualified as a drug trafficking offense under the modified categorical approach—relying on our prior determination that section 11352 is a divisible statute. See Huitron-Rocha , 771 F.3d at 1184. Because a California Superior Court plea colloquy shows that Martinez-Lopez pled guilty to selling cocaine, the district court concluded that the section 11352 conviction qualified as a predicate drug trafficking offense. It therefore applied the 16-level enhancement, which resulted in a guidelines range of 70 to 87 and a sentence of 77 months in prison.

Martinez-Lopez raises three arguments on appeal. First, he argues that his 1998 conviction cannot qualify as a predicate drug trafficking offense because section 11352 is indivisible with regard to its controlled substance requirement. Second, he argues that section 11352 is indivisible with regard to its actus reus requirement. Third, he argues that his sentence is substantively unreasonable. We reject each in turn.

II. DISCUSSION

We apply a three-step analysis to determine whether a prior conviction under state law qualifies as a predicate drug trafficking offense under the federal sentencing guidelines. First, we ask whether the state law is a categorical match with a federal drug trafficking offense. See Taylor v. United States , 495 U.S. 575, 599–600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). At this step, we look only to the "statutory definitions" of the corresponding offenses. Id. at 600, 110 S.Ct. 2143. If a state law "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. United States v. Hernandez , 769 F.3d 1059, 1062 (9th Cir. 2014) (per curiam). In that scenario, a conviction under state law automatically qualifies as a predicate drug trafficking offense—ending our analysis. See Taylor , 495 U.S. at 599, 110 S.Ct. 2143.

We have already held that section 11352, like many California drug statutes, is not a categorical match with a federal drug trafficking offense. See Mielewczyk , 575 F.3d at 995 (controlled substance requirement); Rivera-Sanchez , 247 F.3d at 909 (actus reus requirement). This case, therefore, turns on the second step of our analysis.

At the second step, we ask whether section 11352 is a divisible statute which "sets out one or more elements of the offense in the alternative." Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). In Mathis , the Supreme Court reiterated the importance of the abstract comparison of elements, explaining that a statute is divisible only when it "list[s] elements in the alternative, and thereby define [s] multiple crimes." 136 S.Ct. at 2249. Mathis did not change the rule stated in Descamps ; it only reiterated that the Supreme Court meant what it said when it instructed courts to compare elements.

However, Mathis also instructed courts not to assume that a statute lists alternative elements and defines multiple crimes simply because it contains a disjunctive list. Id. Although we properly articulated the elements-based test before Mathis was decided, see Rendon v. Holder , 764 F.3d 1077, 1086 (9th Cir. 2014), our prior decisions on California drug statut...