United States v. Gibran Figueroa-Beltran
995 F.3d 724
| 9th Cir. | 2021Background
- Figueroa‑Beltran, a deported alien, pled guilty to being an alien found unlawfully in the U.S. in violation of 8 U.S.C. § 1326 and faced sentencing after a prior Nevada conviction for possession with intent to sell cocaine under NRS § 453.337.
- The PSR applied a 16‑level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) treating the Nevada conviction as a "drug trafficking offense," producing a guidelines range of 41–51 months; the district court imposed 41 months and three years supervised release.
- Figueroa‑Beltran argued § 453.337 was overbroad because Nevada schedules include substances not in the federal Controlled Substances Act (CSA), and that the statute is indivisible so the Descamps categorical approach barred using the modified categorical documents.
- The district court relied on Ninth Circuit precedent (Benitez‑Perez) and applied the modified categorical approach to the charging document and judgment (which specified cocaine), sustaining the 16‑level enhancement.
- The Ninth Circuit certified questions to the Nevada Supreme Court, which held the identity of the controlled substance is an element of NRS § 453.337 (making the statute divisible); the Ninth Circuit then held the enhancement proper and affirmed the sentence.
- The court also rejected challenges that the district court procedurally erred in criminal‑history findings, failed to consider proposed Guidelines amendments, or improperly imposed supervised release, finding the sentence reasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NRS § 453.337 is a categorical "drug trafficking offense" for § 2L1.2 enhancement | § 453.337 is overbroad because Nevada schedules include substances not in the federal CSA, so conviction cannot categorically qualify | The statute criminalizes possession for sale of controlled substances; prior Ninth Circuit precedent treats it as a qualifying offense | Held: Conviction qualifies after Nevada Supreme Court clarified identity of substance is an element, so statute is divisible and conviction supports enhancement |
| Whether the modified categorical approach may be used (divisibility) | § 453.337 is indivisible; court may not review underlying conviction documents | The statute is divisible because identity of the substance is an element; courts may consult conviction documents | Held: Divisible; modified categorical approach applied to charging document and judgment, which named cocaine |
| Whether district court procedurally or substantively erred (criminal history, proposed Guideline amendments) | Court speculated about dismissed state charges; should have granted a variance based on pending Guidelines amendments | Court reasonably inferred circumstances about dismissed charges; courts are not required to apply proposed (not-yet-adopted) amendments | Held: No reversible error; plain‑error review failed and decline to apply proposed amendments |
| Whether supervised release was improper for a deportable alien likely to be removed | § 5D1.1 ordinarily precludes supervised release for deportable aliens who likely will be removed | "Ordinarily" is discretionary; district court gave specific deterrence justification | Held: Imposition of three years supervised release was permissible and reasonable given particularized justification |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (2013) (articulates the categorical/modified categorical approach)
- United States v. Benitez‑Perez, 367 F.3d 1200 (9th Cir. 2004) (treated NRS § 453.337 as qualifying for § 2L1.2 enhancement)
- United States v. Leal‑Vega, 680 F.3d 1160 (9th Cir. 2012) ("controlled substance" for § 2L1.2 refers to substances listed in the CSA)
- United States v. Martinez‑Lopez, 864 F.3d 1034 (9th Cir. 2017) (possession of cocaine with intent to sell qualifies as a drug trafficking offense for enhancement)
- Figueroa‑Beltran v. United States, 467 P.3d 615 (Nev. 2020) (Nevada Supreme Court: identity of substance is an element of NRS § 453.337)
- Gomez Fernandez v. Barr, 969 F.3d 1077 (9th Cir. 2020) (describes documents permissible under the modified categorical approach)
- United States v. Valdavinos‑Torres, 704 F.3d 679 (9th Cir. 2012) ("ordinarily" in § 5D1.1 gives district courts discretion on supervised release for deportable aliens)
- United States v. Ruiz‑Apolonio, 657 F.3d 907 (9th Cir. 2011) (district courts may grant a variance for proposed but not yet adopted Guidelines amendments)