United States v. Luis Ocampo-Estrada
2017 U.S. App. LEXIS 16511
9th Cir.2017Background
- Ocampo supplied methamphetamine to a dealer (Nooris) over ~1 year; transactions were frequent, often on credit, and Ocampo was the primary source.
- Federal indictment charged Ocampo with conspiracy to distribute methamphetamine under 21 U.S.C. §§ 841, 846; Nooris pleaded guilty, Ocampo was tried and convicted by a jury.
- Government filed a § 851 information relying on a 1998 California conviction under Cal. Health & Safety Code § 11378 to trigger the 20-year mandatory minimum in 21 U.S.C. § 841(b)(1)(A).
- The § 11378 state record in the federal proceeding showed a guilty plea to § 11378 but did not identify which controlled substance was the basis for the plea.
- District court denied Ocampo’s requested buyer-seller jury instruction and imposed the 20-year mandatory minimum; Ocampo appealed both conviction and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence warranted buyer-seller (theory-of-defense) instruction | Gov: evidence showed conspiracy, not mere isolated sales | Ocampo: transactions were buyer-seller and insufficient for conspiracy instruction | District court did not abuse discretion; conviction affirmed |
| Whether Ocampo waived challenge to § 851 enhancement by not timely objecting | Gov: failure to raise before sentencing waived challenge under § 851(c)(2) | Ocampo: district court never conducted required § 851(b) colloquy, so no waiver | No waiver: court failed to ask/advise under § 851(b); review proceeds to merits |
| Whether Cal. § 11378 is divisible for the modified categorical approach | Gov: statute could be treated as single offense | Ocampo: statute overbroad; must show particular drug element | § 11378 is divisible (controlled substance is an element); modified categorical approach applies |
| Whether government proved the prior conviction was for a listed federal “felony drug offense” | Gov: relied on state abstract/minutes and defendant’s presentence remark about methamphetamine | Ocampo: record does not show which drug was pleaded to; presentence remark is insufficient | Gov failed to prove which controlled-substance element supported the § 11378 plea; sentence vacated and remanded for resentencing |
Key Cases Cited
- United States v. Moe, 781 F.3d 1120 (9th Cir. 2015) (buyer-seller instruction standard and defendant’s right to an instruction supported by evidence)
- United States v. Bello‑Bahena, 411 F.3d 1083 (9th Cir. 2005) (standard of review for denial of jury instruction)
- United States v. Jackson, 726 F.2d 1466 (9th Cir. 1984) (instruction admissibility requires some evidentiary foundation)
- United States v. Rodriguez, 851 F.3d 931 (9th Cir. 2017) (strict compliance required for § 851(b) colloquy; failure renders waiver argument invalid)
- United States v. Hollis, 490 F.3d 1149 (9th Cir. 2007) (use of categorical approach for prior convictions)
- United States v. Pimentel‑Flores, 339 F.3d 959 (9th Cir. 2003) (government bears burden to prove prior conviction qualifies for enhancement)
- United States v. Sahagun‑Gallegos, 782 F.3d 1094 (9th Cir. 2015) (inquiry limited to Shepard‑approved documents when using modified categorical approach)
- Shepard v. United States, 544 U.S. 13 (2005) (limited set of documents may be consulted to identify the statutory basis of a prior conviction)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (prohibits using underlying facts to determine categorical match)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (explains divisible statutes and when the modified categorical approach is appropriate)