UNITED STATES OF AMERICA v. GIBRAN RICHARDO FIGUEROA-BELTRAN
No. 16-10388
June 6, 2018
D.C. No. 2:15-cr-00176-KJD-GWF-1
Before: Diarmuid F. O‘Scannlain and Johnnie B. Rawlinson, Circuit Judges, and
FOR PUBLICATION
ORDER CERTIFYING QUESTIONS TO THE NEVADA SUPREME COURT
Filed June 6, 2018
*
* The Honorable Sarah S. Vance, United States District Judge for the Eastern District of Louisiana, sitting by designation.
SUMMARY**
Criminal Law / Certification of Questions to Nevada Supreme Court
In an appeal from a criminal sentence, the panel certified the following questions to the Nevada Supreme Court:
- Is
Nev. Rev. Stat. § 453.337 divisible as to the controlled substance requirement? - Does the decision in Luqman conclude that the existence of a controlled substance is a “fact” rather than an “element” of
§ 453.337 , rendering the statute indivisible? If so, can this conclusion be reconciled with Muller? - Does the decision in Muller conclude that offenses under
§ 453.337 comprise “distinct offenses requiring separate and different proof,” rendering the statute divisible as to the controlled substance requirement? If so, can this be reconciled with Luqman?
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
ORDER
The issue for decision in this case is whether
I. Factual and Procedural Background
In 2012, Gibran Figueroa-Beltran (Figueroa), a native of Mexico, was found in possession of one gram of cocaine and 5.8 grams of heroin during a traffic stop. He was convicted in the Eighth Judicial District Court of possession of a controlled substance with intent to sell in violation of
Within two years of his removal, Figueroa illegally reentered the United States, where he was once again arrested for selling a controlled substance. While those charges were pending, Figueroa was charged with 26 other counts of drug-related offenses, including receiving stolen property, receiving a stolen vehicle, being a prohibited person in possession of firearms, operating a place for the sale of controlled substances, possessing for sale Schedule I/II controlled substances, trafficking Schedule I controlled substances (28+ grams), conspiring to violate the federal Controlled Substances Act, and selling Schedule I or II controlled substances.
A federal grand jury later indicted Figueroa for being a deported alien found unlawfully in the United States, in violation of
Figueroa filed a timely appeal challenging the district court‘s application of the 16-level enhancement provided for in U.S.S.G. § 2L1.2.4
II. Governing Federal Law
Section 2L1.2 applied to defendants who “unlawfully enter[ed] or remain[ed] in the United States.” U.S.S.G. § 2L1.2. At the time of Figueroa‘s sentencing on August 24, 2016, Guideline § 2L1.2(b)(1)(A) provided for a base offense level of 8, plus a 16-level enhancement if the defendant was “previously . . . deported” and had a previous conviction for a “drug trafficking offense” with a sentence exceeding 13 months. Id. § 2L1.2(b)(1)(A). The commentary to Guideline § 2L1.2 defined a “drug trafficking offense” as:
an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell 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.
Id. § 2L1.2, cmt. app. n.1 (B)(iv) (2015).
To assess whether a prior conviction under
If
The elements of a statute “are the constituent parts of a crime‘s legal definition—the things the prosecution must prove to sustain a conviction.” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016) (citation and internal quotation marks omitted). In contrast, the means used to fulfill an element is “extraneous to the crime‘s legal requirements.” Id. The facts underlying the means “need neither be found by a jury nor admitted by a defendant” for a conviction. Id. Our divisibility inquiry thus turns on whether the elements of a crime of conviction “are broader than those of a listed generic offense,” without regard to “[h]ow a given defendant actually perpetrated the crime.” Id. at 2251.
If
Section 453.337 prohibits the “possess[ion] for the purpose of sale . . . any controlled substance classified in schedule I or II.”
III. Parties’ Arguments
Figueroa contends that the Nevada Supreme Court decision of Sheriff v. Luqman, 697 P.2d 107 (Nev. 1985), established that
At issue in Luqman was the authority of the state board of pharmacy to “classify drugs into various schedules according to the drug‘s propensity for harm and abuse,” thereby setting the penalties for violations of the relevant statutory provisions. 697 P.2d at 109–10. The Nevada Supreme Court explained:
[T]he legislature can make the application or operation of a statute complete within itself dependent upon the existence of certain facts or conditions, the ascertainment of which is left to the administrative agency. In doing so the legislature vests the agency with mere fact finding authority and not the authority to legislate. . . .
Id. (citations omitted). Luqman held that, “[a]lthough the legislature may not delegate its power to legislate,” such authorization to the board properly “delegate[d] the power to determine the facts or state of things upon which the law makes its own operations depend,” because the agency, by classifying controlled substances, was “only authorized to determine the facts which will make the statute effective.” Id. (citations omitted). Figueroa seizes upon this language to describe the identity of the controlled substance as a “fact” rather than an “element” of
The government counters that the Nevada Supreme Court decision of Muller v. Sheriff, 572 P.2d 1245 (Nev. 1977), establishes that
The sale of heroin and the sale of cocaine are distinct offenses requiring separate and different proof. Here the record shows that two distinct offenses were (probably) committed since the sale of each controlled substance requires proof of an additional fact which the other does not, viz., the particular identity of the controlled substance sold.
Id. (citations, alterations, and internal quotation marks omitted).
The government relies on this language to assert that the Muller decision establishes the divisibility of
Luqman and Muller seemingly stand in conflict. Luqman suggests that the identity of a controlled substance is a non-elemental factual determination. In contrast, Muller appears to conclude that the sale of one controlled substance is an offense distinct from the sale of another, and proof of the identity of the controlled substance at issue is required. Without further guidance, we cannot say with confidence that the Nevada precedent definitively answers the question whether
IV. Certified Questions and Further Proceedings
When engaging in a divisibility inquiry, we look to such authoritative sources of state law as state court decisions and the wording of the relevant state statute. See Mathis, 136 S. Ct. at 2256. If we cannot readily discern the nature of the statute from these sources, we may further look to the record documents—indictments, jury instructions, plea colloquies and plea agreements—for guidance. See id. at 2256–57 and n.7.
With this framework, we respectfully certify the following questions of law to the Nevada Supreme Court:
- Is
Nev. Rev. Stat. § 453.337 divisible as to the controlled substance requirement? - Does the decision in Luqman conclude that the existence of a controlled substance is a “fact” rather than an “element” of
§ 453.337 , rendering the statute indivisible? If so, can this conclusion be reconciled with Muller? - Does the decision in Muller conclude that offenses under
§ 453.337 comprise “distinct offenses requiring separate and different proof,” rendering the statute divisible as to the controlled substance requirement? If so, can this conclusion be reconciled with Luqman?
“Our phrasing of the questions should not restrict the Court‘s consideration of the issues involved. We acknowledge that the Court may reformulate the relevant state law questions as it perceives them to be, in light of the contentions of the parties . . .” Raynor v. United of Omaha Life Ins. Co., 858 F.3d 1268, 1273 (9th Cir. 2017) (citation and alternations omitted). We will abide by the decision of the Nevada Supreme Court, as specified in Nevada Rule of Appellate Procedure 5(h). See Chapman v. Deutsche Bank Nat‘l Trust Co., 651 F.3d 1039, 1048 (9th Cir. 2011). “If the Court determines that the questions presented in this case are inappropriate for certification, or if it declines the certification for any other reason, we will resolve the questions according to our best understanding of [Nevada] law.” Raynor, 858 F.3d at 1273.
We accordingly direct the Clerk of this court to forward a copy of this order, under official seal, to the Nevada Supreme Court, together with copies of all briefs and excerpts of record that have been filed in this court, with a certificate of service on the parties.
We stay further proceedings involving this case pending a response from the Nevada Supreme Court. This appeal is withdrawn from submission and will be resubmitted following the conclusion of proceedings in the Nevada Supreme Court. The Clerk is directed to administratively close this docket, pending further order. We direct the parties to notify the Clerk of this court within one week after the Nevada Supreme Court accepts or rejects the certification, and if it accepts certification, again to notify this court within one week after that court renders its opinion. As required by Nevada Rule of Appellate Procedure 5(c)(5), the names and addresses of counsel appear in the appendix. See Chapman, 651 F.3d at 1048.
It is so ORDERED.
Respectfully submitted,
Diarmuid F. O‘Scannlain and Johnnie B. Rawlinson, Circuit Judges, and Sarah S. Vance, District Judge.
Johnnie B. Rawlinson
United States Circuit Judge, presiding
APPENDIX
Rene Valladares, Federal Public Defender, and Cristen C. Thayer and Amy B. Cleary, Assistant Federal Public Defenders, 411 E. Bonneville, Ste. 250, Las Vegas, Nevada 89101, for Defendant-Appellant.
Dayle Elieson, Interim United States Attorney, Elizabeth O. White, Appellate Chief, and Nancy M. Olson, Assistant United States Attorney, District of Nevada, 501 Las Vegas Blvd. S., Suite 1100, Las Vegas, Nevada 89101, for Plaintiff-Appellee.
Notes
Except as otherwise authorized by the provisions of
NRS 453.011 to453.552 , inclusive, it is unlawful for a person to possess for the purpose of sale flunitrazepam, gamma-hydroxybutyrate, any substance for which flunitrazepam or gamma-hydroxybutyrate is an immediate precursor or any controlled substance classified in schedule I or II.
Nev. R. App. P. 5(h).The written opinion of the Supreme Court stating the law governing the questions certified shall be sent by the clerk under the seal of the Supreme Court to the certifying court and to the parties and shall be res judicata as to the parties.
[A]ny alien who—
(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien‘s reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act . . .
(a) Base Offense Level: 8
U.S.S.G. § 2L1.2 (2015).(b) Specific Offense Characteristic
(1) Apply the Greatest:
If the defendant previously was deported, or unlawfully remained in the United States, after—
(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense, increase by 16 levels if the conviction receives criminal history points under Chapter Four or by 12 levels if the conviction does not receive criminal history points;
(B) a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less, increase by 12 levels if the conviction receives criminal history points under Chapter Four or by 8 levels if the conviction does not receive criminal history points;
(C) a conviction for an aggravated felony, increase by 8 levels;
(D) a conviction for any other felony, increase by 4 levels; or
(E) three or more convictions for misdemeanors that are crimes of violence or drug trafficking offenses, increase by 4 levels.