United States v. Melvin Martinez-Lopez

many turbed. There are at least as valid to not to judge

reasons for circuit decide to banc as there are

vote rehear case en to justice decide Indeed, there is grant certiorari. vote reason—Supreme one additional least to the los-

Court review remains available court,

ing litigant our so it is not neces- have the last word on

sary that each us

every suggest case. No one would its Court exercises dis- certiorari, “tacitly it is grant

cretion not

affirming” the below. No different decision

legal or factual conclusion can be made

here. who

Judges our court—even those participate voting—are

cannot en-

tirely failure to free criticize court’s

grant rehearing express en banc and their why panel as to decision is

own views impute But it is not correct to

incorrect. discretionary meanings

hidden deci- judge of others. chooses not

sions When

to indicate merits a contro- views

versy, colleagues not invent should them. America,

UNITED STATES

Plaintiff-Appellee, MARTINEZ-LOPEZ, Jorge AKA

Melvin Martinez,

Lopez, AKA Melvin Miscael Rodriguez, Miguel Angel AKA

AKA Rodriguez-Pena,

Manuel Defendant-

Appellant.

No. 14-50014 Appeals,

United States Court of

Ninth Circuit.

Argued January En Banc Submitted

17, 2017, Francisco, San July

Filed Partial Dissent

Partial Concurrence and BYBEE; by Judge by Judge Dissent REINHARDT Menninger (argued) David and Matthew OPINION Larsen, Public Deputy B. Defend- Federal TALLMAN, Judge: Circuit ers; Potashner, Hilary L. Federal Public Defender; De- Public Office Federal

fender, California; Los for Defen- OVERVIEW Angeles, dant-Appellant. took this case to revisit the en banc We L, Ashley (argued), Unit- Aull Assistant divisibility drug of California statutes.1 Attorney, Appeals ed States Criminal Sec- California and This case involves Health tion; Dugdale Robert Lawrence E. and S. Safety Code section which—like Middleton, Chiefs, Division; Unit- Criminal many drug statutes—criminal- Office, Attorney’s Angeles, ed Los States variety of certain izes a activities related to California; Plaintiff-Appellee. by refer- substances identified controlled Hartzler, J. Kara If provisions. categor-

Vincent Brunkow and to other ence code Inc., Diego, Federal ically Defenders San San overbroad statute like section 11352 California, Diego, divisible, subject' Amici Curiae Ninth it is to modi- then Community Circuit categorical approach, prior Federal Public and De- and a state fied might fenders. under that statute consti- predicate “drug trafficking offense” tute Camacho, Jr., Martinez, Albert Graciela guidelines. sentencing under the federal Menaster, Brown, J. Ronald L. Albert and clarify analysis to employed We California, Angeles, Los and Amicus as light guidance of the most recent from the Curiae Los Angeles County Office of the Supreme States United Court. Public Defender. Martinez-Lopez Melvin was convicted THOMAS, R. Chief Before: SIDNEY following reentry deportation in vio- illegal REINHARDT, Judge, and STEPHEN lation 1326. district U.S.C. KOZINSKI, F. ALEX DIARMUID that section 11352 is court assumed divisi- O’SCANNLAIN, M. MARGARET decisions, prior ble based on our con- and BERZON, McKEOWN, MARSHA S. prior convic- Martinez-Lopez’s cluded that TALLMAN, RICHARD RICHARD C. R. qualifies tion under section BYBEE, CLIFTON, CONSUELO JAY S. drug trafficking offense under the federal BEA, T. M. CALLAHAN and CARLOS categorical approach. It therefore modified Judges. Circuit to imposed a 16-level enhancement his Dissent level sentenced him to Partial Concurrence and Partial base offense and BERZON; by Judge prison. months in — States, U.S. —, was v. United cause Guevara based related decisions In Guevara (2016), statutes, see, drug involving similar California L.Ed.2d S.Ct. certiorari, Holder, (9th granted e.g., vacated 759 F.3d 977 Coronado Health, 2014); Huitron-Rocha, our, finding Cir. States decision and divisible, (9th 2014); re Safety Code and F.3d Cir. United States v. section 11351 Torre-Jimenez, 2014), reconsider 771 F.3d 1163 Cir. manded instructions to with — States, —, light respond to the Court’s instruc Mathis v. United U.S. by revisiting line Be- tion the entire of cases. L.Ed.2d Martinez-Lopez argues that appeal, Martinez-Lopez On continued his recidivist pattern returning indivisible with to the United States requirement deportation—in part both its controlled substance after to be his requirement. mother, its actus reus dis- We children and their whom he con- agree, require- and conclude both siders to be In his he wife. was illegal are elements under thus reentry, ments convicted sentenced rendering section 11352 divisible sub- 21 prison, months federal deported categorical ject approach. modified upon again release. he con- was MartinezrLopez previously pled Because illegal reentry, victed of sentenced' cocaine, selling qualifies guilty prison, deported upon months re- drug trafficking guide- offense under the Finally, lease. again he once lines, and illegal because his sentence substan- reentry convicted and is now reasonable, tively we serving affirm. another 77-month sentence. This final sentence issue before us. I. BACKGROUND The district court current based the 77- child, Miguel Angel Rodriguez— As a month a guidelines sentencing sentence on

known in this case as Melvin Martinez- months, range of to70 which was itself Lopez—ran away family from his in Gua- by driven the 16-level enhancement. This escape temala to physical abuse his imposed enhancement is under the federal alcoholic father. He entered the United sentencing guidelines when a defendant illegally years States when he was old previously deported was following a con and in his aunt in Los Angeles moved with .., felony viction “for drug trafficking Later, County. began living he on the offense for imposed which thé sentence He eventually streets and shelters. be- Sentencing exceeded 13 months.” U.S. came local gang involved with a street (U.S.S.G.) Manual Guidelines selling drugs. started 2L1.2(b)(1)(A)(i) (U.S. § Sentencing 2012).2To qualify drug Comm’n as a traf Martinez-Lopez in Cali- was convicted . ficking guidelines, offense under the selling fornia state court of cocaine offense must involve substance listed again in He deported upon was 1994. Act, the. Controlled Substances U.S.C. sentence, prison his release from but § seq., 801 et see United u Leal- States he promptly the United States. returned (9th 2012), Vega, 680 F.3d Cir. January Martinez-Lopez was of a involve law the violation which again selling cocaine after he convicted for manufacture, “prohibits the import, export, pled guilty violating California Health distribution, of, dispensing or offer to 11352(a), Safety arid Code pos a controlled or the sell substance ... transport, sell, it import, makes a crime to of a ... session controlled substance with administer, furnish, give or offer away; manufacture, export, intent to import, dis sell, administer, furnish, transport, import, tribute, § dispense.” U.S.S.G. 2L1.2 give away “ariy controlled substance n.1(B)(iv). cmt. specified” ain number of cross-referenced provisions. Martinez-Lopez recognized code con- served district that a time prison again deport- state was California’s section viction under upon ed categorically qualify drug 2001. release does as a Martinez-Lopez subsequent vised on occasions sentenced under 12, 2012, November edition of the federal years. sentencing guidelines, which have been re- II. DISCUSSION

trafficking offense because section activity range broader criminalizes apply three-step analysis We variety of sub greater controlled and a prior conviction un determine whether a law. than does federal See Mielew stances drug as a qualifies predicate state der law (9th Holder, 992, 995 Cir. 575 F.3d czyk v. sen trafficking offense under the federal (section 2009) categorically over- First, tencing guidelines. ask sub regard to controlled its broad categorical state law is match with a v. Riv United States requirement); stance trafficking Tay drug offense. See federal era-Sanchez, Cir. F.3d States, 575, 599-600, lor v. United U.S. (en banc) (section 2001) categorically At 109 L.Ed.2d S.Ct. reus regard to its actus overbroad with “statutory step, this we look other superseded requirement), offenses. corresponding definitions” of the n.4 2L1.2 cmt. grounds U.S.S.G. 2143. If a state Id. law (2002).3However, went the district court or less “proscribes the same amount of prior on to determine that the qualifying than” as a federal conduct trafficking drug qualified as a nonetheless offense, of trafficking two drug then the ap categorical offense under modified categorical fenses are a match. prior on our determina proach—relying Hernandez, States v. 769 F.3d a divisible stat tion that section is 2014) curiam). (9th In that sce (per Cir. Huitron-Rocha, at 1184. F.3d ute. See nario, a conviction auto under state law plea Superior Because a California Court drug matically qualifies predicate traf Martinez-Lopez pled colloquy shows analysis. ficking offense—ending our cocaine, guilty selling the district court 599, Taylor, 495 110 S.Ct. 2143. U.S. that the section 11352 conviction concluded 11352, already have held that section We qualified drug trafficking as a predicate statutes, drug not a many California is like applied offense. It therefore the 16-level drug traf- categorical match with federal enhancement, guide resulted which ficking Mielewczyk, offense. See 575 F.3d range of 70 to 87 a sentence lines (controlled requirement); at 995 substance prison. months (actus Rivera-Sanchez, at 909 247 F.3d Martinez-Lopez arguments raises three therefore, case, requirement). This reus First, appeal. argues he that his step analysis. of our turns the second qualify predicate cannot as a conviction step, At the second we ask whether sec drug trafficking offense because section tion statute “sets 11352is divisible which con- regard 11352 is indivisible with to its of the Second, out one more elements offense requirement. he trolled substance Descamps v. United the alternative.” argues that section 11352 indivisible — U.S. —, 2281, States, 133 S.Ct. regard requirement. with to its actus reus (2013). Mathis, Third, sub- 186 L.Ed.2d argues he that his sentence is importance Court stantively reject each reiterated unreasonable. We elements, comparison of the turn. abstract categorically categorically overbroad because it crimi overbroad also 3. Section 11352 requirement transportation its reus be- of a sub actus controlled nalized use, the mere "offer to” com- drug cause it criminalizes personal which is not a stance a controlled mit certain offenses related to trafficking under the Controlled Substances offense Rivera-Sanchez, 908- 247 F.3d at substance. Rosales-Agui States v. Ac t. See United The version of section 11352 in effect at (9th 2016). lar, 818 F.3d Cir. Martinez-Lopez’s was conviction the time explaining only that a statute is divisible listed items are elements of alternative, it “list[s] when elements the offense” under state law. Id. at 2256- thereby multiple (alterations crimes.” define[s] quotation marks omit- change S.Ct. at 2249. Mathis ted) did (quoting Holder, Rendon v. 782 F.3d in Descamps; rule it (9th stated reiterated Cir.2015) (Kozinski, J., 473-74 meant what it said dissenting banc)). from reh’g denial en compare it instructed courts ele- Finally, the Court observes that in most ments. cases we will be able to determine whether a law is divisible or Id. at indivisible.

However, Mathis also instructed courts (“[indeterminacy prove should more the to assume that a statute lists alterna rule.”). than exception tive and defines crimes simply disjunctive because it contains a If section 11352 is divisible under Although properly list. Id. we articulated Mathis, may proceed then we to the third the elements-based test before Mathis step in analysis apply our the modified decided, Holder, see Rendon v. 764 F.3d categorical approach. At step, this ex 2014), Cir. prior our deci judicially amine noticeable documents drug sions on California statutes have of “to statutory determine put emphasis disjunctive- ten undue on the phrase was the basis for the conviction.” See, list e.g., rationale criticized Mathis. Descamps, 133 S.Ct. at 2285 (quoting Huitron-Rocha, (relying 771 F.3d at 1184 States, Johnson v. United 559 U.S. on Coronado to find section 11362 divisi (2010)). 130 S.Ct. 176 L.Ed.2d 1 ble); Torre-Jimenez, 771 F.3d 1166-67 If pled guilty was found (relying on Coronado to find Section constituting the elements drug a federal divisible); Coronado, (“[B]y 759 F.3d at 984 offense, trafficking prior state convic terms, 11377(a) very potential its list[s] tion predicate serve as a offense un offense the alternative.... sentencing guidelines. Shepard der the categorical approach Use the modified is States, 13, 16, 125 v. 544 U.S. ” (citation appropriate.... therefore and 1254, 161 (2005). 205 L.Ed.2d omitted)); quotation marks see also Gue vara, repeating 136 It bears (vacating may ap S.Ct. at 2542 that we decision relying on remanding ply categorical approach only Torre-Jimenez and the modified Mathis). light for reconsideration in when we first determine that a statute a divisible—if statute is both overbroad Instead, Mathis instructs us to consult indivisible, prior and a conviction under “authoritative of state sources law” de- qualify that will a predi statute never as termine a contains statute alter- drug trafficking cate offense under the defining multiple native elements crimes sentencing guidelines. For federal this rea by alternative means which a defendant son, Martinez-Lopez’s case turns Mathis, might commit the same crime. divisibility of 11352. section begins by S.Ct. at 2256. The Court de- scenarios, scribing “easy” two which occur Requirement A. Controlled Substance (1) when a “definitively state court decision Martinez-Lopez argues first (2) question,” answers the statute prior his conviction cannot qualify as a “on ... its face resolve[s] issue.” Id. predicate 11352 is offense section explains The Court then that “if law because state answers,” with provide fails to clear indivisible its controlled should we “peek requirement. at the documents ... for the substance We review divisi record novo, sole purpose determining bility limited of a statute and de Almanza-Are holding 469, to cast' doubt on the cases” Lynch, 815 Cir. tend nas v. F.3d “ 2016) (en banc), disagree. of different possession and we ‘simultaneous separate” items of crimes contraband’ are to the respect controlled substance With omitted)). (citation is an this requirement, we conclude a “state court “easy” because decision case its progeny, As Adams a result definitively question.” answers subjected to routinely defendants are mul 1975, 136 S.Ct. 2256. for tiple single convictions under statute Adams, 14 Supreme Court In re decided con-" single multiple as it act relates 629, 73, Cal.Rptr. 536 P.2d 473 Cal.3d See, e.g., People trolled v. substances. of thé Adams section addressed 710, Monarrez, Cal.App.4th 78 Cal. Code, prohibits Penal (1998) 247, (finding no Rptr.2d viola “act single multiple sentences for ror separate affirming tion of section punishable different omission that possession'of sentences simultaneous Cal. provisions law.” ways different heroin and cocaine sale violation that, under Penal Code Adams held 11351). excep section Section 11352 is receive defendant cannot practice. tion prosecutorial charging to this multiple for the sentences simultaneous See, Adams, e.g., Cal.Rptr. drugs transportation of different types bf section (finding violation P.2d 475-77 differ transports the the defendant approving multiple 654 but otherwise drugs single objective. criminal ent with a transportation simultaneous convictions for But 536 P.2d at Cal.Rptr. 476-77. pantopon in of sec of heroin violation disap it “d[id] Adams cautioned that 11352); People Chung, tion v. 237 Cal. multiple imposing prove” of cases earlier App.4th Cal.Rptr.3d 878-80 possession' sentencés simultaneous (same (2015) regard to simultaneous Id., drugs. Cal.Rptr. different base). to sell cocaine cocaine offers (citing, e.g., People Lock P.2d at 477 routinely sub Because defendants wood, 75, 61 Cal.App.2d convictions, jected to such and because (1967); Lopez, Cal.App.2d People such, recognized sepa (1959)). convictions are Instead, Adams 337 P.2d 570 cases, the California rate crimes distinguished explaining those Court, long ] answer[ ]”: have multiple “definitive[ proper .sentences are so requirement objec controlled substance has criminal in example, “al when a does describe simply tives—for section 11352 multiple buyers». committing to to Id. of sell of one tends ternative methods (citation, 136 fense.” S.Ct. 2256 Moreover, of implicitly approved Adams alterations, marks omitted quotation multiple convictions even a defen Rather, quotation). because “the second single objective be dant has criminal not essen possession one is [substance] cause Adams modified criminal [sub tial of another possession by staying mul judgment execution 604, stance],” Hayes, re 70 Cal.2d 75 sentences, leaving tiple separate intact (1969) 790, 430, 436 451 P.2d Cal.Rptr. Id., 73, Cal.Rptr. 536 convictions. 122 P.2d C.J., dissenting), (Traynor, on Supreme at 479. The Court has California overruled Jones, grounds by Cal.Rptr.3d 142 other recently principles these as reaffirmed at 826-27, 561, cre section 350, 278 11352 Jones, P.3d People Cal.4th v. crimes, containing 561, separates, each “an 821, Cal.Rptr 3d 278 P.3d ates other,” (2012), but (finding violation of element not section contained 550, (9th Ford, reiterating that not in- tates v. 371 F.3d the court S “do[es] 2004) added) (quoting Cir. Unit (emphasis Requirement B. Actus Reus Dixon, 696, 688, ed v. 509 U.S. States Martinez-Lopez next argues pri- that his (1993), 2849, 125 L.Ed.2d 556 which cannot qualify predicate as a jeopardy). describes the test double offense the federal sentencing under Thus, regard 11352is section divisible with guidelines because section is indivisi- requirement; to its controlled ble with to its require- actus reus- substance disagree ment. and conclude We that Mar- Although look no we,.need be further (cid:127) tinez-Lopez’s argument is by foreclosed Supreme cause the California Court has controlling another state decision. issue, Mathis, on spoken see 136 S.Ct. Patterson, In People 49 Cal.3d 2256, our conclusion is also supported Cal.Rptr. (1989), 778 P.2d 549 authority on persuasive law. California California ap Court considered example, jury For instructions plication felony-murder of the doctrine to require jury identifying to fill in a blank convictions section 11352. under Patterson substance”—i.e., only “a one- controlled that, first explained felony-mur under the demonstrating identify that the must doctrine, der courts must evaluate in unanimously agree on particular herent dangerousness a crime based on controlled substance. Council of Judicial felony “the the ab Jury California Criminal. Instructions stract,” on the “particular based (CALCRIM) 2301; see also United States Id., facts the case.” Cal.Rptr. Vidal, 1072, 1084 n.20 F.3d Cir. (citation at 554 778 P.2d and internal quo 2007) (en banc) (noting that the California tation marks omitted in quotation). second Jury Criminal below, Instructions “are the official It then reversed decision instructions "foruse the state Califor that “a concluded violation section id., 2.1050)). 11352” not dangerous, (quoting inherently nia” Cal. Rules Court Cal.Rptr. P.2d Additionally, leading and held commentator proper inquiry that the is instead whether specified con “[a] law describes specific “the of furnishing offense cocaine” common trolled substance” as an element id., dangerous, inherently Witkin, drug criminal all offenses. Cal. P.2d at went 2012). 102(1)(a)(4th Crim. Law ed. explain that: point by We see need belabor the To separately proscrib- statutes create arguments responding Martihez-Lopez’s sale, ing importation, furnishing, ad- regarding decisions California appellate ministration, etc., of drugs, of these each courts. Because the California require the would enactment of hun- recognizes multiple dreds It ap- individual statutes. thus convictions for a act it relates to single, pears the sake of convenience substances, Jones, see controlled Legislature has included various 561, 827; 142 Cal.Rptr.3d 278 P.3d statute. offenses in one 477, Adams, 73, 122 Cal.Rptr. 536 P.2d at Id., 195, Cal.Rptr. 262 778 P.2d at 556. , implicitly it has held that the controlled way, unequivocally Patterson this that held is an requirement substance element. As separate section 11352 “creat[es] ... law, expositor the final of California crimes” based alternative actus rei ele reasoning persuasive and find its conclude ments, not merely does describe “al regard that section 11352 is divisible with ways single of satisfying ternative [actus Mathis, requirement. to its controlled reus] substance element.” 136 at 2250. S.Ct. 1042 by swayed our conclusion

Martinez-Lopez insists that Patterson Nor is Many nothing by Martinez-Lopez. distinction has to do with Mathis’s decisions cited actually and means because it not conflict between elements of these decisions do prosecution “the does discuss what reading our of Patterson. For exam with by prove” must be “found must and what ple, People v. Guiton affirmed a conviction by a 136 jury []or admitted defendant.” transporting” 4 “selling cocaine. (citation quotation at 2249 mark S.Ct. 1116, 365, Cal.Rptr.2d 847 P.2d Cal.4th 17 omitted). It is true Patterson did not that 45, (1993). Martinez-Lopez argues 46 that terms. describe its decision these How proves this that combined ever, Patterson did its describe method requirement is not an element. actus reus “elements,” 262 comparison an abstract recognized that the expressly But Guitón 553, 195, Cal.Rptr. P.2d at which are— 778 agree com jury “had to that defendant by “prosecution definition—what the must Id., Cal.Rptr.2d the same act.” 17 mitted conviction,” Mathis, prove sustain 136 365, at 51. rests on 847 P.2d Guiton thus (quoting Dictio S.Ct. 2248 Black’s Law error, principles of harmless and does 2014)). nary 634 ed. We will not reading our of Patterson. conflict with that assume 365, Guiton, Cal.Rpt P.2d at 54 17 r.2d 847 recognize significance of this failed (concluding that there was no “reasonable term, or actually it did not mean probability found the defen purported compare “elements” when it solely guilty [unsupported] dant on the “elements.” at 2254 Cf. Mil, theory”); People see v. sale also (“[A] good reading rule of thumb for ... 400, 339, Cal.Rptr.3d Cal.4th 266 P.3d they say is that what and what decisions (2012) (“[T]he 1030, 1039 omission of one ”). they mean are one and the same.... charged ... or more elements of offense assumption especially an is un Such er is amenable review harmless in light founded of the California ”). ror .... conclusion We come to the same reliance on Patterson Court’s continued Cornejo, People with Cal. See, e.g., rationale. and its elements-based 637, (1979), App.3d Cal.Rptr. Mason, 909, People v. 62 Cal.3d 277 Cal. which notes that a violates sec 950, (1991) Rptr. (citing 802 P.2d gives away tion he sells “[wjhether explaining Patterson and a heroin, at 250. id. felony inherently dangerous pur is Finally, to the extent that the deci cited degree felony-murder poses of the second Patterson, conflict sions do we find by viewing determined rule unpersuasive. Many of these them deci (emphasis felony of the the abstract” unpublished, rely and we will not sions (citations added) omitted)); How People v. them. See Cal. Rules Court 8.1115. ard, Cal.Rptr.3d Cal.4th predate, Others and have been overruled (2005) (same). Moreover, P.3d with, they to the extent that conflict Pat inappo- Patterson it is to see how hard Patterson, 262 Cal.Rptr. terson. See rejects expressly site when it Martinez- (cit (Mosk, J., dissenting) 778 P.2d at Lopez’s theory, then advanced Justice 250; “[sjection ing Cornejo, Cal.Rptr. People Mosk, Stanley 11352 in ef Pierre, Cal.App.2d ways prohibits means] fect different [or (1959)). remaining targeted cases were engaging the same criminal Appeal. Courts of conduct—trafficking illegal narcotics.” decided 195, (Mosk, Supreme Court Cal.Rptr. 262 P.2d at 565 Because the California has 778 J., reject dissenting). say, we as final these decisions

1043 case, In they to the extent that conflict this properly erroneous the district court with Patterson.4 plea colloquy examined the in which Mar- asked, tinez-Lopez was “[0]n about De- requirement hold that the actus reus We 31st, 1997, cember ... you co- [did] sell is an under Mathis element because grams caine base—.42 of cocaine base?” Supreme Court examined the responded, He ‘Tes.” Based on this ex- section 11352 the abstract change, say—with certainty we can separately that and concluded the statute that Taylor demands—that Martinez-Lo- variety including “a defines offenses” pez’s 1998 conviction under section 11352 sale, “importation, furnishing, adminis selling was for tration, etc., cocaine. 136 S.Ct. drugs.” of each of [the listed] at Patterson, 195, drug 2257. Because this constitutes Cal.Rptr. 262 778 P.2d trafficking under offense the federal sen- 556. Section is therefore divisible tencing guidelines, cor- regard requirement.5 with to its actus reus the district court rectly imposed a 16-level enhancement Application of C. the Modified illegal reentry the base offense level for Categorical Approach correctly guidelines and calculated a sen- Because section 11352 is divisible tencing range of to months. to both its controlled sub requirement its actus re

stance reus D. Substantive Reasonableness quirement, proceed step we the third Finally, reject we Martinez-Lo analysis apply our the modified cate pez’s argument within-range that his 77- gorical approach. approach, Under this we month substantively sentence is unreason beyond statutory look text to a limited for a able third identical conviction. We “to stat set documents determine which significant afford deference a district utory phrase was the basis the convic (citation court’s under 18 sentence U.S.C. Descamps, tion.” 133 S.Ct. omitted). if only applied and reverse the court an “the These documents include legal incorrect or if transcript rule the sentence was plea agreement terms of a colloquy “illogical, implausible, support ... in which factual basis without plea inferences drawn from the confirmed the defendant.” that be 26, 1254. Shepard, U.S. at facts the record.” United States same, Although colleague Judge sug- our Berzon mine whether two offenses are the gests presumptuous "[ljegislature that "to deem court must ask whether these state decisions incorrect multiple] meant to define one of- [or law,” Dissenting Concurring Op. state see & Id., 556, Cal.Rptr.3d 377 P.3d fense[s].” 1050, we reiterate that most of these decisions Vidana, explained at 808. In the court that the explained finding harmless can error, Mil, legislature larceny had taken and embezzle- Cal.Rptr.3d see P.3d ment, previously sepa- which were treated degree likely conflict offenses, rate [them] and “consolidated into minor. single offense of theft” via a number additions and amendments to the California partial suggests 5. The concurrence our Id., Cal.Rptr.3d Penal Code. reading People tension with Patterson legislature P.3d at 808. The no such has made Vidana, Cal.Rptr.3d Cal.5th here, amendments does other- Vidana Vidana, disagree. 377 P.3d 805 We suggest wise the California the California Court held de- legis- will revisit its conclusion subjected multiple fendant cannot be con- variety "a lature defined offenses” sec- victions for the same offense based on "alter- Patterson, Id., legal Cal.Rptr.3d tion 11352. nate theories.” that, 377 P.3d at 817. It observed to deter- P.2d at 556. (9th Hinkson, judge “required a is not to sen Cir. 585 F.3d Because (en banc). 2009) sentencing at a variance with” the tence Mitchell, guidelines, States v. United Martinez-Lopez argues that his 77- (9th 2010) (quoting Cir. F.3d substantively is unreason- month sentence Corner, United States F.3d illegal reentry his offense and able because (7th 2010)), Cir. and because sentence nonviol- underlying drug offense were his childhood, “illogical, on is not im ent, a record he had based this troubled because Hinkson, trying plausible, support,” is to a and he establish or without because ar- family in He also States. we affirm Martinez-Lo F.3d gues that the 16-level enhancement led to pez’s substantively as 77-month sentence ... “artificially an inflated” sentence. reasonable. that section we conclude Because III. CONCLUSION is and the 16-level enhance

11352 divisible sen proper, Martinez-Lopez’s ment was 11352 is to Section divisible with Moreover, artificially tence is not inflated. requirement both its substance controlled although required court is to district requirement. reus For this and its actus give lengthy explanation for its within- reason, properly applied district court sentence, States, guidelines Rita v. United categorical approach the modified and cor- 338, 356-57, U.S. rectly Martinez-Lopez pled found that (2007), the L.Ed.2d 203 record shows that cocaine, guilty selling qualifies to weighed carefully the district drug trafficking offense under the feder- argued again appeal. facts on It ac now subjects sentencing guidelines al Mar- knowledged prior offenses “did tinez-Lopez to a 16-level enhancement violence, any [that] involve his base offense level. Finally, 77- .,. finally trying Defendant is have sentence, properly month based on a calcu- family,” facts insufficient but found these months, guidelines range of lated In below-guidelines sentence. warrant a substantively reasonable. stead, the court noted the obvious need Martinez-Lopez’s re light deterrence AFFIRMED. same

cidivism concluded “the length time BERZON, [would be] last sufficient Judge, Circuit with whom for that.” Judge Judge Chief THOMAS and Circuit IV, join, except as REINHARDT to Part although Martinez-Lopez

Finally, relies dissenting part: concurring part, and Amezcua-Vasquez, United States v. 2009), case is F.3d 1050 Cir. I majori- as to the respectfully dissent easily distinguished. Amezcua-Vasquez, In ty’s component decision the actus reus was substan- we concluded that sentence Safety Health and of California Code tively re- when a defendant unreasonable 11352(a). I Respect concur enhancement based on a ceived a 16-level component, statute’s controlled substance years single conviction that occurred 20 with a caveat. Id, case, But in prior. 1058. this Martinez-Lopez lengthy criminal rec- has a I. has convictions ord and received As the Court has underscored reentry in including illegal 2003 and in of the repeatedly, the elements statute 2006; heroin possession sum, every must be the sole focus Amezcua-Vasquez simply a dif- categorical application this offender. modified ferent case from recidivist

1045 (cid:127) categorical comparison Mathis v. United approach. See “The that elements — States, U.S. —, 2243, 2248, 136 S.Ct. categorical approach requires is straight- (2016); 2251-52, 604 L.Ed.2d Des forward when a a single statute sets out — States, camps U.S. —, v. United 133 (or ‘indivisible’)set of to define a elements 2276, 2285, (2013). L.Ed.2d S.Ct. single Mathis, crime.” 136 S.Ct. at If 2248. emphasized has that “elements” The.Court an indivisible pro- statute in this is not a diaphanous context word generic scribes more conduct than the fed- thing thing only: but means one and one offense, eral a court impose federal cannot things prove “the to must ‘prosecution penalties based on that conviction. Id. at ” Mathis, conviction.’ sustain a at S.Ct. identifying 2248-49. But elements a (quoting Dictionary Law Black’s statutory crime is harder when statutes 2014)). crimé, ed. elements (sometimes have “a more complicated reiterated, the Court are “what the called'‘divisible’)' structure.” Id. at 2249. beyond to must find a reasonable doubt Statutes list various factors trial, or convict defendant” at “what alternative, beyond some which go necessarily the defendant admits when he generic crime, may qualify federal as divi- added) (cita pleads guilty.” (emphasis" Id. sible, they may but not. Disjunctively also omitted). tions may identify worded statutes several “ele- explainéd The Court has this focus alternative, thereby ments in the de- admitted,” “necessarily found or what crimes,” instead, fine multiple or may, required id. at three distinct various “enumerate[] factual' means statutory requirements, considerations: So, committing a single Id. element.” when protections, practical constitutional factors, a statute lists alternative sen- Descamps, realities. See at 2287. S.Ct. tencing figure court to needs out which First, sentencing pri- referring to .statutes was intended—an of alterna- enumeration “Congress indicate that “convictions” tive of various means. sentencing court to intended the look to fact .the defendant had been is critically impor That determination falling of crimes convicted within certain elements, tant. separate If the factors are categories, underlying not to the facts sentencing may employ then the prior (quoting Taylor Id. convictions.” categorical “modified look approach” and States, 495 U.S. at “a class documents” limited (1990)) (inter- S.Ct. L.Ed.2d record conviction “to determine what omitted). Second, quotation nal marks crime, elements, a defendant what penalty court increases the for a ap convicted of.” Id. This modified on any beyond crime fact the fact of based allowed, however, proach if is not the stat conviction, jeopardizes it the Sixth Amend committing ute lists “different methods of protections Apprendi ment described 2254 (quoting one offense.” Id. at Des Jersey, 490, 120 New 530 U.S. S.Ct. n.2). Rather, camps, 133 at S.Ct. L.Ed.2d 435 Id. at circumstance, must be statute the. Third, elements-only approach an largely categorical treated as indivisible and held “ from sentencing saves courts ‘daunt ly Descamps, overbroad. See at 133 S.Ct. ing’ inequities” difficulties and incident 2292-93. reviewing plea colloquies old or trial-tran Applying approach the modified without both of scripts, contain unclear carefully ensuring that a statute sets out bas erroneous references the factual elements, merely alternative (quoting Tay es for Id. conviction. alterna- 2143). lor, 601-02, means, “go beyond U.S. tive allows a court S.Ct. disjunctively so as of conviction to ex- worded statutes identifying the crime requisite for certain- manner which the defendant achieve “demand plore the (citation omitted), that offense.” 136 S.Ct. ty,” committed at 2257 application of the conviction, 2252. Premature mod- whether, to sustain a valid - thus approach serious Sixth “raise[s] ified particular factor must be found unani- Accordingly, concerns.” Id. Amendment jury or id. at mously by a admitted. See determining disjunctively a whether word- require us to These instructions 2256-57. or to statute refers alternative ed look, first, to authoritative state law subject is to the Court’s alternative means disjunc- concerning sources whether each certainty general more “demand or tively separate item is a element listed generic Shepard a identifying offense.” committing just possible a means States, 13, 21-22, 125 U.S. if inquiry is “a state same crime. Our over (2005); 1254, 161 see L.Ed.2d 205 S.Ct. definitively court decision answers Mathis, at 136 S.Ct. un- also 2257. When if ... question,” or “the statute on its face exists, err on certainty federal courts must (emphasis issue.” Id. at 2256 resolve[s] Mathis, generally caution. See side added). those authoritative sources Where at 136 S.Ct. 2257. provide fail to an- of state law definite underlying reasons practical The swer, to take a Mathis instructs courts approach help categorical illuminate “peek” limited the record of conviction applying special dangers improperly help to whether the statute determine in approach, particularly modified cases (citation omitted). divisible. See id. one, past this like where the opinion ignores the majority The here As guilty plea, from a not a trial. resulted only on repeated to focus Court’s direction Descamps, in the Court noted defendants proven beyond what must be admitted “often little incentive to contest ha[ve] to sustain a conviction. doubt reasonable charged facts that are not elements fully to id. And it fails See 2257. good offense—and have reason apply majority Mathis’s instructions. plea hearings, at 2289. At to.” S.Ct. divisibility to analysis its instead rests may conclude it is their defendants best of section component the actus reus “irk” prosecutors not to interest 11352(a) on a court that fails state decision superfluous “by squabbling court about provide ques- to the answer definitive allegations” pro- to those factual irrelevant tion act is a whether each enumerated So, ceedings. plea Id. records are because defining separate separate element crime among sentencing documents not reach under the statute. And it does ap- can examine once the modified use s Mathis’ third instruction. warranted, clearly Shepard, see proach 1254, over-eager U.S. at S.Ct. all applying steps After three outlined can deployment approach of the modified Mathis, I it is most conclude sentencing enhancements based on lead likely that actions are the enumerated “may downright information that committing the of- different means wrong,” “deprive can some defendants 11352(a), not al- stated fense negotiated plea of the benefits their elements, but there are ternative deals,” Descamps, 133 at 2289. S.Ct. contrary To decide some indications. categorical ap- the modified avoiding potential prob-

To aid in these case, applied in this proach may be concerns, the Court Mathis lems and have to make a fundamental le- regarding would provided detailed instructions unresolved, about an approach gal determination apply categorical how arising, independently repeatedly categorical was, the modified approach I important state law issue. therefore the majority opinion recognizes, not ad- suggest approach a better this dressed Patterson. Maj. at 1041-42. certify circumstance would be to to the That question, again, is what Martinez- question: Lopez necessarily guilty in his admitted support To a conviction under Health plea—i.e., prosecutor what the would have 11352(a)’s Safety pro- Code section required been to prove beyond a reason- scription “transporting], importing] able doubt at trial to secure a conviction state, selling], furnishing], this into ad- under Safety Health and Code section giving] ministering], away, or of- 11352(a). fering] transport, import into this As squarely Patterson does not address state, sell, furnish, administer, give or the pur issue before today, court the ma- away, to import into this attempting] cannot—and, jority indeed, not—say does transport,” state or certain referenced substances, that the definitively “state decision jury controlled must a find doubt, beyond Yet, question.” a reasonable or must a the at 2256. answer[ed] Id. admit, necessarily more, present the de- once for our purposes, to particular fendant committed one listed apply categorical approach the modified activity, e.g., “selling],” respect with to federal court say must be able to that a substance; the controlled or can a defen- dispositively state law decision answers the finds, be dant convicted where the question. majori- means-or-elements The admits, or the defendant that one or ty’s on improper reliance Patterson is thus more of applies, the enumerated acts under Mathis. id. specifying

without which? Applying appropriate an analy- Mathis

II. sis, 11352(a)’s divisibility the of section ac- requirement tus definitively reus cannot be regarding To reach its conclusion the by looking determined at other authorita- divisibility of the component actus reus tive sources state law either—most of 11352(a), majority section the relies almost point opposite in the direction from exclusively opinion People on the in lead by taking Patterson—or “peek” Patterson, Cal.Rptr. Cal.3d I 195,778 (1989).1 documents. consider first Patterson, in iso P.2d lation, shortcomings upon of the state law relied could the majority sug be read as majority to proceed and then re- gests, by extrapolation based use (1) But the view other authoritative Cal- precise the term “element.” issue sources (2) purposes must decide for ifornia applying law and the conviction record. noted, Although 1. Unless otherwise references to the concurrence Chief Patter- authored majority or the refer son Patterson the lead to sign explicitly Justice Lucas did not to the opinion signed only by authored and Justice reasoning point, opinion's lead on the second justices Kennard. Three concurred in the assume, willing present purposes, I to am noting agreement maintaining judgment, with agreement the concurrence’s with Jus- basic felony-murder by "refus[ing] rule to ac- reasoning premise Kennard’s tice (1) cept abrogate defendant’s invitations to its assertion that "other felonies involved (2) entirely, permit doctrine to consid- in the Id. I case” should not considered. of other felonies eration not involved note, however, the absence of a true dangerous- determining case the inherent majority opinion yet one more Patterson is ness of the own defendant’s offense.” certifying (Lucas, C.J., reason for the issue I enunciated at Cal.Rptr. P.2d outset, concurring part dissenting supra part). see Part I. (1964), Cal.App.2d

A. grounds by disapproved on other People provide a defin That does not Patterson Daniels, Cal.Rptr, Cal.3d question is evident our here answer to itive Hol 1235-36 P.2d First, in' opinion the lead three-reasons. history quin legislative examined engage the then- Patterson does 11352(a)’s language statutory of section that did ad existing law case Californi predecessor, section immediate pertinent question here—what dress the it held that proven beyond a must be reasonable facts to conviction under

doubt sustain prevent traffic narcot- enacted 11352(a). Second, appellate no California get- narcotic prevent ics and from on Patterson court has cited relied having ting into of those no the hands actually examining the before issue it. To that the sec- right possess end Third, rule’s felony-murder us. it effect tion makes a criminal offense test for “inherent “viewed-in-the-abstract” illegal change an of a nar- possession dissimilar, in ly felonies sev dangerous” cotic, regardless means used ways, from the elements- eral fundamental accomplish the transfer.... only categorical approach the Court has language the statute makes “Tayl only way to prescribed meet among the various means distinction n certainty.” for or's demand change crime is possession; the for omitted). (citation of a nar- whether transfer the same by selling,

cotic is furnish- accomplished ing, administering, giving away. or it majority in not dis The Patterson did added). Id. The Patterson (emphasis that be must cuss essential any majority left out mention similarly a conviction under Cali proven to sustain Pierre, Cal.App.2d v. People Safety Code section fornia Health (1959), Cal.Rptr. 223 which it was had held 11352(a) predecessors, or former sec its .,. respect procedure” no improper “[i]n Although there tions 11500 and 11501. document, charging jury instruc then-existing appellate several were tions, to verdict all have stated the issue, holdings to lead relevant selling, 11500 as fur offense section under any opinion in did Patterson not mention narcotic, nishing, giving away or a named Mosk, although of them. dis And Justice (selling, specification of the act fur as the Patterson, senting that issue did discuss nishing, away) necessary. not giving was concerning length, it at and the cases Id. at 226. engage opinion Patterson did lead presentation pre-Patter-

all with dissent's a review these Based regard. cases, son Justice Mosk concluded his partial dissent in Patterson that the actus majority example, For the Patterson 11352(a) component section lists reus Cornejo, People v. made no mention means, not elements. 262 Cal. alternative (1979), Cal.App.3d Rptr. P.2d at 566. Far from “ex properly con- “jury held that a had contention, pressly rejecting]” as the the defendant of a “violation victed” maintains, Maj. majority Op. here see Safety Health and Code section sale majority entirely heroin,” the Patterson though even the defendant had question specific silent which we gave away a sale but instead made require partic an 250. Nor did now answer—whether sample. small Id. at 11352(a) Holquin, variant in People Patterson 229 ular reus section discuss actus proven by or admitted conflicting must be sion by with California cases the defendant. pronouncing them bad law. Far from pointing to a definitive given by answer an majority steps in to

The offer voice mute, law, source of where authoritative state answering- Patterson the ma- question left jority unanswered Patterson. decides for itself what California law Pierre, Cornejo and Patterson overruled is on question. the critical That activist majority proclaims, those the extent approach identifying the essential ele- two cases conflict with Patterson’s holding, ments under a state is not statute sanc- the issue before us—an or any tioned Mathis other pertinent issue, again, directly involved in Pat- opinion. Maj. Op. terson. 1042-43. California courts agree statement, do not with that unless “the extent that conflict” [the cases] older majority The trifling. instance, overstep more

with Patterson For does than Haider, People Cal.App.4th 40 the of a Mathis analysis; quite bounds it (1995), Cal.Rptr.2d 369 the California probably comes wrong conclusion Cornejo of Appeal Court cited to affirm concerning'whether California re courts .- n one-count .for defendant’s gard Patterso deciding specific “selling giving away” cocaine viola- single ap issue Not we face. 11352(a). “Although tion [the pellate court has cited Patterson—let on. defendant] had two his dollars alone it dispositive—when concluded was arrested,” person Ap- considering particular actus peal there was held evidence “substantial 11352(a)’s reus from section enumerated gave away sold [Haider] cocaine.” proven.2 list charged must Id. at also 374. See cases cited Sec- infra Supreme. Court, ex tion II.A.2. ample, no mention of Patterson made post par As to the casés that -Patterson when it that decided reversal was. not re Holquin, Cornejo, allél and Pierre with quired was where evidence sufficient to question to the that is critical to support “selling a for or trans divisibility, the majority announces that in of porting cocaine” violation section “erroneous,” they as in conflict are 11352 one under the two “theories” Maj. Op. Patterson. 1042-43. majority, The presented short, by prosecution. People in See into Patterson ruling reads a that Guiton, 1116, is not its there and then reconciles v. Cal.Rptr.2d conclu- Cal.4th place," 2. Of the 95 California Court and scribed conduct in case takes a relat Patterson, citing Appeal ing requirements Courts of felony cases all a mens rea under but proper application so do to discuss the four child abuse statute that includes conduct,” degree felony-murder implied or prohibited second “branches ... each numbers), rev’d, exceptions by doctrines. None of the four malice marked bracketed . P,2d 1206, 835, concern Cal.Rptr.2d section statutes. similar Cal.4th S., (1999); 768, McGee, People re 7 Cal.4th Christian Cal. 2005 WL v. 33, 574, (1994) (Mosk, 859411, (Cal. 15, 2005) Rptr.2d App. 872 P.2d Apr. at *13 Ct. J., (same, concurring) (citing part (unpublished) general proposition as of a for Patterson “unnecessary Legislature power wider discussion about that “the broad has de crimes,” law”); complications amending by in California fine such homicide as substantive 137, offense); People Sargent, Cal.App.4th 70 Cal. law to remove an element of an In re 205, (1997) J., 31529056, R., (Cal. (Puglia, Rptr.2d at *4 dis Andrew WL Ct. Nov, 13, 2002) (same, senting) (referencing proposition App. (unpublished) Patterson apply elevating standards c.ulpability "different its offense of discussion factors depending felony), on the pro- imprisonment context in which the false here—i.e., ac- particular Pat whether a Nor was answer P.2d People Lynch, a proven beyond terson referenced reus must be reason- tus (Cal. App. Oct. dispositive. WL *2 Ct. doubt—Patterson is not able 2006) (unpublished), that “sell which held I also conclude that the Califor- And would ing furnishing merely are two cocaine Court, directly if nia asked about ways or methods which [the different face, might question well decide might par have committed defendant] actus reus factors section listed Similarly, ticular crime.”3 there is dis 11352(a) interchangeable means W.J., of Patterson In re cussion offense, committing single that no one so (Cal. App. Apr. *1 Ct. WL by a of them be found admit- need There, 2003) (unpublished). the Court of guilty plea. ted Appeal commitment or affirmed minor’s transportation” for “sale or of cocaine der 11352(a). in violation of base section enough It that California should rejected court also the minor’s contention relevant, not see Patterson as let courts do possession for sale of cocaine base controlling, precedent regarding the alone charged necessarily included charging we must and conviction issues 11352(a) offense, because the lan I note in that it is unsur- decide. addition guage charge tracked section prising that Patterson has not been relied 11352(a)’s that sec statutory definition and upon authoritatively stating “may tion still who be violated one issue, question on the here at law there possession of transports narcotics without deciding the are bases for issue before them.”4 Id. at *2. court in the issue in this Patterson and again, presumptuous it is Once differently. case federal court to deem these state court thing, addressing For one the Pat I decisions incorrect as state law. would issue—i.e., proper terson application that, adopt reading blithely instead felony murder doctrine—California declaring post-Patterson state deci- courts have used “means” and “elements” directly pertinent sions on the issue mis- defining interchangeably applying taken, comity reflects the state courts due approach to the “viewed-in-the-abstract” Doing questions. when faced with state law so, delineating “inherently dangerous” I crimes. post-Patter- would conclude Henderson, 86, indicate, minimum, that, People In v. 19 son Cal.3d 137 decisions 1, (1977), question requires Cal.Rptr. on the us to 560 P.2d 1180 over- Court 983, 768, may unpublished Cal.Rptr.3d Cal.App.4th 3. 185 ‘'[W]e consider state deci- 769 sions, though opinions (2015); Valencia, even such have People Cal.App.4th 226 v. precedential Emp'rs value.” Wausau v. 1, (2014); Ins. 326, People Cal.Rptr.3d 2 172 v. 1214, Co., Granite State 330 F.3d 1220 Ins. 1221, Fielder, Cal.App.4th Cal.Rptr.3d 114 8 case, 2003). n.8 Cir. In this where actual 247, (2004); Court, People Superior 250 v. 113 charging practices perti- and conviction 817, 74, (2003); Cal.App.4th Cal.Rptr.3d 7 76 nent, unpublished cases are indi- relevant as 239, Munoz, People Cal.App.4th 87 104 v. commonly accepted prac- state court cators 470, (2001); Cal.Rptr.2d People 471 v. Nava tices. 936, 519, rez, Cal.Rptr. Cal.App.3d 215 169 Martinez, (1985); People see also v. Additionally, many other state court deci- (Cal. 15, App. Ct. WL 999246 at *4 March note, any con- sions cern, other issues without 2017) People Keeney, (unpublished); v. "transportation convictions for or sale” (Cal. 21, App. *1-2 WL Ct. March of a of sec- controlled substance violation See, Keith, 11352(a). 2016) e.g., People (unpublished). tion v. Flood, grounds by People conviction, other v. additional charge ruled on murder. 470, 180, context, Cal.Rptr.2d In that 18 Cal.4th the “viewed-in-the-ab- (1998), instance, analysis stract” P.2d Supreme Court examined the four factors compelled is because there is a killing imprisonment to a elevate false could every might case where the rule poten- violence, fraud, menace, felony (namely, tially applied. be If in such circum- deceit) felony concluded that of “the stances a court were examine the as a whole in the fense viewed abstract is particular facts of the prior case to es- inherently dangerous life.” human tablishing underlying whether the felony Id., Cal.Rptr. at 1184. P.2d is inherently dangerous, court might the elements violence or “While menace applica- well be led conclude the rule imprisonment false is elevated despite ble any might unfairness which felony may danger involve to human to so an application: redound broad life,” held, Henderson “one who commits might existence of victim ap- the dead felony imprisonment by false means of pear inexorably to lead to the conclusion presents signifi no danger fraud deceit underlying felony exception- that the cantly greater than who mis one commits ally hazardous. (em imprisonment.” demeanor false Id. Patterson, Cal.Rptr. 778 P.2d at added). phasis cross-usage That indicates 554 (quoting People Burroughs, distinction between means and Cal.3d 678 P.2d elements is not at the forefront (1984)) (internal quotation 897-98 “inherently dangerous felony” But context. omitted), mark overruled on another deciding it what must proven is when ground by Blakeley, 23 Cal.4th People jury or a unanimous admitted the de 82, Cal.Rptr.2d 999 P.2d fendant, question here. Moreover, although principles un- Additionally, practical pit of the none derlying Mathis re- both and Patterson down, tracking falls associated with re limiting concern about certain collat- flect viewing, working from rec old court effects, very contexts eral different ords, jurisdiction, from often another implicate impacts not the same feared but present felony-murder themselves ones. of the im- Notably, different one Instead, similar to Pat context. cases grounds underpinning the portant Court’s terson, any consequences gener collateral categorical approach provided by ally proceeding. arise the same criminal as a reason Thus, danger if issues that arise deployed “viewed-in-the-abstract” test underlying felony ousness an is deter degree felony-mur- in California’s second erroneously generally mined can be cor Descamps, cases. See der appeal rected direct remand. 2287-89. Patterson, instance, the court held

First, that if “inherently dangerous felony” the the trial court re concluded cases, felony in issue Patterson and similar how- mand that the Patterson committed decided, implicate inherently dangerous, the was ever does Sixth indeed the “de right by jury. to trial Rath- fendant must be allowed to his Amendment’s withdraw context, er, felony-murder guilty plea charges violating in the courts to the of fact-specific Safety are about circum- Health and concerned Code section might “poison any the well” when with credit for interim time stances served.” a In judge legal question a considers as 778 P.2d at the context, contrast, in exposed grave present any a defendant is to a doubts whether “importation, transportation, in the have about what was decided the scribed administering, giving sale referring furnishing, case cannot be and earlier tested (or original of’ a controlled Id. at away the to the trial substance. issue back , n.2; 441-42 & see also appellate) Cal. Health & Safe court. 11379.5(a). ty why the So Code did significant Relatedly, perhaps most and Appeal decide that the relevant of ly, felony in context of the murder the inquiry “inherently dangerous the felo for “inherently dangerous felony” doctrine’s , ny” only or “selling involved the fur test requires no California statute rule PCP, nishing” “transportation”? of not its convictions, only op look to the courts at 442-43. Because the California See id. posed to the facts the offenses underlying could, did, to the of courts look facts Mathis, at 2252 committed. Cf. case, concluding “[although the the. sentencing statutes that refer (comparing encompasses conviction [of also] statute committed,” to “an ... and those offense importation, transportation, ... adminis thereby to re that refer convictions and tering, giving away ... of ... PCP quire sentencing ] courts “focus[ supported the evidence sale [in case] the a of ‘the elements the statute convic of- furnishing.” Id. at 442 As as well as n.2. (citations tion’”) (emendation original) in selling or fur implicated the evidence the omitted). Presumably is no because there offense, nishing of aspects the court “conviction,” once a limitation to a Califor not concern itself with broader did [he given .statute, nia that a court decides But, statutory crime of conviction. as— purposes separate states felonies again—the Supreme Court has once rule, may felony-murder it look repeatedly, in Des- recently stressed most presented or evidence factual theories Mathis, camps cate applying type determine variant case gorical approach, federal courts And, practice, at issue. felonious conduct making,” from “barred 11352(a) drug section statutes like Taylor, any court did fact-based deter issue, special application are at of the felo jury in prior mination about “what the ny-murder requires rules often doctrine accepted theory rhust as the trial have look to the facts a case determine at 2252 crime.” 136 S.Ct. whether not the was offense committed 2288). (quoting Descamps, 133 S.Ct. at dangerous” one of the ones “inherently * * * Charging enumerated the statute. docu judgment often ments and do abstracts sum, In majority made Patterson See, specify e.g., riot any particular act. existing attempt align holding its supra cases cited note 4. addressing directly law California case 11352(a) People Taylor, requisites charging, Cal.App.4th (1992), instruction, Cal.Rptr.2d example, purposes, i.e., pertinent Court of here. Appeal examined issue And no Cali- furnishing selling Pat- appellate PCP fornia court has ever cited 11352(a)’s dangerous any analysis terson in of section inherently stan- new under elements, or dards in Patterson. The those similar As outlined statutes. charged step, convicted of California courts have not taken had been with and sale, felony- furnishing, or trans- not hold that “seven counts we should Patterson’s PCP,” holding portation of murder must be to the violation extended statute 11352(a), that, entirely have pro- much like section distinct issue we before us.5 Notably, beyond emphasized 5. that the der rule “deserves extension its Patterson felony-mur- and "anachronistic” “disfavored”

1053 not survive because “dual convictions for B. the same offense based on legal alternate pro- other California case law Nor does n necessarily prohibited.” theories would question. to our definitive vide answer Vidana, People 632, 1 v. Cal.5th 206 Cal. promising, perhaps, People Most v. 556, 805, Rptr.3d (2016); 377 P.3d 817 see Guiton, 1116, 17 365, Cal.Rptr.2d 4 Cal.4th Roberts, also People 483, v. 40 Cal.2d 254 51-54; 46, Guiton, at In 847 P.2d the Cali (1953), P.2d 501 immediately discussed be fornia considered whether Court low. Guitón thus key question leaves the “selling conviction for or transporting herb unanswered. cocaine” in violation of section 11362 could be affirmed where the evidence was insuf Other in greater cases “sale,” to show a but was sufficient ficient tension majority’s with the conclusion. prove, beyond doubt, a reasonable notably, Most “transported” drug. had recently breathed life Peo new into highlighted In analysis, its Guiton Roberts, ple v. which possession, held that jury unanimity had been instructed that sale, transportation and of a controlled required as to the criminal “act” was charged single substance under a statute Id., Cal.Rptr.2d defendant committed.6 17 one constituted criminal offense when 366, at 847 P.2d 51. completed in the same course conduct. Guiton specify But did relevant Correa, 331, People v. Cal.4th 365, Cal.Rptr.2d “act” in that case. 17 546, 809, Cal.Rptr.3d P.3d Instead, P.2d at 51. Guitón discusses observed, As Correa defendant Rob transportation sale as and “alternative the erts on been convicted three counts' of had ories”—not elements—one of alternative 11352(a)’s “violating predecessor] [section unsupported by the evidence.7 ways on three different the same occa then held that the sufficient sion’by illegally transporting, selling, and “independently evidence valid possessing heroin.” Id. ground of Roberts held that cocaine” was transporting enough jury’s improperly to assume the were “charged verdict valid. tbé acts three Id. crimes,” adjudged sepárate and reversed the conviction as of the two may

Guitón indicate the actus reus three counts. P.2d at 505. Because the 11352(a) component defines dif- “acts but one constituted] juror unanimity. ferent acts requiring But offense person committed same the same that, may also Guitón’s discussion indicate time,” “charge[d] one if three counts but supported both “theories” had been charged support only crime” and could one had been conviction. Guitón convicted counts, Clemett, two the convictions I (quoting People different d. v. would Perez, required application.” (quoting People Cal.App.4th (internal quotation P.2d at (1993)) marks Cal.Rptr.2d (emphasis omitted). added), citations law, unanimity 6. Under California in “the considering theRarmlessness instruct appropriate struction is on a 'when conviction ing jury unsupported ground, on an Gui single could be count based two or more prosecutor tón mentions 'that the trial noted events,’ discrete criminal but not 'where multi they agree least had ple theories or form acts of a basis presented, Cal.Rptr.2d one of the theories guilty verdict on one discrete criminal ” not, 847 P.2d at 54 did n.2. Guiton Russo, People event.’ Cal.4th however, affirmatively subscribe view. to that (2001) Cal.Rptr.2d 25 P.3d 1054 (1929)) multiple charges on 142, (emphasis fenses and those based 280 P. 681 add-

Cal. ed). offense, fully single that state a Roberts Vidana, again confirming consistent with necessary be clarification was Correa’s vitality. its continued holding cause Roberts’s had been entwined years interpreting in the law for some case view, my In the California 654, § con Penal Code Court’s recent revitalization Roberts multiple punishm propriety cerns comes much closer than Patterson de- Correa, 546, Cal.Rptr.3d 142 ents.8 answering question we face finitively 813-14; at see also Neal v. Cali 278 P.3d can here. Because the state decisions 11, 607, 357 Cal.Rptr. 55 Cal.2d fornia, in than one pointing be viewed as more 839, n.1 As Correa ex P.2d in (although strongly much more direction multiple convic plained, Roberts “involved other), clear, all in one than that is improper with that were held to be tions view, my is that California courts have Correa, 654,” any reliance section out definitively that one of the determined (em 546, Cal.Rptr.3d 278 P.3d 11352(a) acts in section must enumerated reaffirming original), thereby phasis unanimously by jury or admit- be found relevant—indeed, argu holding as Roberts by the defendant. ted ably controlling—here. Vidana, recently, the California More C. that, although emphasized instructs that a “statute Mathis further multiple charges for the “same offense” may on its face resolve the [means/ele- convic generally permissible, “dual punish- by defining issue” different ments] for the same offense based alter tions statutory ments alternatives legal are not. 206 Cal. nate theories” things must be “identifyfing] which 556, Rptr.3d (emphasis P.3d at 816-17 (and elements) charged so are and which added). had held that the various Roberts (and means).” 136 need not be so are 11352(a)’s actions enumerated section 11352(a) pro- on its face 2256. Section “but predecessor together statute stated regarding vides clear answer divisi- offense,” committed one so “when component. gives It bility the actus reus time,” a person same the same charged no notice what must be more of the complaint that states two or proven and does sustain “charge[s] one actus reus alternatives but punishment omitted). define different levels (citation at 505 crime.” P.2d & types different acts. See Cal. Health distinguishing multiple convic between 11352(a). § charges Safety of- Code tions based on of different broadly interpreted 654 bars mul- section 954 had been 8. California Penal Code section convictions, permitting multiple tiple punishments single when a course typically applied 654 to bar various sec- courts conduct criminalized under analy multiple punishments separate coun- without tions of California's criminal codes. Its regarding multiple terpart regarding multiple charges sis convictions and con- victions, 954, con stand when an individual had been Penal Code section allows single charge separate for a counts victed on counts act state id., Cal.Rptr.3d together course of conduct. See offenses connected "different 808, commission,” 556, (citing People 377 P.3d at "different offenses their crimes,” Gonzalez, Cal.Rptr.3d state- Cal.4th same class of or "different (2014); offense,” People Ortega, ments of the same and to convict P.3d Cal.Rptr.2d any 968 P.2d 48 number of the offenses Cal.4th defendant of (1998); Pearson, Vidana, charged. Cal.Rptr.3d People v. 42 Cal.3d 816; (1986)). 721 P.2d 595 P.3d at Cal. Pen. Code 954. Because transport, import into the D. State Califor- nia, sell, furnish, administer, give and where, here, Finally, as there is no de away, attempt and to import into the State from finitive answer authoritative sources of California transport and a controlled law, reviewing state Mathis instructs substance.” judgment The abstract of not- “peek” courts to the record Martinez-Lopez ed that to a as an indication of sentenced whether the statute lists four-year term of separate imprisonment elements or merely separate (citation omitted). means. 136 BASE,” S.Ct. COCAINE “SALE/TRANS. As explained, Mathis if the indictment to an additional three-year term for an jury disjunctive instructions both refer to a enhancement prior based on a offense. list of vague factors use a “umbrella Martinez-Lopez’s plea colloquy, prose- the “premises”), (e.g., term” there is “as clear cutor stated the factual basis for plea the any an indication as that each alternative “on or about December you only possible a means of commission.”9 did sell grams cocaine base—.42 of cocaine hand, Id. at 2257. On the other if the Martinez-Lopez base.” affirmed that factu- jury indictment and instructions “refer- al basis.10 one alternative term to enc[e] the exclu Although plea the colloquy transcript others,” sion of all that “could indicate” specifies the factual basis conviction as part the item is list of separate “selling,” the conviction documents not. do Notably, elements. Id. highlights the Court Under categorical approach, the key that “such record materials will not in is, again, issue once every speak plainly, case if they do crime of conviction. An admission to a not, sentencing judge not will be able to specific factual basis for the conviction satisfy ‘Taylor' s for certainty’ demand says scope little about the of the statutory determining defendant conviction, offense of as the of- generic was convicted offense.” Id. ten to the admits means which com- he (citation omitted). mitted a broad element of the offense. See documents, Turning then to the record I I, supra pp. (discussing why Part 24-24 they strongly conclude that indicate that independent- factual admissions cannot be the actus reus factors are means of com- ly controlling under categorical ap- 11352(a) offense, mitting a section not sep- proach if the offense has broad element Martinez-Lopez’s arate elements. felony that can ways). be various A committed complaint charged him with “the crime of sentencing court cannot tell whether the TO SALE/TRANSPORTATION/OFFER premised admitted factual basis is on an SUBSTANCE, CONTROLLED SELL specific of a admission element of the violation of HEALTH AND SAFETY crime—sale—or, likely, simply pro- more 11352(a).” CODE SECTION The com- description a more vides detailed plaint allege on to went that Martinez- means Lopez conduct which the broader transport, import “did unlawfully California, charged sell, furnish, into the crime in the State and reflected ab- administer, give away, judgment and offer to stract was committed. trial, guilty plea plea hearing, judge

9. When initially is entered in lieu of At the stat- instructions, there are correlative charged so a count—erroneously—as ed "sales plea agreement transcript plea cocaine;” collo involving prosecutor similarly quy may be referenced. United States v. Mar charge stated “sale of a controlled cia-Acosta, 780 F.3d Cir. substance, in this case cocaine.” 2015) (citing Shepard, 544 U.S. at 1254). Certifying means-or-elements in this case. record this case at the “peek” ordinarily questions should Mathis to state courts me where other thus leaves ques- resolving necessary, the reasons indicated clues means/element Here, strong likelihood the circumstances are tion did—with Mathis. the described in section various acts for ordinary, three related reasons. 11352(a) interchangeable of are means First, drug convictions these committing the offense. in exceedingly arise federal frequently categorical approach. applying cases the HI. Second, question, although excep of our , cases, that, in most indicated Mathis (and in importance tional federal criminal readily be sentencing should courts federal not, cases, the of immigration) is at end today question to we face able the answer Instead, day, question the a federal law. looking to only authoritative sources eagerness to con despite majority’s the or, at peeking if the necessary, law state otherwise, ques clude faced we at 2256-57. record of 136 S.Ct. conviction. state law. sec tions Whether unresolved examinations, it Indeterminacy both after 11352(a)’s requirement tion actus reus is than posited, exception would be “more the purely divisible Mathis involves under the rule.” Id. at 2257. questions charging jury law and state As I the of cases culmi- line understand “Through practices. See 136 S.Ct. 2256. require- nating in the certainty ,.. questions of unsettled certification specific in a Where ment cuts direction: state for law authoritative answers a indeterminacy after the modes is all there court, highest may court State’s federal a. ex- inquiry prescribed in Mathis are ‘time, energy, and resources and save hausted, must a treat federal judicial hel[p] cooperative build a federal to’ state as indivisible with statute ” English ism.’ Arizonans for Official element, generic so contested Arizona, 43, 77, S.Ct. 1055, 520 U.S. categorical ap- apply not the modified (1997) (quoting 137 L.Ed.2d Lehman proach. (explaining id. where that Schein, U.S. Brothers v. prescribed “speak plainly, sources do not (1974)). Here, L.Ed.2d S.Ct. to judge sentencing ... be will able particular, approach the “more cautious certainty" satisfy ‘Taylors demand order,” id., because, certification [of is] determining told, “truth be find state decisions [I] generic (quot- of a convicted offense” contradictory and question] confus [the 21, 125 S.Ct. ing Shepard, 544 U.S. ing,” Descamps, 1254)). that we could precept, Applying because, I Third, here for reasons way that conclude we decide whichever given, there that have certainty questions, there undecided state law will 11352(a) actus reus enumeration in section practical problems for state be substantial means, than we states rather As under section courts. such convictions aspect treat of the statute as should 11352(a) drug often similar so statutes would then divisible. We conclude California, ques- answer occur categorical apply cannot the modified in the stat- factor listed tion whether each approach. component proven be actus reus must ute’s specifically instance, however, to a admitted I particular In this consequence guilty plea great route Califor- best ask is. our believe major- system. accept If we provide Court to definitive state court nia defendants, answer, precise presented ity’s prosecutors, then question to the answer in California would be courts left with Safety Health 11352 for single Code saying state court cases some that defen- acts or courses of conduct involving differ charged dants can and convicted But, ent controlled substances. as the ma for all one offense the enumerated concludes, jority in addressing whether conduct, and an en banc panel this court multiple punishments. upheld, should be saying that those cases are erroneous and appear courts to have necessarily as that each enumerated act is separate a' sumed convictions were separate of a element offense. We would proper under California law. I also observe then an influx appeals invite habeas the charging and conviction docu relating, example, duplicitous ments appear routinely charges, despite fail- convictions sustained specify particular drug, the opposite jury unanimity, ambigu- ure ensure practice the with to the enumerat guilty pleas. if Alternatively, ous California See, e.g., ed acts. the cases supra cited majority’s courts did follow the conclusion note 4. here, change the state will have to wide- Martin, People 822, v. 169 Cal.App.4th spread charging practices. trial Cal.Rptr.3d 858, (2008), 86 861 does my If followed Suggestion we instead support contrary Martin, conclusion. In majority’s that conclusion the the at the charged pbssession was with highly questionable least very and that substance, of a base, -controlled in cocaine 11352(a) section must therefore be treated 11350(a). of violation jury section The re- as purposes, indivisible federal confu- jury ceived written that speci- instructions oft-litigated sion could also in this follow “cocaine,” base,” fied of instead “cocaine as As conclusion area. our that would be the controlled substance issue. The oral charge California law as to the unit instructions, hand, on the other correctly unclear, might conviction is encour- noted “cocaine In holding base.” any that age widespread challenges to California harmless, instructional error was specific act com- convictions which Court Appeal highlighted that “[t]he unanimously is not mitted found admit- jury correctly was instructed the ele- ted. of possession ments the crime of a con- certify I would therefore to the Califor- trolled substance.” Supreme nia question Court the enunciat- do, however, I regard have one caution opinion. ed the outset this See Cal. R. ing, majority’s Ct. 8.548. controlled substance holding: changes There have in relat been IV. legal principles California ed recent concur, caveat, years I majority’s that have as with undermined the decision on the sumptions spe controlled substances re- Adams as to quirement. cific substance is controlled an element proven must beyond that be a reasonable The majority cases- cited doubt to admitted the defen 11352(a)—In aspect of section re many years, For including dant. when 629, Adams, 122 Cal.Rptr. 14 Cal.3d decided, Adams was un California courts (1975), People Chung, v. P.2d Penal Code derstood section to be Cal.App.4th Cal.Rptr.3d broadly permissive multiple (2015), Monarrez, convictions People 66 Cal. multiple charges App.4th. 710, (1998)— proper, wherever Cal.Rptr.2d were including expressly validity charges did not address stated “different multiple convictions of the same under statements offense.” See Pear 596; BYBEE, concurring in

son, Judge, Circuit P.2d dissenting in part part, but frustrated Tideman, 574, 21 Cal. People v. 57 Cal.2d endeavor: whole P.2d On Rptr. assumption understanding, promised separate there could be con

Adams inquiry—elements or threshold “[the] par for each victions under section 11352 case, easy in this as it means?—is will appropri ticular controlled substance States, many others.” Mathis v. United — ate. 2243, 2256, —, U.S. (2016); Descamps also L.Ed.2d 604 see Court has re — States, —, 133 S.Ct. United U.S. however, clarified, cently that Penal Code (2013) n.2, 186 L.Ed.2d 438 954 is not as broad as believed at (“[I]f point real distin the dissent’s is that time of In particular, Adams. guishing ‘alternative elements’ between charges convictions cannot stand when difficult, we can and ‘alternative means’ simply state statements “different to worry.”). no real-world reason Six see offense,” opposed same “different twenty years I “In years ago wrote: offenses the same class crimes.” Vi States, 495 Taylor U.S. [v. since dana, 816; Cal.Rptr.3d 377 P.3d at 575, 110 S.Ct. L.Ed.2d § Califor see also Cal. Pen. Code 954. No (1990)], struggled we have understand yet nia court has addressed whether Vida- Supreme of the Court’s the contours changes analy na convictions Indeed, decade, past over the framework. of involving drugs sis cases various no other of has de perhaps area the law types. Until California courts address that of manded more our resources.” United issue, I question see no reason to Oca, 655 Aguila-Montes de F.3d States weight authority, as well California as 2011) (en banc) (citing Cir. practice, common indicate that a prior en banc of our court nine decisions generally controlled specific substance categorical/modified addressing the cate usually must be named—and is—in both framework), gorical by Des overruled charge the criminal and the instruc camps, 133 S.Ct. tions. easy, is not The case before us and does Supreme for the Court’s bode well

I majority’s therefore concur in the deci- “indeterminacy should conclusion divisibility sion as to of the controlled exception the rule.” prove more the than If, Vidana, component. substance after view, my at 2257. In S.Ct. courts the treatment of California revise Safety Health Code California multiple charges and convictions based on 11352(a) § functions as a form a new activity involving multiple one criminal regards to the actus “wobbler” statute substances, might of controlled types we reus: sometimes the acts listed are treated to revisit this issue. have elements, Judge as as outlined in Tail- n n n n n opinion, majority man’s and other times means, they explained are treated as as majori- I dissent from the respectfully I Judge partial Berzon’s dissent. cannot and, respect to Part II.B. ty’s decision with conclusively whether identifies say to the extent it relies the conclusions surpris- is not elements means—which II.B, Part II.C. Part ing, since the “elements-means” distinction by the Court. largely I concur in II.A. of the decision. a recent creation Part States, (citation Having satisfy (2016) failed to the “demand 136 S.Ct. omitted). certainty” required this conclude elements, Mathis, statute identifies By certifying the controlled substances (quoting Shepard S.Ct. question now, we could enable federal

States, U.S. courts to properly applica- determine the (2005)), L.Ed.2d sentence enhance- bility of drug California’s statutes immi- ment cannot stand. gration sentencing guidelines cases. respectfully I from dissent the actus By failing certify one ques- two portion majority opinion. reus tions, ensure, Judge instead suggests, Berzon that this court will soon REINHARDT, Judge, Circuit issue, again have to revisit the after the Judge joins, whom Chief THOMAS full effects are Vidana examined dissenting: again California courts. Rather than un- I join Judge opinion except Berzon’s as dergo process torturous which we Instead, Part I certify IV. would engaged, again now risk announc- question Court the ing by a 6-5 vote that California’s law divisibility of the controlled substance provides divisibility a clear answer to the 11352(a) provision of Section aswell question, certify we should now to the divisibility provision the actus reus questions: Court both words, that same subsection. In other whether controlled substances are ele- specific I ask whether acts would 11352(a) along ments means in Section means, are elements or but I would also question with the whether actus rei are prohibited ask sub- controlled means, thereby elements or obtain an stances are elements or means. that gives certainty required answer us the divisibility of princi Where the the two by Mathis. pal aspects of a subsection of a statute are Vidana, Even without the answer the unclear—here, proscribed the acts and the question whether the substances controlled proscribed substances—it seems evident to in or listed Section 11352 are elements they together me should be certified appel- means is far from clear. California’s supreme clarify to the state court to both late have not In re courts read Adams as divisibility issues. The of both acts and deciding the of divisibility. issue favor Judge is unclear in substances this case. Instead, appeal the courts have re- explains convincingly why Berzon the acts peatedly upheld convictions where the provision is unclear but hesitates re with identity of sup- the controlled substance spect proscribed ques to the substances porting the conviction was incorrect un- respect question, tion. With the latter See, proven. e.g., People Nugent, she notes that the California 2010) (Cal. App. WL at *3 Ct. in People Court’s recent decision v. Vida (upholding “appellant conviction where had na, 206 Cal.Rptr.3d Cal.5th heroin”); either offered sell cocaine (2016), may P.3d 805 alter or the overrule Bonham, 400366, at *9 People v. 2006 WL analysis by convictions advanced (Cal. 2006) App. (upholding Ct. conviction majority respect the to In re with Adams. “methamphet- where trial court wrote recently That California’s law have amphetamine” into amine model is to pre been modified sufficient itself concluding this court from instructions the controlled substance at vent the Orozco, issue); People is the “certainty” statute divisible with WL (Cal. 2003) by App. (up- demanded Mathis. Mathis v. United at *3 Ct. Brannon, Melody De- although Federal Public for holding heroin Kansas, cocaine); Pinal, fender, Topeka, Kan- People v. District charge the 2002) sas, (Cal. Defendanh-Appellant. for App. *1 Ct. 2002 WL possession for (upholding conviction Capwell, Carrie N. Assistant cocaine). heroin mixture Grissom, (Barry Unit- Attorney, R. States assume, majori- brief), Attorney, as the bare her on We with the could all ed States does, ap- Kansas, apparently that the courts ty Plaintiff-Appel- City, Kansas Cali- peal cases because the erred these lee. definitively held Supreme Court

fornia TYMKOVICH, Judge, Chief Before ago, forty years controlled over MURPHY, Circuit Judges. BRISCOE and rather were than substances However, assumption an does such means. ORDER comity “the due state demonstrate ques- faced with state law courts when This is the court on the matter before Rather, appropriate tions.” conclusion Rehearing Panel and Rehear- Petition that, like the context Patterson ing En Defendant-Appellant, Banc filed question, In reus re Adams did actus Godinez-Perez. Emanuel question of element definitively answer App. to Fed. R. P. Pursuant regard to the controlled

versus means panel rehearing'is granted in petition for question. this Given uncertain- substances part to extent the modifications in ty, uncertainty recently cre- additional opinion. The court’s attached revised dispositive. the inter- ated Vidana opinion is withdrawn October comity judicial I economy, est would replaced by opinion. revised attached certify questions regarding both Section 11352(a) petition rehearing to the en Court. banc-and opinion revised were trans- attached majority I therefore dissent from the judges to all of the of the court mitted who entirety. opinion in its regular active service. As no mem- regular panel judge of the ber requested active service on polled, petition for rehear- court be ing App. R. P. America, en banc is denied. Fed. UNITED STATES 35(f). Plaintiff-Appellee, BRISCOE, Judge. Circuit GODINEZ-PEREZ,

Emanuel (Go- Emanuel Godinez-Perez Defendant Defendant-Appellant. dinez) pleaded guilty three criminal No. 15-3159 conspira- of his role in arising counts out possess with intent to distribute and cy Appeals, States Court grams more than 500 distribute meth- Tenth Circuit. amphetamine. The district sentenced 22, 2016 December Filed imprisonment Godinez term

months, by two-year term to be followed ap- supervised, release. Godinez now Exercising jurisdiction peals his sentence. pursuant agree to 28 U.S.C.

Case Details

Case Name: United States v. Melvin Martinez-Lopez

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 28, 2017

Citation: 864 F.3d 1034

Docket Number: 14-50014

Court Abbreviation: 9th Cir.