Friday, July 28, 2017

7/31/17: En banc decision on Cal drug statutes

The long awaited decision in United States v. Martinez-Lopez, --- F.3d ---, No. 14-50014 (9th Cir. 2017) (en banc), is here.  And it is not good news for criminal defendants.

The conclusion is that the Cal drug statutes -- such as HS 11352 -- are divisible with regard to both their controlled substance requirement and actus reus requirement.

This means that, for purposes of determining whether a prior Cal. conviction is a federal sentencing-enhancement predicate, courts can use the modified categorical approach -- i.e., consult the conviction documents to determine the elements to which the defendant pleaded guilty.  So, for example, if the defendant admitted to selling cocaine, the prior conviction will qualify as a drug trafficking offense.

[Had the decision on divisibility come out the other way -- that the Cal. drug statutes were not divisible -- these prior drug convictions would almost never qualify as federal predicates]

There are persuasive dissents.  And Judge Bybee notes he is "concurring in part and dissenting in part, but frustrated with the whole endeavor."