In United States v. Soto, --- F.4th ---, No. 23-4072 (9th Cir. 2026), the Court certified to the Supreme Court of California the following question:
When a defendant is charged with possession of a listed controlled substance under California Health & Safety Code § 11378, must the state prove, and must the jury unanimously agree, that the defendant possessed the actual listed controlled substance, and not an analog of that substance as defined under California Health & Safety Code § 11401? Or may the jury convict if it finds the state has proven the defendant possessed either the actual controlled substance or an analog of that substance, without unanimous agreement as to which?
"The issue in this case is whether defendants Anthony Soto ('Soto') and Stephen Reid ('Reid'; collectively, 'Defendants') are subject to the career-offender sentencing enhancement, U.S.S.G. § 4B1.1, because of their prior convictions under California Health & Safety Code § 11378. That issue turns on a question of California law."
"If the state must prove that a defendant possessed the actual listed controlled substance charged, and not an analog of that substance, then Defendants would be subject to the career-offender enhancement due to their prior § 11378 convictions. But if a controlled substance analog is an alternative means of proving that a defendant possessed the listed controlled substance charged, then Defendants would not be subject to the career-offender enhancement."
The order further explains in detail why the question is important and determinative.
