United States v. Morales -Perez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 05-10115

v.

 D.C. No.

CR-04-00094-JCM

RODRIGO ALEJANDRO MORALES-

PEREZ, OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted

November 18, 2005—San Francisco, California

Filed February 22, 2006

Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Goodwin;

Dissent by Judge Tallman

1931

UNITED STATES v. MORALES-PEREZ 1933

COUNSEL

Rene L. Valladares, Assistant Federal Public Defender, Las

Vegas, Nevada, for the defendant-appellant.

Robert A. Bork, Assistant U.S. Attorney, Las Vegas, Nevada,

for the plaintiff-appellee.

1934 UNITED STATES v. MORALES-PEREZ

OPINION

GOODWIN, Circuit Judge:

Rodrigo Alejandro Morales-Perez appeals his 70-month

sentence for unlawful reentry of a deported alien. Morales-

Perez contends that the district court erred in finding that his

prior conviction for possession or purchase of cocaine base

for purposes of sale is categorically a drug trafficking offense

warranting a sixteen level enhancement under United States

Sentencing Guideline (U.S.S.G.) § 2L1.2(b)(1)(A). We hold

that Morales-Perez’s conviction for possession or purchase of

cocaine base for purposes of sale, in violation of California

Health & Safety Code section 11351.5, is not categorically a

drug trafficking offense within the meaning of U.S.S.G

§ 2L1.2(b)(1)(A). We therefore vacate the district court’s sen-

tence and remand for the district court to conduct a modified

categorical analysis at resentencing.

I.

Rodrigo Alejandro Morales-Perez pled guilty to one count

of unlawful reentry of a deported alien in violation of 8

U.S.C. § 1326. On November 23, 2004, Morales-Perez filed

a written objection to the presentence report’s (PSR) calcula-

tion of his offense level which increased the base level by six-

teen for a prior crime of violence conviction. He also argued

that the court should not have considered his prior convictions

at all. The government’s response defended the PSR’s calcu-

lations, and in the alternative, offered Morales-Perez’s prior

conviction under California Health and Safety Code section

11351.5 for possession for sale of cocaine base as a reason to

increase the base offense level by sixteen levels. Morales-

Perez’s supplemental sentencing memorandum argued that

the district court should apply a categorical approach and then

a modified categorical approach to analyze his prior drug con-

viction.

UNITED STATES v. MORALES-PEREZ 1935

At the December 6, 2004, sentencing hearing, the govern-

ment argued that section “11351.5 does require at least con-

structive [possession] that’s consistent with federal law and

the sixteen level [increase] applies.” The district court held

that the Guidelines’ definition of drug trafficking includes dis-

tribution and stated that “distribution would include posses-

sion, constructive possession, whether he could — under

California statute if he purchased it for sale, that would be

included.” The sixteen level enhancement was applied with-

out a modified categorical analysis because the district court

held that “the federal definition of drug trafficking offense is

broad enough to include the crime for which he was convicted

here no matter how you read the state statute.” Morales-Perez

timely appealed his sentence.

II.

United States Sentencing Guideline § 2L1.2(a) provides the

base offense level for convictions under 18 U.S.C. § 1326. If

a defendant previously was deported after “a conviction for a

felony that is (i) a drug trafficking offense for which the sen-

tence imposed exceeded 13 months,” the defendant’s offense

level should be increased by sixteen levels. U.S.S.G.

§ 2L1.2(b)(1)(a). For the purposes of this increase, a drug

trafficking offense is “an offense under federal, state, or local

law that prohibits the manufacture, import, export, distribu-

tion, or dispensing of 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.” U.S.S.G. § 2L1.2 cmt.

n.1(B)(iv).

The district court held that Morales-Perez’s prior convic-

tion under California Health and Safety Code section 11351.5

was a drug trafficking offense under § 2L1.2(b)(1)(a). That

statute is entitled “Possession of cocaine base for sale; punish-

ment,” and provides:

1936 UNITED STATES v. MORALES-PEREZ

Except as otherwise provided in this division, every

person who possesses for sale or purchases for pur-

poses of sale cocaine base which is specified in para-

graph (1) of subsection (f) of Section 11054, shall be

punished by imprisonment in the state prison for a

period of three, four, or five years.

CAL. HEALTH & SAFETY CODE § 11351.5 (West 2005).

To determine whether a prior conviction qualifies to

enhance a defendant’s sentence under the Guidelines, this

court applies the Taylor categorical approach and then the

modified categorical approach. United States v. Vidal, 426

F.3d 1011 (9th Cir. 2005) (holding that Blakely and Booker

did not affect these approaches).

A. The Taylor Categorical Approach

[1] The categorical approach to determining whether a prior

conviction should be used to enhance a sentence “generally

requires the trial court to look only to the fact of conviction

and the statutory definition of the prior offense.” Taylor v.

United States, 495 U.S. 575, 602 (1990); see also United

States v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004)

(applying Taylor’s categorical approach to § 2L1.2(b)(1)

(A)(i)’s drug trafficking enhancement). Here, the state statute

in question criminalizes possession or purchase of cocaine

base for sale.

1. Possess for Sale or Purchase for Sale are Independent

Means of Violating Section 11351.5

Morales-Perez argues that section 11351.5 does not fall

completely within the Guidelines’ definition of drug traffick-

ing because purchase is not manufacture, import, export, dis-

tribution, dispensing or possession. The government contends

that in order to be convicted at all under section 11351.5, one

must possess a controlled substance. We have found no pub-

UNITED STATES v. MORALES-PEREZ 1937

lished California opinion directly discussing this issue. The

statute’s plain meaning treats purchase and possession for sale

as two independent means of violating the statute.

[2] Section 11351.5 punishes a person for possession of

cocaine base for sale, or for purchase of cocaine base for sale.

The statute does not require possession and purchase, and

does not indicate that the disjunctive pairing is anything other

than a list of alternative means of falling within the statute’s

purview.

[3] To read the word “purchase” as one form of possession

would divest the purchase alternative of its independent

meaning. “It is, however, a cardinal principle of statutory con-

struction that we must give effect, if possible, to every clause

and word of a statute.” Williams v. Taylor, 529 U.S. 362, 404

(2000) (internal quotation marks omitted). The purchase lan-

guage can reach those who buy drugs without ever possessing

them. See, e.g., Armstrong v. People, 265 Cal. Rptr. 877 (Cal.

Ct. App. 1990) (controlled purchase does not require actual or

constructive possession). In addition, the fact that the statute’s

title mentions possession and not purchase “cannot limit the

plain meaning of the text.” Pa. Dep’t. of Corrs. v. Yeskey, 524

U.S. 206, 212 (1998) (citation omitted). It is the plain mean-

ing of the statute that possession and purchase for sale are two

independent means of violating the law.

2. Purchase for Sale is Not Drug Trafficking Under the

Guidelines

[4] For the purposes of § 2L1.2(b)(1)(a), a drug trafficking

offense involves “the manufacture, import, export, distribu-

tion, or dispensing of 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.” U.S.S.G. § 2L1.2 cmt.

n.1(B)(iv). Possession for sale directly falls within this defini-

tion since sale is one means of distribution. However, pur-

1938 UNITED STATES v. MORALES-PEREZ

chase is not a form of possession or of any other type of drug

trafficking offense under § 2L1.2(b)(1)(a). Therefore, a Cali-

fornia Health & Safety Code section 11351.5 purchase for

sale conviction falls outside the Guidelines’ definition of drug

trafficking.

B. The Modified Categorical Approach

[5] Since section 11351.5 criminalizes activity which does

not constitute drug trafficking under the Guidelines, “the con-

viction may not be used for sentence enhancement unless the

record includes ‘documentation or judicially noticeable facts

that clearly establish that the conviction is a predicate convic-

tion for enhancement purposes.’ ” United States v. Corona-

Sanchez, 291 F.3d 1201, 1203 (9th Cir. 2002) (en banc) (quot-

ing United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th

Cir. 2001) (en banc)). This is called the modified categorical

approach.

[6] A presentence report which does not indicate the source

of its factual information is not a judicially noticeable fact for

this analysis. Corona-Sanchez, 291 F.3d at 1212. The district

court looked only to the PSR to determine Morales-Perez’s

prior convictions, and the PSR did not indicate the source of

this information. Although the government referenced facts

not included in the PSR at the sentencing hearing, the record

does not reveal the source of any additional information

regarding Morales-Perez’s prior convictions. Therefore, the

sentence must be vacated, and the case remanded. On remand,

the “government will have the opportunity at re-sentencing to

offer additional evidence to support the enhancement.”

Navidad-Marcos, 367 F.3d at 909.

III.

Morales-Perez also argues that the district court violated his

Sixth Amendment rights by considering his prior conviction

at all in determining his sentence because he did not admit the

UNITED STATES v. MORALES-PEREZ 1939

prior conviction when he pled guilty. A prior drug conviction

“need not be proven beyond a reasonable doubt or admitted

by the defendant to satisfy the Sixth Amendment.” United

States v. Esparza-Gonzalez, 422 F.3d 897, 907 (9th Cir.

2005). This argument therefore fails.

Morales-Perez finally seeks a limited remand pursuant to

United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en

banc). Because we vacate his sentence and remand for resen-

tencing pursuant to the modified categorical approach, we

need not consider Ameline. However, the district court will

resentence Morales-Perez under the current advisory system.

The sentence is VACATED, and the case is REMANDED

for resentencing.

TALLMAN, Circuit Judge, dissenting:

We must presume that when the United States Sentencing

Commission wrote the enhancement guideline for prior drug

trafficking offenses it had in mind Title 21 of the United

States Code. Section 841(a)(1) declares that it “shall be

unlawful for any person knowingly or intentionally . . . to

manufacture, distribute, or dispense, or possess with intent to

. . . distribute . . . a controlled substance . . . .” 21 U.S.C.

§ 841(a)(1) (emphasis added). That is the heart of federal drug

trafficking offenses and the California statutes are no differ-

ent. The intent to sell element is the key to the proper analysis

which the majority overlooks.

California Health and Safety Code § 11351.5 provides that

“every person who possesses for sale or purchases for pur-

poses of sale cocaine base . . . shall be punished by imprison-

ment in the state prison . . . .” (Emphasis added). Like its

federal counterpart, California’s statute establishes multiple

means by which a drug trafficking crime may be committed.

1940 UNITED STATES v. MORALES-PEREZ

Nevertheless, just because California provides different ways

to commit the same offense does not render the statute overly

broad under the Supreme Court’s categorical approach for

determining whether a prior drug trafficking offense can be

used to enhance a recidivist’s sentence. See Taylor v. United

States, 495 U.S. 575 (1990). Because § 11351.5 meets the

Taylor test, we need go no further.

Whether Morales-Perez was in actual possession of the

cocaine base or had simply purchased the cocaine base with

the intent to distribute is not significant. One simple fact

remains, had Morales-Perez been prosecuted in federal court

for the same conduct which violated California law, he would

have been prosecuted for possession with intent to distribute

under 21 U.S.C. § 841(a)(1), see United States v. Ivy, 973

F.2d 1184, 1188 (5th Cir. 1992) (finding actual possession

when the defendant “handed over $20,000 in cash for the

cocaine” and “took the package and began to open it before

his arrest”), abrogated on other grounds by Bailey v. United

States, 516 U.S. 137 (1995), or at least attempted possession

with intent to distribute under 21 U.S.C. §§ 841(a)(1) and

846, see United States v. Rosalez-Cortez, 19 F.3d 1210, 1217

(7th Cir. 1994) (upholding conviction for attempted posses-

sion with intent to distribute when defendant furthered the

purchase by helping to hide the money, and the defendant

accompanied the others to deliver the money and complete

the purchase of the cocaine).1

For instance, in United States v. Hernandez, No. 04-16663,

2005 WL 3525613 (11th Cir. Dec. 27, 2005), the Eleventh

Circuit upheld a conviction for possession with intent to dis-

tribute two kilograms of cocaine hydrochloride under 21

1

The attempted possession with intent to sell is a drug trafficking

offense as defined by the United States Sentencing Guidelines

(“U.S.S.G.”). See U.S.S.G. § 2L1.2 cmt. n.5 (“[Prior drug trafficking

offenses] include the offense of aiding and abetting, conspiring, and

attempting, to commit such offenses.”).

UNITED STATES v. MORALES-PEREZ 1941

U.S.C. §§ 841, 846, when the only evidence connecting the

defendant to the crime was the fact that he tendered the

money to purchase the drugs and then subsequently requested

that his portion of the drugs be brought to him. Id. at *1, *4.

While a co-conspirator acknowledged that Hernandez was a

purchaser, there was no evidence that Hernandez obtained

actual possession of the drugs. However, what the evidence

did prove was a completed purchase; by purchasing the drugs

Hernandez obtained the right to control the drugs. Because

Hernandez aided and abetted the crime of possession of

cocaine with intent to distribute, he could be punished as a

principle, see 18 U.S.C. § 2; Hernandez, 2005 WL 3525613,

at *4, and the Eleventh Circuit concluded that there was suffi-

cient evidence to sustain his conviction for possession with

intent to distribute under 21 U.S.C. §§ 841, 846, Hernandez,

2005 WL 3525613, at *4.

Therefore, under federal drug trafficking laws, Hernandez

was convicted for possession with intent to distribute under

the same facts that the majority argues would only qualify as

a “purchase” with intent to distribute. Yet, Hernandez’s con-

viction, because it occurred in federal court, would categori-

cally qualify as a drug trafficking offense under the

Sentencing Guidelines, whereas Morales-Perez’s state convic-

tion does not. See U.S.S.G. § 2L1.2 cmt. n.5. The result

makes no sense.

The whole point of this exercise is to determine when a

federal defendant should be punished more harshly for a sub-

sequent conviction when he has been previously convicted of

a drug trafficking crime. The district court had little difficulty

in concluding that Morales-Perez had previously been

involved in drug dealing activities. It concluded that “the fed-

eral definition of drug trafficking offense is broad enough to

include the crime for which [Morales-Perez] was convicted

. . . no matter how you read the state statute.” I agree. The dis-

trict court gave a sensible reading to the California statute and

we should do the same.

1942 UNITED STATES v. MORALES-PEREZ

At a minimum, the California statute requires the purchase

or possession of drugs with intent to sell. When convicted of

possession of cocaine base with the requisite intent to sell,

Morales-Perez committed a drug trafficking offense as con-

templated by the Sentencing Guidelines. See U.S.S.G.

§ 2L1.2(b)(1)(A). Because the majority’s overscrupulous

application of the Taylor categorical approach to § 11351.5

defies any common sense reading of the Sentencing Guide-

lines, I respectfully dissent.

The “purchase for purpose of sale” is the quintessential

“drug trafficking offense.” After the purchaser has completed

his purchase, he has obtained the right to control the pur-

chased item. Under California law, a person has constructive

possession when he “maintains control or the right to control

the contraband.” People v. Showers, 68 Cal. Rptr. 459, 644

(1968). Because the definition of “drug trafficking offense” is

broad enough to include both constructive as well as actual

possession, I would find that a conviction under § 11351.5

categorically qualifies as a drug trafficking offense under

U.S.S.G. § 2L1.2(b)(1)(A). The Fifth Circuit agrees. See

United States v. Palacios-Quinonez, 431 F.3d 471, 473-77

(5th Cir. 2005) (finding that the district court did not err in

upholding the use of a conviction under California Health and

Safety Code § 11351.5 as constituting a drug trafficking

offense under U.S.S.G. § 2L1.2(b)(1)(A));2 United States v.

2

The majority’s decision is inconsistent with the Fifth Circuit’s reason-

ing in Palacios-Quinonez. The Palacios-Quinonez panel reviewed the dis-

trict court’s decision for plain error. 431 F.3d at 473. There are three steps

to the plain error analysis: (1) was there an error; (2) was it plain by being

clear or obvious; and (3) did it affect the defendant’s substantial rights.

United States v. Olano, 507 U.S. 725, 731-37 (1993). The Palacios-

Quinonez panel never reached the question of whether the error was plain

or obvious because it held that the district court did not err in finding that

a prior conviction under § 11351.5 categorically qualified as a drug traf-

ficking offense. See 431 F.3d at 474 (dismissing the argument that it is

“possible to purchase controlled substances without actually or construc-

tively possessing them” as lacking any merit (internal quotation marks

omitted)).

UNITED STATES v. MORALES-PEREZ 1943

James, 430 F.3d 1150, 1153-54 (11th Cir. 2005) (holding that

a Florida statute which criminalizes the purchase or posses-

sion of 28 grams or more of cocaine qualifies as a “serious

drug offense” under the Armed Criminal Career Act).

In James, the issue was whether a conviction under Florida

statute § 893.135(1)(b)(1) falls within the definition of “seri-

ous drug offense” under the Armed Career Criminal Act. Sim-

ilar to the definition of drug trafficking offense under the

Sentencing Guidelines, the Armed Career Criminal Act

defines a serious drug offense as “an offense under State law,

involving manufacturing, distributing, or possessing with

intent to manufacture or distribute, a controlled substance

. . . .” 18 U.S.C. § 924(e)(2)(A)(ii). The Florida statute pro-

vided that “[a]ny person who knowingly sells, purchases,

manufactures, delivers, . . . or who is knowingly in actual or

constructive possession of, 28 grams or more of cocaine, . . .

commits a felony of the first degree . . . .” FLA. STAT.

§ 893.135(1)(b)(1). Although the Florida statute contained the

word “purchase” when the definition of “serious drug

offense” did not, the Eleventh Circuit nonetheless found that

the Florida statute fell within the broad definition of a serious

drug offense for purposes of sentencing enhancement. James,

430 F.3d at 1155.3 The court believed that if it held otherwise,

it “would create an anomaly.” Id.

3

The primary issue in James was whether the Florida statute satisfied

the “[Armed Career Criminal Act’s] requirement that the offense involve

the ‘intent to manufacture or distribute’ because the Florida statute does

not have ‘as an element’ of the offense an intent to manufacture or distrib-

ute.” 430 F.3d at 1153 (internal citation omitted). The Eleventh Circuit

held that it did have the required intent element because “Florida’s drug

trafficking statute necessarily infers an intent to distribute.” Id. at 1155.

Although it did not directly address the effect of the Florida statute includ-

ing “purchase” as a means of violating the statute, the Eleventh Circuit

found that the Florida statute categorically qualified as a serious drug

offense. I find this to be persuasive and analogous to the California statute

at issue here.

1944 UNITED STATES v. MORALES-PEREZ

In this case, the majority creates an anomaly by holding

that a conviction for the purchase of cocaine base with the

intent to sell does not qualify as a drug trafficking offense

under the Sentencing Guidelines. But, under both federal and

California law, it is the act completed with the intent to sell

that differentiates simple possession of a small quantity for

personal use from possession with intent to distribute. Further,

the term “possession,” as it is used in the Sentencing Guide-

lines to define a drug trafficking offense, encompasses con-

structive as well as actual possession. Palacios-Quinonez, 431

F.3d at 477; see also United States v. Smith, 962 F.2d 923,

929 (9th Cir. 1992) (“Possession of a controlled substance

with intent to distribute may be either constructive or actual.”

(citing United States v. Disla, 805 F.2d 1340, 1350 (9th Cir.

1986))); United States v. Batimana, 623 F.2d 1366, 1369 (9th

Cir. 1980) (holding that possession of a controlled substance

under 21 U.S.C. § 841(a)(1) may be actual or constructive).

California construes its drug trafficking laws similarly. See

Showers, 68 Cal. Rptr. at 644 (“Possession may be actual or

constructive.”). If a person can be convicted of possession

with intent to sell when he exhibits only constructive posses-

sion, then logically, constructive possession with intent to sell

must also qualify as a drug trafficking offense under the Sen-

tencing Guidelines.

The majority argues that a person can purchase something

without actually obtaining possession of that item, and that if

we construe the statute any differently, we would “divest the

purchase alternative of its independent meaning.” Maj. op.

1937. However, “a completed purchase transfers the ‘legal’

right to control the substance from the seller to the purchaser

or his agents.” Palacios-Quinonez, 431 F.3d at 474. There-

fore, because a purchaser has the legal right to control the pur-

chased item, he has also obtained constructive possession of

that item.

The California courts have never held that someone can

purchase contraband without ever obtaining possession. In

UNITED STATES v. MORALES-PEREZ 1945

Armstrong v. Superior Court, 217 Cal. App. 3d 535 (Ct. App.

1990), the California Court of Appeal found no constructive

possession when the defendant “entered into and fulfilled all

terms of an agreement to purchase the contraband from gov-

ernment agents.” Id. at 538. Importantly, in that case the law

enforcement agents never intended to give up their right to

control the contraband to the defendant and the purchase was

never completed. Id. Thus, the defendant never obtained the

“right to control.” Unlike § 11351.5, the statute at issue in

Armstrong did not criminalize the purchase with intent to sell,

and the Armstrong court refused to decide whether the defen-

dant’s actions in that case constituted a purchase rather than

an attempted purchase. See id. at 540 n.2; see also Palacios

Quinonez, 431 F.3d at 474-75. The California court did not

need to address the issue, and by refusing to do so, it did not

implicitly find that a defendant who never possesses contra-

band can nonetheless be prosecuted for purchasing the contra-

band. See Palacios-Quinonez, 431 F.3d at 475.

More to the point, under California law, a defendant who

purchases contraband with the intent to sell necessarily has

constructive possession of the contraband. A defendant “has

constructive possession when he maintains control or a right

to control.” Showers, 68 Cal. Rptr. at 644; see also California

Jury Instructions — Criminal 12.01 (“ ‘Constructive posses-

sion’ does not require actual possession but does require that

a person knowingly exercise control over or right to control

a thing, either directly or through another person or per-

sons.”). Once the purchase is completed, the purchaser

becomes the owner of the purchased property. In other words,

the purchaser obtains the “right to control” that property and,

hence, has constructive possession of it. See United States v.

Johnson, 187 F.3d 1129, 1134 (9th Cir. 1999) (defining con-

structive possession as the “ownership, dominion or control

over the contraband” (emphasis added) (internal quotation

marks and citation omitted)).

1946 UNITED STATES v. MORALES-PEREZ

Furthermore, when the purchase requirement is combined

with the intent to sell element of the statute, it is clear that the

purchaser has the requisite right to control the contraband. A

defendant’s sentence cannot be enhanced for a prior “drug

trafficking” conviction if that conviction required mere pos-

session or purchase of contraband. United States v. Herrera-

Roldan, 414 F.3d 1238, 1240 (10th Cir. 2005) (holding that

a Texas statute that criminalized the mere possession, not pos-

session with intent to distribute, did not categorically qualify

as a drug trafficking offense under the Sentencing Guide-

lines). However, the California statute requires more than

simple possession or a purchase; it also requires, as an ele-

ment of the crime, that the defendant have the intent to dis-

tribute. Cf. United States v. Benitez-Perez, 367 F.3d 1200,

1240 (9th Cir. 2004) (holding that a Nevada statute “which

provides that ‘it is unlawful for a person to possess for the

purposes of sale’ . . . any controlled substance” categorically

qualified as a drug trafficking offense). If it can be proved that

the defendant had the intent to sell the contraband, it follows

that the defendant had the right to control that item, and is

“trafficking” in that commodity.4

By correctly holding that this statute categorically qualifies

as a drug trafficking offense under the Sentencing Guidelines,

we would not be neglecting the “cardinal principle of statu-

tory construction that [we] must give effect, if possible, to

every clause and word of a statute.” Williams v. Taylor, 529

U.S. 362, 404 (2000). A purchaser of an item acquires the

“right to control,” or an ownership interest in the purchased

item through a transfer from a third party. Palacios-Quinonez,

431 F.3d at 476 n.6. By separating purchase and possession,

4

In comparison, a person who is ordered to purchase an item for a third

party may never obtain actual or constructive possession of that item.

However, such a situation would not result in a conviction under this stat-

ute. Under § 11351.5, a defendant must purchase the contraband with the

intent to sell. Therefore, the defendant is not merely purchasing the contra-

band for a third party; he is purchasing the contraband to resell it. In order

to resell that contraband, he must have some “right to control.”

UNITED STATES v. MORALES-PEREZ 1947

the California statute merely makes it clear that possession

with intent to sell is enough, as it is under federal law. Cf. 21

U.S.C. § 841(a)(1). A defendant does not necessarily have to

purchase the drugs (acquire them through transfer) in order to

be convicted. Rather, a defendant may obtain possession by

another means, such as by manufacturing, stealing, or finding

the contraband. Palacios-Quinonez, 431 F.3d at 476 n.6.

The distinction becomes even more evident when it is con-

sidered in the context of joint possession. In California, pos-

session of contraband “can be predicated upon a showing of

nonexclusive or joint possession.” People v. Saldana, 157

Cal. App. 3d 443, 460 (1984). Therefore, although a third

party may have purchased the contraband, the purchase by a

third party does not preclude prosecuting a defendant who is

in actual or constructive possession of that same contraband

without having actually purchased it himself.

The district court got it right. A common sense reading of

the California statute leads to only one logical conclusion: it

is a drug trafficking offense. A defendant who completes the

purchase of contraband with the intent to resell it has obtained

the “right to control” or sell that contraband. He has posses-

sion. In federal court, Morales-Perez would have been con-

victed of either possession with intent to distribute or

attempted possession with intent to distribute. Both are

offenses that fall within the definition of a drug trafficking

offense in the Sentencing Guidelines. Consequently, a convic-

tion under California Health and Safety Code § 11351.5 cate-

gorically qualifies as a predicate drug trafficking offense and

the district court correctly enhanced the federal sentence by

16 levels under U.S.S.G § 2L1.2(b)(1)(A). I respectfully dis-

sent.