United States v. Luis Ocampo-Estrada

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50471

Plaintiff-Appellee,

D.C. No.

v. 3:12-cr-3850-

JAH-2

LUIS OCAMPO-ESTRADA, AKA Luis

Enrique Ocampo,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Southern District of California

John A. Houston, District Judge Presiding

Argued and Submitted April 4, 2017

Pasadena, California

Filed August 29, 2017

Before: David M. Ebel,* Milan D. Smith, Jr.,

and N. Randy Smith, Circuit Judges.

Opinion by Judge Ebel

*

The Honorable David M. Ebel, United States Circuit Judge for the

U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

2 UNITED STATES V. OCAMPO-ESTRADA

SUMMARY **

Criminal Law

The panel affirmed a conviction for conspiracy to

distribute methamphetamine, vacated the sentence, and

remanded for resentencing.

The panel held that the district court did not abuse its

discretion in denying the defendant’s requested theory-of-

defense jury instruction on the buyer-seller exception to

conspiracy liability.

The panel held that California Health & Safety Code

§ 11378 is a divisible statute that is susceptible to the

modified categorical approach. The panel held that using the

modified categorical approach, the government failed to

demonstrate that the defendant’s § 11378 conviction was

based on a guilty plea to a controlled-substance element that

is included within the “felony drug offense” definition set

forth in 21 U.S.C. § 802(44). The panel therefore concluded

that the defendant’s prior conviction does not qualify as a

felony drug offense that would enhance his statutory

mandatory minimum sentence under 21 U.S.C.

§ 841(b)(1)(A).

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

UNITED STATES V. OCAMPO-ESTRADA 3

COUNSEL

Devin Burstein (argued), Warren & Burstein, San Diego,

California, for Defendant-Appellant.

Daniel Earl Zipp (argued), Assistant United States Attorney;

Helen H. Hong, Chief, Appellate Section; Criminal

Division, United States Attorney’s Office, San Diego,

California; for Plaintiff-Appellee.

OPINION

EBEL, Circuit Judge:

Defendant Luis Ocampo-Estrada (Ocampo) was

convicted of conspiracy to distribute methamphetamine in

violation of 21 U.S.C. §§ 841(a)(1) and 846. The district

court then determined that Ocampo had previously been

convicted of a state offense, which qualified as a “felony

drug offense” under 21 U.S.C. § 841(b)(1)(A), thereby

triggering a twenty-year mandatory minimum sentence. The

predicate offense was California Health & Safety Code

section 11378, which prohibits the possession of certain

controlled substances for sale.

Ocampo appeals both his federal conviction and

sentence. Because the district court did not abuse its

discretion in denying Ocampo’s requested jury instruction,

his conviction is AFFIRMED. The sentence however does

not survive. We hold that California Health & Safety Code

section 11378 is a divisible statute that is susceptible to the

modified categorical approach. However, using the

modified categorical approach, the government failed to

prove that Ocampo had pleaded guilty to violating a

4 UNITED STATES V. OCAMPO-ESTRADA

controlled-substance element under section 11378 that is

encompassed by the federal definition for “felony drug

offense,” 21 U.S.C. § 802(44). Accordingly, his sentence is

VACATED and the matter is REMANDED to the district

court for resentencing.

I. BACKGROUND

For almost a year, Ocampo would regularly supply

methamphetamine to Norman Nooris who, in turn, would

distribute it to buyers. Homeland Security Investigations

(HSI) first observed this supplier-dealer relationship on

October 18, 2011, when Nooris told undercover agents he

needed to “reload his supply.” ER 351. A short time later,

Ocampo arrived driving a black SUV and handed Nooris

some methamphetamine, which Nooris then sold to the

undercover agents.

On October 25, 2011, the same agents arranged for

another drug purchase from Nooris. Nooris asked Ocampo

to “front[]” him the methamphetamine, i.e., to require

payment only after the sale was complete. ER 148–49.

Ocampo agreed to front Nooris the drugs, drove him to the

parking lot where the sale was to take place, and then he

waited in the car while Nooris sold an ounce of

methamphetamine to the undercover agents. After the sale

was completed, Nooris rejoined Ocampo in the car, and the

two drove off.

After these two arranged purchases, HSI officers

obtained authorization to monitor cell-phone conversations

between Nooris and Ocampo. On December 6, 2011, Nooris

told Ocampo that Nooris had customers waiting and asked

when Ocampo would have the drugs. Ocampo updated him

on the forthcoming supply, explaining it would be available

UNITED STATES V. OCAMPO-ESTRADA 5

in a few hours after his courier delivered it from across the

Mexican border.

The next day, Ocampo informed Nooris that he had “two

bomb ones” available, ER 119, and Nooris asked again if

Ocampo could front him the drugs. Ocampo agreed and

provided the methamphetamine on credit. Later that day,

Nooris called to give Ocampo an update on the sale,

explaining that his customer “only wanted a half.” ER 129.

A few weeks later, agents intercepted another series of

calls in which Ocampo and Nooris arranged for more drug

sales. On December 26, 2011, Nooris asked if Ocampo

could deliver the drugs immediately in order to satisfy one

of Nooris’s buyers, “the white dude.” ER 636. Ocampo

responded that he would come immediately. A few days

after that, Nooris asked Ocampo to bring more

methamphetamine so that Nooris could sell it while Ocampo

waited in the car. That same night, Ocampo and Nooris met

again for another resupply.

On January 19, 2012, Nooris arranged to sell some of

Ocampo’s supply on consignment, i.e., on credit, offering

assurance that Ocampo would receive payment as soon as

the methamphetamine could be sold that evening. Nooris

kept Ocampo apprised of the status of the sales during that

night. The next day, Nooris called again for a resupply,

commenting that he had most of the money needed to pay

down his “tab” with Ocampo. ER 158, 711. Nooris said one

of his customers “wanted to get somethin kinda big,” ER

717, and so Ocampo agreed to the resupply.

The frequency and duration of the dealings were

substantial. Over the course of this relationship, Ocampo

was Nooris’s “most consistent source” of

methamphetamine, and Nooris obtained the drugs from

6 UNITED STATES V. OCAMPO-ESTRADA

Ocampo for “almost a year.” ER 82, 197. Sometimes, the

two would meet “two or three times a day.” ER 142.

On January 22, 2012, Nooris was pulled over for

speeding and, after officers searched his car and discovered

methamphetamine, they arrested him. While in custody at

the county jail, Nooris spoke with Ocampo on a recorded jail

call. In that call, Ocampo asked permission to sell the drugs

to Nooris’s customers while Nooris was incarcerated.

Nooris agreed and gave Ocampo advice on how to find these

customers, what to watch out for, and how much to sell.

Eventually federal agents arrested Ocampo on October 19,

2012, and the United States charged both Nooris and

Ocampo with conspiracy to distribute methamphetamine

under 21 U.S.C. §§ 841 and 846.

Nooris pleaded guilty, but Ocampo went to trial. After

the jury convicted Ocampo, the district court applied a

twenty-year mandatory minimum sentence based on a

determination that Ocampo’s prior California conviction

qualified as a felony drug offense under 21 U.S.C.

§ 841(b)(1)(A). Ocampo now appeals his conviction and

sentence.

II. DISCUSSION

A. The Evidence was Insufficient to Support a Buyer-

Seller Instruction

We begin with Ocampo’s conviction. Before closing

argument, Ocampo requested a theory-of-defense jury

instruction on the buyer-seller exception to conspiracy

liability. That exception provides that a mere sales

transaction does not constitute an “agreement” sufficient to

support a conspiracy conviction—there must be proof of

some further agreement to commit a crime other than the sale

UNITED STATES V. OCAMPO-ESTRADA 7

itself, i.e., “to further distribute the drug in question.” E.g.,

United States v. Moe, 781 F.3d 1120, 1124–25 (9th Cir.

2015). The district court found insufficient evidence to

warrant the instruction and denied it. We review that

decision for abuse of discretion. United States v. Bello-

Bahena, 411 F.3d 1083, 1089 (9th Cir. 2005).

“A criminal defendant has a constitutional right to have

the jury instructed according to h[is] theory of the case,

provided that the requested instruction is supported by law

and has some foundation in evidence.” Moe, 781 F.3d at

1127 (emphasis added). The question is whether “there is

evidence upon which the jury could rationally sustain the

defense.” United States v. Jackson, 726 F.2d 1466, 1468

(9th Cir. 1984); accord Moe, 781 F.3d at 1128.

We hold that the district court did not abuse its discretion

in denying Ocampo’s requested buyer-seller instruction

because the evidence established at trial was not sufficient to

sustain that theory of defense. Ocampo was Nooris’s most

consistent source for drugs and the relationship persisted for

almost a year, with distributions to Nooris occurring

frequently. Moreover, the majority of Ocampo’s sales to

Nooris were made on some form of credit, and involved

amounts given to Nooris that exceeded the amount typical

for personal use. Ocampo knew that Nooris was dividing up

the drugs for resale, and the two of them advised each other

on the conduct of their respective roles in the business. The

force of the government’s evidence, coupled with the lack of

contradictory evidence, compel our conclusion that the

district court did not abuse its discretion in declining the

requested buyer-seller instruction.

We now turn to the sentence of imprisonment.

8 UNITED STATES V. OCAMPO-ESTRADA

B. Failure to Show Prior Conviction Qualifies as

Felony Drug Offense

1. Sentencing Proceedings

Before trial, the government filed an Information under

21 U.S.C. § 851 notifying Ocampo that it would enhance his

statutory mandatory minimum sentence to twenty years

based on Ocampo’s prior felony drug conviction under

California law. The enhancement was to be based on

Ocampo’s September 9, 1998 conviction under California

Health & Safety Code section 11378, which criminalizes the

possession of certain controlled substances for sale. The

United States took the position that this conviction qualified

as a “felony drug offense” under 21 U.S.C. § 841(b)(1)(A).

The term “felony drug offense” is defined in 21 U.S.C.

§ 802(44) as “an offense that is punishable by imprisonment

for more than one year under any law of the United States or

of a State or foreign country that prohibits or restricts

conduct relating to narcotic drugs, marihuana, anabolic

steroids, or depressant or stimulant substances.” (emphasis

added.) To support its burden, the government introduced

the state-court minutes from the pronouncement of

judgment, and the abstract of judgment of the state

proceeding. While these materials clearly show Ocampo

pleaded guilty to California Health & Safety Code

section 11378, they do not describe which controlled

substance under California law Ocampo pleaded guilty to

possessing for sale.

Ocampo attacked the proposed federal sentence

enhancement on several grounds, but he did not challenge it

on the basis that his prior conviction failed to qualify as a

felony drug offense. However, neither did the district court

advise him that he was required to make timely challenges

to the proposed enhancement in order to avoid a statutory

UNITED STATES V. OCAMPO-ESTRADA 9

waiver under 21 U.S.C. § 851(c)(2) (“Any challenge to a

prior conviction, not raised by response to the information

before an increased sentence is imposed in reliance thereon,

shall be waived . . . .”).

After the trial, when it came time for sentencing,

Ocampo made several objections to the presentence report,

which had concluded that Ocampo’s criminal behavior was

escalating. He countered by stating that his prior California

state conviction only “involve[d] 57 grams of

Methamphetamine.” ER 779. 1 Again, however, he did not

object that his prior California conviction did not qualify as

a felony drug offense.

Because the argument was not raised, the district court

did not analyze whether Ocampo’s prior conviction qualified

as a felony drug offense. Thus, without discussion of that

issue, the district court proceeded to impose the twenty-year

mandatory minimum sentence under 21 U.S.C.

§ 841(b)(1)(A). Ocampo now argues on appeal for the first

time that his California section 11378 conviction does not

qualify as a felony drug offense. 2

1

The federal definition of “felony drug offense” encompasses

methamphetamine. See 21 U.S.C. § 802(44) (defining felony drug

offense to include “depressant or stimulant substances,” which is further

defined by § 802(9)(B) to include amphetamines); see also United States

v. Mincoff, 574 F.3d 1186, 1201 (9th Cir. 2009). But as explained below,

we do not rely on this statement in Ocampo’s objections to the instant

federal presentence report to conclude that Ocampo necessarily pleaded

guilty in the state prosecution to possession of methamphetamine for

sale.

2

Ocampo also argues that the definition of felony drug offense in

21 U.S.C. § 802(44) is unconstitutionally vague on its face, but we do

not reach that question because it does not affect the result.

10 UNITED STATES V. OCAMPO-ESTRADA

2. Ocampo Did Not Waive This Challenge

The United States contends that Ocampo waived this

challenge by failing to raise it before the district court as

required by 21 U.S.C. § 851(c)(2). That statute sets forth the

procedures for establishing prior convictions for the purpose

of sentencing enhancements. Preliminarily, before trial or

entry of a guilty plea, the United States must file an

Information identifying “the previous conviction[] to be

relied upon” to enhance the defendant’s sentence. Id.

§ 851(a)(1).

Then after conviction but before imposing the sentence,

the district court “shall . . . inquire of the [offender] . . .

whether he affirms or denies [the prior conviction] . . . , and

shall inform him that any challenge to a prior conviction” is

waived if not made before sentencing. Id. § 851(b)

(emphasis added). “We require strict compliance with the

procedural aspects of section 851(b). The § 851(b) colloquy

is not merely a procedural requirement. It serves a

functional purpose to place the procedural onus on the

district court to ensure defendants are fully aware of their

rights.” United States v. Rodriguez, 851 F.3d 931, 946 (9th

Cir. 2017) (internal quotation marks and citation omitted).

The problem here is that the district court never asked

Ocampo whether he affirmed or denied the 1998 conviction

as alleged, nor did the court advise Ocampo that failure to

make a timely challenge would constitute waiver. That

defeats any argument by the United States that Ocampo

waived his challenge, as Ocampo “was not required to affirm

or deny the convictions or file a written response until

addressed personally by the district court and advised of his

obligation to do so and—importantly—that any failure to do

UNITED STATES V. OCAMPO-ESTRADA 11

so waived any objections.” Id. at 947. Accordingly, we

proceed to the merits of the argument. 3

3. Prior Conviction Does Not Qualify As a Felony

Drug Offense

To determine whether Ocampo’s conviction under

California Health & Safety Code section 11378 would

qualify as a federal felony drug offense, we look to the

statutory elements under which the offender was previously

convicted, rather than the underlying conduct or facts giving

rise to that conviction. See United States v. Hollis, 490 F.3d

1149, 1157 (9th Cir. 2007), abrogated on other grounds by

DePierre v. United States, 564 U.S. 70 (2011); accord

United States v. Hernandez, 312 F. App’x 937, 939 (9th Cir.

2009) (unpublished) (applying the categorical approach to

the “felony drug offense” definition). This analysis requires

a categorical comparison between the predicate offense of

conviction and the federal definition. First, “we ask whether

the statute of conviction is a categorical match to the generic

predicate offense; that is, if the statute of conviction

criminalizes only as much (or less) conduct than the generic

offense.” Medina-Lara v. Holder, 771 F.3d 1106, 1112 (9th

Cir. 2014). The parties do not dispute that the statute of

conviction is “overbroad.” See id. Thus, we next “ask if the

statute of conviction’s comparatively ‘overbroad’ element is

divisible.” Id.

If a predicate statute is divisible—i.e., it lists alternative

elemental versions of the offense within the same statute,

3

It is also settled “that failure to comply with section 851(b) renders

the sentence illegal,” subject to a harmlessness analysis. Rodriguez,

851 F.3d at 946 (quoting United States v. Housley, 907 F.2d 920, 921

(9th Cir. 1990)). However, Ocampo never makes this argument on

appeal, so we do not address it.

12 UNITED STATES V. OCAMPO-ESTRADA

rather than simply separate means for committing a single

offense—then the modified categorical approach is used to

determine which elemental version of the offense was

committed. See Mathis v. United States, 136 S. Ct. 2243,

2249 (2016). In such a case, “a sentencing court looks to a

limited class of documents” from the record of a prior

conviction to determine which version of the offense was the

basis for that conviction. Id. (citing Shepard v. United

States, 544 U.S. 13, 26 (2005)). The limited class of

documents includes “the terms of the charging document,

the terms of the plea agreement or transcript of colloquy

between judge and defendant in which the factual basis for

the plea was confirmed by the defendant, or to some

comparable judicial record of this information.” Shepard,

544 U.S. at 26. In the context of a guilty plea, that inquiry

is “limited to assessing whether the defendant ‘necessarily

admitted’ the elements of the particular statutory alternative

that is a categorical match” with the federal definition.

United States v. Sahagun-Gallegos, 782 F.3d 1094, 1100

(9th Cir. 2015) (quoting Descamps v. United States,

133 S. Ct. 2276, 2284 (2013)).

With this in mind, the threshold question then is whether

California Health & Safety Code section 11378 is a divisible

statute. We hold that it is. In United States v. Martinez-

Lopez, — F.3d —, No. 14-50014, 2017 WL 3203552, at *5

(9th Cir. July 28, 2017) (en banc), our en banc Court recently

held that a similar statute, California Health & Safety Code

section 11352, is divisible with respect to its controlled-

substance requirement. In other words, the controlled

substances referenced in section 11352 are treated as listing

separate offenses, rather than merely listing separate means

of committing a single offense.

UNITED STATES V. OCAMPO-ESTRADA 13

The rationale of Martinez-Lopez applies with equal force

to section 11378, the statute before us. Martinez-Lopez

relied principally on a California Supreme Court decision, In

re Adams, 536 P.2d 473, 479 (Cal. 1975), which implicitly

approved of multiple convictions under a single drug statute

when the conduct involved different types of drugs.

2017 WL 3203552, at *5 (“As a result of Adams and its

progeny, defendants are routinely subjected to multiple

convictions under a single statute for a single act as it relates

to multiple controlled substances.”). That means that the

particular drug at issue is not an alternative means of

committing a single offense, but in fact constitutes a distinct

offense. Id. This principle logically extends past section

11352 to other California drug laws that criminalize an

activity relating to other referenced controlled substances

including section 11378. 4

Martinez-Lopez also pointed out that California jury

instructions require a jury to fill in a blank identifying the

controlled substance implicated under section 11352.

2017 WL 3203552, at *5. So too for § 11378. Judicial

Council of California Criminal Jury Instructions

(CALCRIM) 2302. Finally, the Court’s citation to scholarly

commentary on California law—that “‘[a] specified

controlled substance’ [is] an element common to all criminal

drug offenses”—applies to § 11378 as it does to many other

California criminal drug laws. 2017 WL 3203552, at *5

(quoting 2 Witkin, Cal. Crim. Law § 102(1)(a) (4th ed.

2012)). Thus, as a simple extension of Martinez-Lopez’s

logic to a different but similarly structured statute, we hold

4

The en banc Court recognized in its opening sentence that its

holding would necessarily have implications beyond section 11352: “We

took this case en banc to revisit the divisibility of California drug

statutes.” Martinez-Lopez, 2017 WL 3203552, at *1 (emphasis added).

14 UNITED STATES V. OCAMPO-ESTRADA

that section 11378 is also divisible. This holding enables

sentencing courts to use the modified categorical approach

to determine which controlled-substance element necessarily

formed the basis of an offender’s prior conviction under

section 11378.

Looking to the “limited class of documents” from the

record of the prior conviction, Mathis, 136 S. Ct. at 2249,

there is simply no indication of which controlled-substance

element Ocampo pleaded guilty to as part of his

section 11378 conviction. The United States shoulders the

burden to prove a prior conviction qualifies as a felony drug

offense, see United States v. Pimentel-Flores, 339 F.3d 959,

968 (9th Cir. 2003), but here the government’s proof is

inadequate. The government offers from the record of

conviction only the abstract of judgment and the state-court

minutes from the pronouncement of judgment, but neither

document answers the central question before us: whether

Ocampo pleaded guilty to a controlled-substance element of

section 11378, which is encompassed by the federal “felony

drug offense” definition in 21 U.S.C. § 802(44).

Lacking such proof, the United States hangs its case on

Ocampo’s statement made when objecting to the

presentence report in the case before us. Ocampo stated his

prior offense “involve[d] 57 grams of Methamphetamine.” 5

ER 779. But there are two problems with relying upon this

statement as a basis to enhance Ocampo’s sentence. First,

Ocampo’s statement made in the instant case appears in a

5

California Health & Safety Code section 11378 includes

methamphetamine within its ambit. Subsection (5) of that statute

incorporates by reference the substances listed in California Health &

Safety Code section 11055(d), which in turn includes methamphetamine,

see id. § 11055(d)(2).

UNITED STATES V. OCAMPO-ESTRADA 15

document that is outside the “limited class of documents”

from the record of a prior conviction upon which a

sentencing court may rely to determine which version of an

offense was the basis for a prior conviction. Mathis, 136 S.

Ct. at 2249.

Second, this statement does not constitute an admission

that methamphetamine was the element of section 11378 to

which Ocampo pleaded guilty—at best it indicates that the

conduct giving rise to his prior conviction “involve[d]”

methamphetamine. ER 779. We cannot assume from

Ocampo’s statement here that his section 11378 conviction

was predicated on a plea of guilty to the controlled-substance

element of methamphetamine in particular. To do so would

clash with the Supreme Court’s “demand for certainty” when

attempting to match a predicate offense with a federal

statute. Shepard, 544 U.S. at 21. In fact, the Supreme Court

has expressly forbidden reliance upon the underlying facts

of a prior conviction to determine whether the prior offense

categorically matches the federal statute at issue. Descamps,

133 S. Ct. at 2287 (a sentencing court cannot “discover what

the defendant actually did” and then use those discovered

facts to establish a categorical match); see also Sahagun-

Gallegos, 782 F.3d at 1100–01 (same). 6

With no judicially noticeable documents from the record

of conviction that answer the question, and without resorting

to Ocampo’s statement in his objections to the presentence

6

Nor do we treat this statement as a waiver or concession that his

1998 conviction qualifies as a felony drug offense. He did not say he

was waiving the argument that his section 11378 conviction is not a

felony drug offense. In fact, the context of his statement was that he was

opposing the probation office’s conclusion that his criminal behavior

was escalating—he was not intentionally relinquishing his right to

challenge the government’s effort to establish a categorical match.

16 UNITED STATES V. OCAMPO-ESTRADA

report, we hold that the United States has failed to

demonstrate that Ocampo’s section 11378 conviction was

based on a guilty plea to a controlled-substance element that

is included within the federal “felony drug offense”

definition. Accordingly, we cannot say that Ocampo’s prior

conviction categorically qualified as a felony drug offense.

The sentence therefore is vacated.

III. CONCLUSION

The conviction is AFFIRMED. The sentence is

VACATED, and the matter is REMANDED for

resentencing.