United States v. Gibran Figueroa-Beltran

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF No. 16-10388

AMERICA,

Plaintiff-Appellee, D.C. No.

2:15-cr-00176-KJD-GWF-1

v.

ORDER CERTIFYING

GIBRAN RICHARDO QUESTIONS TO THE

FIGUEROA-BELTRAN, NEVADA SUPREME

Defendant-Appellant. COURT

Filed June 6, 2018

Before: Diarmuid F. O’Scannlain and Johnnie B.

Rawlinson, Circuit Judges, and Sarah S. Vance,* District

Judge.

*

The Honorable Sarah S. Vance, United States District Judge for the

Eastern District of Louisiana, sitting by designation.

2 UNITED STATES V. FIGUEROA-BELTRAN

SUMMARY**

Criminal Law / Certification of Questions to Nevada

Supreme Court

In an appeal from a criminal sentence, the panel certified

the following questions to the Nevada Supreme Court:

1. Is Nev. Rev. Stat. § 453.337 divisible as to

the controlled substance requirement?

2. Does the decision in Luqman conclude that

the existence of a controlled substance is a

“fact” rather than an “element” of § 453.337,

rendering the statute indivisible? If so, can

this conclusion be reconciled with Muller?

3. Does the decision in Muller conclude that

offenses under § 453.337 comprise “distinct

offenses requiring separate and different

proof,” rendering the statute divisible as to the

controlled substance requirement? If so, can

this be reconciled with Luqman?

**

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. FIGUEROA-BELTRAN 3

ORDER

The issue for decision in this case is whether Nevada

Revised Statute § 453.337, which criminalizes conduct

related to certain controlled substances identified by reference

to the Nevada Administrative Code, is divisible under federal

law for the purpose of applying the federal sentencing

guidelines.1 This question of law is determinative of the

matter pending before this court and we are not aware of any

clearly controlling precedent in the existing decisions of the

Nevada Supreme Court. Accordingly, pursuant to Rule 5 of

the Nevada Rules of Appellate Procedure,2 we respectfully

request that the Nevada Supreme Court determine whether,

under Nevada law, § 453.337 is divisible.

1

Section 453.337 provides in pertinent part:

Except as otherwise authorized by the provisions of

NRS 453.011 to 453.552, inclusive, it is unlawful for a

person to possess for the purpose of sale flunitrazepam,

gamma-hydroxybutyrate, any substance for which

flunitrazepam or gamma-hydroxybutyrate is an

immediate precursor or any controlled substance

classified in schedule I or II.

Nev. Rev. Stat. § 453.337 (2017).

2

Rule 5(h) provides:

The written opinion of the Supreme Court stating the

law governing the questions certified shall be sent by

the clerk under the seal of the Supreme Court to the

certifying court and to the parties and shall be res

judicata as to the parties.

Nev. R. App. P. 5(h).

4 UNITED STATES V. FIGUEROA-BELTRAN

I. Factual and Procedural Background

In 2012, Gibran Figueroa-Beltran (Figueroa), a native of

Mexico, was found in possession of one gram of cocaine and

5.8 grams of heroin during a traffic stop. He was convicted

in the Eighth Judicial District Court of possession of a

controlled substance with intent to sell in violation of

§ 453.337 and sentenced to 19 to 48 months’ imprisonment.

He was paroled approximately one year later, but

subsequently arrested for selling a controlled substance, and

removed to Mexico.

Within two years of his removal, Figueroa illegally

reentered the United States, where he was once again arrested

for selling a controlled substance. While those charges were

pending, Figueroa was charged with 26 other counts of drug-

related offenses, including receiving stolen property,

receiving a stolen vehicle, being a prohibited person in

possession of firearms, operating a place for the sale of

controlled substances, possessing for sale Schedule I/II

controlled substances, trafficking Schedule I controlled

substances (28+ grams), conspiring to violate the federal

Controlled Substances Act, and selling Schedule I or II

controlled substances.

A federal grand jury later indicted Figueroa for being a

deported alien found unlawfully in the United States, in

violation of 8 U.S.C. § 1326.3 Figueroa pled guilty without

3

Section 1326 provides in pertinent part:

[A]ny alien who–

UNITED STATES V. FIGUEROA-BELTRAN 5

a plea agreement and the district court imposed a low-end

Guideline sentence of 41 months’ imprisonment followed by

a three-year term of supervised release. In calculating the 41-

month sentence, the district court began with a base offense

level of 8 and added a 16-level enhancement under United

States Sentencing Guidelines (U.S.S.G.) § 2L1.2 due to

Figueroa’s 2012 conviction for possession of a controlled

substance for sale. Figueroa objected to the enhancement,

noting that his conviction for a violation of § 453.337 did not

qualify as a drug trafficking offense.

Figueroa filed a timely appeal challenging the district

court’s application of the 16-level enhancement provided for

in U.S.S.G. § 2L1.2.4

(1) has been denied admission, excluded, deported, or

removed or has departed the United States while an

order of exclusion, deportation, or removal is

outstanding, and thereafter

(2) enters, attempts to enter, or is at any time found in,

the United States, unless (A) prior to his reembarkation

at a place outside the United States or his application

for admission from foreign contiguous territory, the

Attorney General has expressly consented to such

alien’s reapplying for admission; or (B) with respect to

an alien previously denied admission and removed,

unless such alien shall establish that he was not

required to obtain such advance consent under this

chapter or any prior Act . . .

8 U.S.C. § 1326.

4

Section 2L1.2 provided:

(a) Base Offense Level: 8

6 UNITED STATES V. FIGUEROA-BELTRAN

(b) Specific Offense Characteristic

(1) Apply the Greatest:

If the defendant previously was deported, or unlawfully

remained in the United States, after–

(A) a conviction for a felony that is (i) a drug

trafficking offense for which the sentence

imposed exceeded 13 months; (ii) a crime of

violence; (iii) a firearms offense; (iv) a child

pornography offense; (v) a national security or

terrorism offense; (vi) a human trafficking

offense; or (vii) an alien smuggling offense,

increase by 16 levels if the conviction receives

criminal history points under Chapter Four or

by 12 levels if the conviction does not receive

criminal history points;

(B) a conviction for a felony drug trafficking

offense for which the sentence imposed was

13 months or less, increase by 12 levels if the

conviction receives criminal history points

under Chapter Four or by 8 levels if the

conviction does not receive criminal history

points;

(C) a conviction for an aggravated felony,

increase by 8 levels;

(D) a conviction for any other felony, increase

by 4 levels; or

(E) three or more convictions for

misdemeanors that are crimes of violence or

drug trafficking offenses, increase by 4 levels.

U.S.S.G. § 2L1.2 (2015).

UNITED STATES V. FIGUEROA-BELTRAN 7

II. Governing Federal Law

Section 2L1.2 applied to defendants who “unlawfully

enter[ed] or remain[ed] in the United States.” U.S.S.G.

§ 2L1.2. At the time of Figueroa’s sentencing on August 24,

2016, Guideline § 2L1.2(b)(1)(A) provided for a base offense

level of 8, plus a 16-level enhancement if the defendant was

“previously . . . deported” and had a previous conviction for

a “drug trafficking offense” with a sentence exceeding

13 months. Id. § 2L1.2(b)(1)(A). The commentary to

Guideline § 2L1.2 defined a “drug trafficking offense” as:

an offense under federal, state, or local law

that prohibits the manufacture, import, export,

distribution, or dispensing of, or offer to sell

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.

Id. § 2L1.2, cmt. app. n.l (B)(iv) (2015).

To assess whether a prior conviction under § 453.337

qualified as a drug trafficking offense under Guideline

§ 2L1.2, we employ a “three-step analysis.” United States v.

Martinez-Lopez, 864 F.3d 1034, 1038 (9th Cir. 2017) (en

banc) (citation omitted). At the first step, “we ask whether

[§ 453.337] is a categorical match with a federal drug

trafficking offense.” Id. (citation omitted). In so doing, “we

look only to the statutory definitions of the corresponding

8 UNITED STATES V. FIGUEROA-BELTRAN

offenses.”5 Id. (citation and internal quotation marks

omitted). If § 453.337 “proscribes the same amount of or less

conduct than that qualifying as a federal drug trafficking

offense, then the two offenses are a categorical match,” and

the conviction under that statute “automatically qualifies as

a predicate drug trafficking offense.” Id. (citations and

internal quotation marks omitted).

If § 453.337 is not a categorical match, we proceed to the

second step of the analysis. At this step, “we ask whether

[§ 453.337] is a divisible statute which sets out one or more

elements of the offense in the alternative” and “thereby

defines multiple crimes.” Id. at 1038–39 (citations,

alterations, and internal quotation marks omitted). A statute

is not necessarily divisible because it is couched in terms of

a disjunctive list. Rather than relying on the disjunctive-list

articulation, we “consult authoritative sources of state law to

determine whether a statute contains alternative elements

defining multiple crimes or alternative means by which a

defendant might commit the same crime.” Id. at 1039

(citation and internal quotation marks omitted). If “(1) a

state court decision definitively answers the question, or

(2) the statute on its face resolves the issue,” our analysis

ends. Id. (citation, alterations, and internal quotation marks

omitted).

5

The federal comparator statute is the Controlled Substances Act

(CSA), 21 U.S.C. § 801 et seq. See Martinez-Lopez, 864 F.3d at 1037

(comparing the CSA with California drug trafficking statute for the

purpose of determining applicability of a sentencing enhancement

pursuant to U.S.S.G. § 2L1.2). Similarly to § 453.337, the CSA cross-

references federal drug schedules. See 21 U.S.C. § 802.

UNITED STATES V. FIGUEROA-BELTRAN 9

The elements of a statute “are the constituent parts of a

crime’s legal definition—the things the prosecution must

prove to sustain a conviction.” Mathis v. United States,

136 S. Ct. 2243, 2248 (2016) (citation and internal quotation

marks omitted). In contrast, the means used to fulfill an

element is “extraneous to the crime’s legal requirements.” Id.

The facts underlying the means “need neither be found by a

jury nor admitted by a defendant” for a conviction. Id. Our

divisibility inquiry thus turns on whether the elements of a

crime of conviction “are broader than those of a listed generic

offense,” without regard to “[h]ow a given defendant actually

perpetrated the crime.” Id. at 2251.

If § 453.337 is divisible, we “proceed to the third step in

our analysis and apply the modified categorical approach” in

which “we examine judicially noticeable documents of

conviction to determine which statutory phrase was the basis

for the conviction.” Martinez-Lopez, 864 F.3d at 1039

(citation omitted). “If the defendant pled or was found guilty

of the elements constituting a federal drug trafficking offense,

the prior state conviction [of violating § 453.337] may serve

as a predicate offense under the sentencing guidelines.” Id.

(citation omitted). We may apply this approach only if

§ 453.337 is divisible.

Section 453.337 prohibits the “possess[ion] for the

purpose of sale . . . any controlled substance classified in

schedule I or II.” Nev. Rev. Stat. § 453.337. To determine if

the statute is a categorical match for its federal counterpart,

we examine whether § 453.337 “proscribes the same amount

of or less conduct” than the federally defined offense.

Martinez-Lopez, 864 F.3d at 1038. As the government has

conceded, the schedules referenced in § 453.337 criminalize

more substances than are listed in the federal Controlled

10 UNITED STATES V. FIGUEROA-BELTRAN

Substances Act. Consequently, as in Martinez-Lopez, “[t]his

case . . . turns on the second step of our analysis,” whether

§ 453.337 is divisible and thereby susceptible to examination

under the modified categorical approach. Id. at 1039.

However, we are aware of no controlling Nevada precedent

definitively resolving whether or not § 453.337 is a divisible

statute.

III. Parties’ Arguments

Figueroa contends that the Nevada Supreme Court

decision of Sheriff v. Luqman, 697 P.2d 107 (Nev. 1985),

established that § 453.337 is not divisible as to the identity of

the controlled substance possessed by the accused.

According to Figueroa, Luqman established that, under

Nevada’s post-1981 statutory drug scheme, which

encompasses § 453.337, the identity of the controlled

substance is “merely a fact”—rather than an “element of the

offense.”

At issue in Luqman was the authority of the state board of

pharmacy to “classify drugs into various schedules according

to the drug’s propensity for harm and abuse,” thereby setting

the penalties for violations of the relevant statutory

provisions. 697 P.2d at 109–10. The Nevada Supreme Court

explained:

[T]he legislature can make the application or

operation of a statute complete within itself

dependent upon the existence of certain facts

or conditions, the ascertainment of which is

left to the administrative agency. In doing so

the legislature vests the agency with mere fact

UNITED STATES V. FIGUEROA-BELTRAN 11

finding authority and not the authority to

legislate. . . .

Id. (citations omitted). Luqman held that, “[a]lthough the

legislature may not delegate its power to legislate,” such

authorization to the board properly “delegate[d] the power to

determine the facts or state of things upon which the law

makes its own operations depend,” because the agency, by

classifying controlled substances, was “only authorized to

determine the facts which will make the statute effective.”

Id. (citations omitted). Figueroa seizes upon this language to

describe the identity of the controlled substance as a “fact”

rather than an “element” of § 453.337.

The government counters that the Nevada Supreme Court

decision of Muller v. Sheriff, 572 P.2d 1245 (Nev. 1977),

establishes that § 453.337 is divisible as to its controlled

substance requirement. In Muller, the defendant-appellant

contended that where “the sale of [two] different controlled

substances was consummated simultaneously in one

transaction, his conduct d[id] not constitute two separate

offenses for which he may be charged.” 572 P.2d at 1245.

The Nevada Supreme Court disagreed, holding that:

The sale of heroin and the sale of cocaine are

distinct offenses requiring separate and

different proof. Here the record shows that

two distinct offenses were (probably)

committed since the sale of each controlled

substance requires proof of an additional fact

which the other does not, viz., the particular

identity of the controlled substance sold.

12 UNITED STATES V. FIGUEROA-BELTRAN

Id. (citations, alterations, and internal quotation marks

omitted).

The government relies on this language to assert that the

Muller decision establishes the divisibility of § 453.337. The

government distinguishes Luqman on the basis that Luqman

“did not address whether the identity of a controlled

substance is an element of Nevada controlled substance

offenses.”

Luqman and Muller seemingly stand in conflict. Luqman

suggests that the identity of a controlled substance is a non-

elemental factual determination. In contrast, Muller appears

to conclude that the sale of one controlled substance is an

offense distinct from the sale of another, and proof of the

identity of the controlled substance at issue is required.

Without further guidance, we cannot say with confidence that

the Nevada precedent definitively answers the question

whether § 453.337 is divisible as to the identity of a

controlled substance.

IV. Certified Questions and Further Proceedings

When engaging in a divisibility inquiry, we look to such

authoritative sources of state law as state court decisions and

the wording of the relevant state statute. See Mathis, 136 S.

Ct. at 2256. If we cannot readily discern the nature of the

statute from these sources, we may further look to the record

documents—indictments, jury instructions, plea colloquies

and plea agreements—for guidance. See id. at 2256–57 and

n.7.

With this framework, we respectfully certify the

following questions of law to the Nevada Supreme Court:

UNITED STATES V. FIGUEROA-BELTRAN 13

1. Is Nev. Rev. Stat. § 453.337 divisible as to

the controlled substance requirement?

2. Does the decision in Luqman conclude that

the existence of a controlled substance is a

“fact” rather than an “element” of § 453.337,

rendering the statute indivisible? If so, can

this conclusion be reconciled with Muller?

3. Does the decision in Muller conclude that

offenses under § 453.337 comprise “distinct

offenses requiring separate and different

proof,” rendering the statute divisible as to the

controlled substance requirement? If so, can

this conclusion be reconciled with Luqman?

“Our phrasing of the questions should not restrict the

Court’s consideration of the issues involved. We

acknowledge that the Court may reformulate the relevant

state law questions as it perceives them to be, in light of the

contentions of the parties . . .” Raynor v. United of Omaha

Life Ins. Co., 858 F.3d 1268, 1273 (9th Cir. 2017) (citation

and alternations omitted). We will abide by the decision of

the Nevada Supreme Court, as specified in Nevada Rule of

Appellate Procedure 5(h). See Chapman v. Deutsche Bank

Nat’l Trust Co., 651 F.3d 1039, 1048 (9th Cir. 2011). “If the

Court determines that the questions presented in this case are

inappropriate for certification, or if it declines the

certification for any other reason, we will resolve the

questions according to our best understanding of [Nevada]

law.” Raynor, 858 F.3d at 1273.

We accordingly direct the Clerk of this court to forward

a copy of this order, under official seal, to the Nevada

14 UNITED STATES V. FIGUEROA-BELTRAN

Supreme Court, together with copies of all briefs and excerpts

of record that have been filed in this court, with a certificate

of service on the parties.

We stay further proceedings involving this case pending

a response from the Nevada Supreme Court. This appeal is

withdrawn from submission and will be resubmitted

following the conclusion of proceedings in the Nevada

Supreme Court. The Clerk is directed to administratively

close this docket, pending further order. We direct the parties

to notify the Clerk of this court within one week after the

Nevada Supreme Court accepts or rejects the certification,

and if it accepts certification, again to notify this court within

one week after that court renders its opinion. As required by

Nevada Rule of Appellate Procedure 5(c)(5), the names and

addresses of counsel appear in the appendix. See Chapman,

651 F.3d at 1048.

It is so ORDERED.

Respectfully submitted,

Diarmuid F. O’Scannlain and Johnnie B. Rawlinson,

Circuit Judges, and Sarah S. Vance, District Judge.

_______________________________

Johnnie B. Rawlinson

United States Circuit Judge, presiding

UNITED STATES V. FIGUEROA-BELTRAN 15

APPENDIX

Rene Valladares, Federal Public Defender, and Cristen C.

Thayer and Amy B. Cleary, Assistant Federal Public

Defenders, 411 E. Bonneville, Ste. 250, Las Vegas, Nevada

89101, for Defendant-Appellant.

Dayle Elieson, Interim United States Attorney, Elizabeth O.

White, Appellate Chief, and Nancy M. Olson, Assistant

United States Attorney, District of Nevada, 501 Las Vegas

Blvd. S., Suite 1100, Las Vegas, Nevada 89101, for Plaintiff-

Appellee.