Petition for Writ of Certiorari — Salvador Ortiz-Uresti, Petitioner v. United States
Supreme Court briefJul 18, 2018
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No.
IN THE SUPREME COURT OF THE UNITED STATES
SALVADOR ORTIZ-URESTI,
PETITIONER,
- VS. UNITED STATES OF AMERICA,
RESPONDENT.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
KEITH M. DONOGHUE
Assistant Federal Defender
Counsel of Record
JACOB SCHUMAN
Research and Writing Attorney
BRETT G. SWEITZER
Assistant Federal Defender
Chief of Appeals
LEIGH M. SKIPPER
Chief Federal Defender
FEDERAL COMMUNITY DEFENDER OFFICE
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Suite 540 West - Curtis Center
601 Walnut Street
Philadelphia, PA 19106
(215) 928-1100
Counsel for Petitioner
QUESTION PRESENTED
When deciding whether a conviction under Colorado’s primary drug statute qualifies as a
federal predicate for an increased sentence, should a court treat the statute as “indivisible,” as the
Tenth Circuit held and a divided 2-1 Fifth Circuit panel suggested, or “divisible,” as the Third
Circuit panel held?
i
TABLE OF CONTENTS
PAGE
Question Presented ......................................................................................................................... i
Table of Contents .......................................................................................................................... ii
Table of Authorities ..................................................................................................................... iii
Opinion Below ............................................................................................................................... 1
Jurisdiction ..................................................................................................................................... 1
Constitutional and Statutory Provisions Involved ......................................................................... 2
Statement of the Case ..................................................................................................................... 3
A.
Legal Background .................................................................................................. 3
B.
Factual and Procedural Background ...................................................................... 6
Reasons for Granting the Writ ....................................................................................................... 9
I.
The Courts of Appeals Are Divided as to the Divisibility of the Colorado Drug
Statute, with Broad Implications for the Divisibility of All Drug Statutes. .......... 9
II.
The Question Presented Has Nationwide Sentencing and Immigration
Consequences, and This Case Is a Sound Vehicle for Resolving It. ................... 12
III.
The Decision Below is Clearly Incorrect and Evinces the Vocal Opposition to the
Categorical Approach that Continues in the Circuits. ......................................... 15
Conclusion ................................................................................................................................... 18
Appendices:
Third Circuit’s Opinion ................................................................................................ Appendix A
Third Circuit’s Order Denying Petition for Rehearing ................................................ Appendix B
ii
TABLE OF AUTHORITIES
FEDERAL CASES
PAGE(s)
Alleyne v. United States,
570 U.S. 99 (2013) ................................................................................................................... 8
Apprendi v. New Jersey,
530 U.S. 466 (2000) ................................................................................................................. 6
Descamps v. United States,
570 U.S. 254 (2013) ................................................................................................. 4, 5, 16, 17
Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1 (2004) ................................................................................................................... 15
Flippo v. West Virginia,
528 U.S. 11 (1999) ................................................................................................................. 17
Gonzales v. Duenas-Alvarez,
549 U.S. 183 (2007) ................................................................................................................. 4
Hardy v. Cross,
565 U.S. 65 (2011) ................................................................................................................. 17
Lynch v. Arizona,
136 S. Ct. 1818 (2016) ............................................................................................................ 17
Mathis v. United States,
136 S. Ct. 2243 (2016) .................................................................................................... passim
Mincey v. Arizona,
437 U.S. 385 (1978) ............................................................................................................... 17
Moncrieffe v. Holder,
569 U.S. 184 (2013) ............................................................................................................. 4, 6
Moreno v. Attorney General of U.S.,
887 F.3d 160 n.3 (3d Cir. 2018) ............................................................................................. 16
Rosales-Mireles v. United States,
138 S. Ct. 1897 (2018) ............................................................................................................ 14
Spears v. United States,
555 U.S. 261 (2009) ............................................................................................................... 17
Taylor v. United States,
495 U.S. 575 (1990) ............................................................................................................. 4, 6
United States v. Caruthers,
458 F.3d 459 (6th Cir. 2006) .................................................................................................. 15
United States v. Chapman,
866 F.3d 129 (3d Cir. 2017) ................................................................................................... 16
iii
TABLE OF AUTHORITIES - continued
PAGE(s)
United States v. Davis,
875 F.3d 592 (11th Cir. 2017) ................................................................................................ 16
United States v. Galati,
844 F.3d 152 (3d Cir. 2016) ................................................................................................... 17
United States v. Gibson,
356 F.3d 761 (7th Cir. 2004) .................................................................................................. 15
United States v. Gomez,
706 F. App’x 172 (5th Cir. 2017) ................................................................................... 3, 9, 10
United States v. Greatwalker,
285 F.3d 727 (8th Cir. 2002) .................................................................................................. 15
United States v. Lewis,
660 F.3d 189 (3d Cir. 2011) ................................................................................................... 15
United States v. Lewis,
720 F. App’x 111 (3d Cir. 2018) ............................................................................................ 16
United States v. Martinez-Lopez,
864 F.3d 1034 (9th Cir. 2017) ................................................................................................ 11
United States v. McKibbon,
878 F.3d 967 (10th Cir. 2017) ........................................................................................ passim
United States v. Oliver,
No. 17-2747, 2018 WL 1547595 (3d Cir. Mar. 29, 2018) ..................................................... 16
United States v. Robinson,
844 F.3d 137 (3d Cir. 2016) ............................................................................................. 16-17
United States v. Westbrooks
858 F.3d 317 (5th Cir. 2017) .................................................................................................. 15
STATE CASES
PAGE(s)
People v. Abiodun,
111 P.3d 462 (Colo. 2005) .................................................................................... 10, 11, 12, 13
People v. Valenzuela,
216 P.3d 588 (Colo. 2009) ...................................................................................................... 10
FEDERAL STATUTES
PAGE(s)
8 U.S.C. § 1101(a)(43) ..................................................................................................... 2, 4, 7, 14
8 U.S.C. § 1227(a)(2)(A)(iii) ................................................................................................... 4, 14
8 U.S.C. § 1229b(a)(3) ................................................................................................................... 4
iv
TABLE OF AUTHORITIES - continued
PAGE(s)
8 U.S.C. § 1326 .......................................................................................................................... 2, 7
8 U.S.C. § 1326(b)(2) ...................................................................................................... 3, 4, 5, 14
18 U.S.C. § 924(c)(3)(a) .............................................................................................................. 17
18 U.S.C. § 3231 ............................................................................................................................ 1
28 U.S.C. § 1254(1) ....................................................................................................................... 1
28 U.S.C. § 1291 ............................................................................................................................ 1
28 U.S.C. § 2254(d) ..................................................................................................................... 17
PAGE(s)
STATE STATUTES
720 Ill. Comp. Stat. Ann. 570/401 ......................................................................................... 11, 13
Colo. Rev. Stat. Ann. § 18-18-405 ....................................................................................... passim
Colo. Rev. Stat. Ann. § 18-18-411 ............................................................................................... 12
Colo. Rev. Stat. Ann. § 18-18-412.5 ............................................................................................ 12
Colo. Rev. Stat. Ann. § 18-18-412.7 ............................................................................................ 12
Colo. Rev. Stat. Ann. § 18-18-415 ............................................................................................... 12
Colo. Rev. Stat. Ann. § 18-18-422 ............................................................................................... 12
Colo. Rev. Stat. Ann. § 18-18-423 ............................................................................................... 12
Colo. Rev. Stat. Ann. §§ 18-18-428-430 ..................................................................................... 12
Fla. Sta. Ann. § 893.13 .......................................................................................................... 11, 13
Tex. Health & Safety Code Ann. § 481.112 .......................................................................... 11, 13
PAGE(s)
SENTENCING GUIDELINES
U.S.S.G. § 2L1.2(b)(1)(A)(i) ....................................................................................................... 10
U.S.S.G. § 4B1.1(a) ..................................................................................................................... 14
v
No. ___________
IN THE SUPREME COURT OF THE UNITED STATES
SALVADOR ORTIZ-URESTI,
PETITIONER
– VS. –
UNITED STATES OF AMERICA,
RESPONDENT.
PETITION FOR A WRIT OF CERTIORARI
Petitioner Salvador Ortiz-Uresti respectfully requests that a writ of certiorari issue to
review the judgment of the United States Court of Appeals for the Third Circuit entered in this
case on January 31, 2018.
OPINION BELOW
The opinion of the court of appeals affirming the district court’s judgment is reported at
721 F. App’x 145 (3d Cir. 2018), and is attached as Appendix A. The order denying rehearing is
attached as Appendix B.
JURISDICTION
The district court had jurisdiction over this federal criminal case pursuant to 18 U.S.C.
§ 3231. The court of appeals had jurisdiction pursuant to 28 U.S.C. § 1291. This Court has
jurisdiction pursuant to 28 U.S.C. § 1254(1).
1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury…
Section 1326 of Title 8, United States Code, provides:
(a) In general
Subject to subsection (b), any alien who-(1) has been denied admission, excluded, deported, or removed … and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States …
shall be fined under Title 18, or imprisoned not more than 2 years, or both.
(b) Criminal penalties for reentry of certain removed aliens
Notwithstanding subsection (a), in the case of any alien described in such subsection…
(2) whose removal was subsequent to a conviction for commission of an aggravated
felony, such alien shall be fined under such title, imprisoned not more than 20 years, or
both. …
Section 1101(a) of Title 8, United States Code, provides:
(43) The term “aggravated felony” means …
(B) illicit trafficking in a controlled substance (as defined in section 802 of Title 21),
including a drug trafficking crime (as defined in section 924(c) of Title 18);
Section 18-18-405(1)(a) of the 1999 Colorado Criminal Code provides:
[I]t is unlawful for any person knowingly to manufacture, dispense, sell, distribute,
possess, or to possess with intent to manufacture, dispense, sell, or distribute a controlled
substance; or induce, attempt to induce, or conspire with one or more other persons, to
manufacture, dispense, sell, distribute, possess, or possess with intent to manufacture,
dispense, sell, or distribute a controlled substance.
2
STATEMENT OF THE CASE
This case reflects a circuit split over the treatment of Colorado’s primary drug statute as a
basis for increased punishment and deportation under federal law, as well as a broader
disagreement about how to determine the divisibility of any drug statute for purposes of these
severe penalties. When sentencing Mr. Ortiz-Uresti for illegal reentry, the district court
increased his statutory maximum from 2 to 20 years’ imprisonment because it found that his
prior drug conviction in Colorado qualified as an “aggravated felony.” See 8 U.S.C.
§ 1326(b)(2). It then sentenced him to 48 months’ imprisonment.
The Third Circuit affirmed. Although it acknowledged that the Colorado statute covered
more conduct than the federal definition of an aggravated felony, it found that the statute was
“divisible” and that Mr. Ortiz-Uresti was convicted of a qualifying predicate. Pet. App. A6. The
panel considered and rejected the analysis of the Tenth Circuit, where Colorado is located, which
had held that the same statute was “indivisible” and that it was plain error to treat it otherwise.
United States v. McKibbon, 878 F.3d 967 (10th Cir. 2017). A Fifth Circuit panel fragmented on
the same question, with the panel majority assuming that the Colorado drug statute was
indivisible but calling the answer “unclear,” and the dissent saying it was “obvious[ly]”
indivisible. United States v. Gomez, 706 F. App’x 172 (5th Cir. 2017) (unpublished); id. at 177
(Graves, J., dissenting). Because this circuit split has significant criminal and immigration
consequences for people across the country, this Court should step in to resolve it.
A.
Legal Background
The statutory maximum sentence for illegally reentering the United States after
deportation increases if the defendant has a prior conviction for an “aggravated felony.” 18
3
U.S.C. § 1326(b)(2). The default maximum sentence is 2 years’ imprisonment, but a prior
conviction for an aggravated felony increases the maximum to 20 years’ imprisonment. Id.
The definition of an “aggravated felony” comes from the Immigration and Nationality
Act (INA), and therefore has grave consequences not only for people charged with illegal
reentry, but also for immigration law more broadly. See, e.g., 8 U.S.C. § 1227(a)(2)(A)(iii)
(aggravated felony conviction is grounds to deport legal immigrant); 8 U.S.C. § 1229b(a)(3)
(aggravated felony conviction bars discretionary cancellation of removal).
The INA includes a list of offenses that qualify as aggravated felonies, such as murder,
rape, “illicit trafficking in a controlled substance … including a drug trafficking crime (as
defined in section 924(c) of Title 18),” 8 U.S.C. § 1101(a)(43), and many others. But because
states and the federal government often define these offenses differently, courts must sometimes
inquire as to the scope of a state offense, as a matter of law, to decide whether a prior conviction
qualifies as an aggravated felony.
This Court uses a “categorical approach” to decide whether a prior conviction qualifies as
an aggravated felony. Moncrieffe v. Holder, 569 U.S. 184, 189 (2013). This approach asks
“whether the state statute defining the crime of conviction categorically fits within the generic
federal definition of the corresponding aggravated felony.” Id. at 189-91 (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 185-87 (2007)) (internal quotation marks omitted). If the statute
“sweeps more broadly” than the generic definition of an aggravated felony, then a conviction
under the statute does not qualify as one, “even if the defendant actually committed the offense
in its generic form.” Descamps v. United States, 570 U.S. 254, 261 (2013) (citing Taylor v.
United States, 495 U.S. 575, 599-600 (1990)). In other words, the categorical approach focuses
only on “what crime, with what elements, the defendant was convicted of,” not how the
4
defendant actually committed the offense. Mathis v. United States, 136 S. Ct. 2243, 2252
(2016).
When a statute uses disjunctive language to describe the offense, the first step in applying
the categorical approach is to determine whether the statute is “indivisible” or “divisible.” See
Descamps, 570 U.S. at 257-58. A statute is “indivisible” if the disjunctive language lists various
“factual means” of committing “a single element of a single crime.” Mathis, 136 S. Ct. at 2249
(citing Descamps, 570 U.S. at 268-69). A statute is “divisible,” by contrast, if the disjunctive
language lists “alternative elements” that define distinct and separate crimes. See id.
If the statute is indivisible, then the Court applies the ordinary categorical approach,
described above. But if the statute is divisible, then the Court applies a “modified” categorical
approach, which permits resort to the record of the defendant’s prior conviction to identify the
particular element from the disjunctive list that formed the basis for his conviction. Id. The
Court then asks whether that element fits within the generic definition of the corresponding
aggravated felony.
The key to distinguishing elements from means, and therefore indivisible from divisible
statutes, is asking what the jury must find unanimously to convict under the statute. See
Descamps, 133 S. Ct. at 2288. If the jury must unanimously agree on an item from the
disjunctive list, then it is an element and the statute is divisible. But if the jury need not
unanimously agree on the item, then it is just one means of committing the offense and the
statute is indivisible. See id. Any ambiguity is resolved in favor of indivisibility. See Mathis,
136 S. Ct. at 2257.
This admittedly intricate analysis is important for three reasons. See id. at 2252-53.
First, the text of § 1326(b)(2) requires a categorical approach, since it says that the defendant
5
must have a prior “conviction” for an aggravated felony, not that he previously “committed”
such a crime. See, e.g., Moncrieffe, 569 U.S. at 191; Taylor, 495 U.S. at 600-01. Second, the
categorical approach protects defendants’ Sixth Amendment rights, since “only a jury, not a
judge, may find facts that increase a maximum penalty,” and thus “a judge cannot go beyond
identifying the crime of conviction to explore the manner in which the defendant committed that
offense.” Mathis, 136 S. Ct. at 2256 (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).
Finally, this approach “avoids unfairness to defendants,” who “may have no incentive to contest”
facts that were not relevant to their convictions at the time of trial, such that assorted portions of
the record may (especially when considered in an unfamiliar jurisdiction years later) suggest
there was proof of something that was actually a point of universal neglect. Id. at 2253.
B.
Factual and Procedural Background
Mr. Ortiz-Uresti came to the United States from Mexico without permission in 1997.
(C.A. App. 38). In 1999, he was arrested in Colorado and pled guilty to a drug offense under
Colo. Rev. Stat. Ann. § 18-18-405. (C.A. App. 38, 40). He received a four-year sentence,
served approximately one year in prison, and was deported back to Mexico. (C.A. App. 40-41).
At the time of his prior conviction, the Colorado drug statute used disjunctive language to
proscribe a long list of acts satisfying the offense’s basic conduct element, making it a crime to
knowingly:
manufacture, dispense, sell, distribute, possess, or to possess with
intent to manufacture, dispense, sell, or distribute a controlled
substance; or induce, attempt to induce, or conspire with one or
more other persons, to manufacture, dispense, sell, distribute,
possess, or possess with intent to manufacture, dispense, sell, or
distribute a controlled substance.
6
Colo. Rev. Stat. Ann. § 18-18-405(1)(a) (West 1999). The statute remains essentially the same
today, though notably mere “possession” has been removed from the list of acts provable to
satisfy the element. See Colo. Rev. Stat. Ann. § 18-18-405 (West).
Sometime after he was deported, Mr. Ortiz-Uresti returned to the United States without
permission. In 2015, he was arrested in Pennsylvania and charged with illegal reentry after
removal, in violation of 8 U.S.C. § 1326. (C.A. App. 14, 32). He pled guilty. (C.A. App. 3435).
The government argued, (C.A. App. 32, 41), that Mr. Ortiz-Uresti was subject to an
increased penalty under § 1326(b)(2) because his prior drug conviction in Colorado qualified as
the aggravated felony of “drug trafficking.” See 8 U.S.C. § 1101(a)(43)(B) (“aggravated felony”
includes “illicit trafficking in a controlled substance … including a drug trafficking crime”). The
district court agreed and increased the maximum sentence from 2 to 20 years’ imprisonment.
(C.A. App. 22-24). It then sentenced him to 48 months’ imprisonment. (C.A. App. 66).
Mr. Ortiz-Uresti appealed, arguing that his prior conviction did not qualify as an
aggravated felony. First, he noted that the Colorado drug statute’s conduct element – the list of
acts including “manufacture,” “dispense,” and “possess” — was indivisible, as the Tenth Circuit
squarely held in United States v. McKibbon, 878 F.3d 967, 974-76 (10th Cir. 2017), reversing the
district court’s contrary conclusion as plain error. Second, he contended that the statute covered
more conduct than the federal definition of a drug-trafficking predicate, in that it also reached
mere possession, the solicitation or inducement of drug activity, the gifting of drugs without
remuneration, and non-bona fide offers to sell drugs, such as offers made in a ploy to rob the
would-be buyer. He therefore claimed that the district court should not have sentenced him
above the two-year maximum.
7
A panel of the Third Circuit Court of Appeals rejected his argument and affirmed the 48month sentence in an unpublished opinion. Pet. App. A. The panel acknowledged that the
Colorado statute may have swept broader than the federal definition of a drug trafficking crime.
See Pet. App. A7 n.2 (“one means for violating the statute may not be a ‘drug trafficking
crime’”). But it reasoned that the statute was divisible because “the type and amount of drugs
can increase the punishment.” Pet. App. A6; see Colo. Rev. Stat. Ann. § 18-18-405(2). The
court proceeded to apply the modified categorical approach and, relying on the state court
charging instrument, concluded that Mr. Ortiz-Uresti was convicted of possession with intent to
distribute a quantity of cocaine, conduct falling within the scope of the federal definition of a
drug trafficking crime. See Pet. App. A7. Recognizing that the Tenth Circuit had found the
same statute indivisible, the Third Circuit panel said that its decision in McKibbon had
“overlooked the teachings of Alleyne [v. United States, 570 U.S. 99 (2013)], Descamps, and
Mathis, which dictate that any fact that impacts a statutory sentencing range is an element of the
offense. Here, because the penalty for violating the statute varies depending on the type and
quantity of drug involved in the offense, the statute is divisible.” Pet. App. A7 n.2. The court
denied a petition for rehearing. This timely petition for certiorari follows.
8
REASONS FOR GRANTING THE WRIT
The divisibility of Colorado’s primary drug statute has bedeviled the circuit courts. Their
divergent conclusions on this matter not only affect the tens of thousands of people who have
been convicted under the statute, but also the interpretation of other drug statutes across the
country. The Court should therefore grant this petition to resolve the circuit split and provide
necessary guidance on how to determine the divisibility of a drug statute, a question with
significant sentencing and immigration consequences.
In concluding that the Colorado statute was divisible, the Third Circuit panel infringed
the Sixth Amendment right to a jury trial, failed to apply this Court’s recent decisions in Mathis
and Descamps, and created a remarkable split with the Tenth Circuit on a matter of Colorado
law. Unfortunately, the panel’s flawed analysis is just one instance of ongoing and outspoken
opposition to the categorical approach. This Court has repeatedly had to correct the courts of
appeals for failing to correctly apply this doctrine, and it should do so again in this case.
I.
The Courts of Appeals Are Divided as to the Divisibility of the Colorado Drug
Statute, with Broad Implications for the Divisibility of All Drug Statutes.
The Courts of Appeals are divided and confused about the divisibility of the Colorado
drug statute. The Third Circuit panel said that the statute was divisible. Pet. App. A6. The
Tenth Circuit held that it was indivisible, and that it was plain error to conclude otherwise.
McKibbon, 878 F.3d at 974-76. A Fifth Circuit panel split on the question, with the majority
assuming the statute was indivisible but saying the answer was “unclear,” and the dissent finding
it “obvious[ly]” indivisible. United States v. Gomez, 706 F. App’x 172, 177 (5th Cir. 2017)
(unpublished); id. at 177 (Graves, J., dissenting). These disparate readings of the same Colorado
statute reflect a more fundamental disagreement about how to determine the divisibility of any
drug statute.
9
In contrast to the Third Circuit panel, the Tenth Circuit held in McKibbon that the
Colorado drug statute was indivisible. Citing this Court’s decision in Mathis, the Tenth Circuit
explained that it was an “easy” case because “a state court decision definitely answers the
question.” McKibbon, 878 F.3d at 974 (quoting Mathis, 136 S. Ct. at 2256). In People v.
Abiodun, 111 P.3d 462, 486 (Colo. 2005), the Colorado Supreme Court had held that § 18-18405(1)(a) “defines a single offense,” and the Tenth Circuit therefore concluded that the statute
was “indivisible … setting forth one offense which can be committed by a variety of means.”
McKibbon, 878 F.3d at 974-75. Applying the categorical approach, the Tenth Circuit found that
because the statute covered non-bona fide offers to sell drugs, it did not qualify as a “controlled
substance offense.” Id. at 976. The district court had plainly erred by finding otherwise. Id.
When the same Colorado statute came before a panel of the Fifth Circuit in Gomez, it
produced a divided opinion as to its divisibility. There, the defendant argued that the district
court had plainly erred by treating his Colorado conviction as a “drug trafficking offense” within
the meaning of Sentencing Guideline § 2L1.2(b)(1)(A)(i). Gomez, 706 F. App’x at 173. The
majority disagreed. While acknowledging Abiodun’s holding that the statute defined a “single
crime,” the majority also noted the later decision in People v. Valenzuela, 216 P.3d 588, 592
(Colo. 2009), which described the statute as covering “three distinct categories of actions.”
Gomez, 706 F. App’x at 176. The majority concluded that while “Valenzuela did not expressly
overrule Abiodun … it arguably undermined its holding that [the statute] constitutes a single,
indivisible crime,” making it “unclear whether the subsections of section (1)(a) of the Colorado
statute were elements or means.” Id. at 177. The dissent, by contrast, said that the statute was
“obvious[ly]” indivisible because “Valenzuela did not overrule Abiodun.” Id. at 177 (Graves, J.,
dissenting).
10
This conflict among the Third, Fifth, and Tenth Circuits as to the divisibility of the
Colorado statute reflects a broader disagreement about how to analyze the divisibility of drug
statutes in general. Like several states, Colorado has enacted a drug statute that prohibits a broad
range of conduct and then varies the punishment based on the type and quantity of drugs
involved. See Colo. Rev. Stat. Ann. § 18-18-405(2); see also, e.g., Fla. Stat. Ann. § 893.13
(West); 720 Ill. Comp. Stat. Ann. 570/401 (West); Tex. Health & Safety Code Ann. § 481.112
(West). Indeed, 48 states have based their drug laws on the Uniform Controlled Substances Act,
which follows this pattern. See Uniform Controlled Substances Act 401(a)-(g); Abiodun, 111
P.3d at 466 n.3 (“Forty-eight states (including Colorado) have now adopted some version of the
Uniform Controlled Substances Act.”).
As the Tenth Circuit held in McKibbon, courts assessing this kind of drug statute must
distinguish between its treatment of the defendant’s conduct and its treatment of drug type and
quantity. If the statute is indivisible with respect to conduct, then the question of whether it
reaches more conduct than the federal definition of a predicate crime should be answered
through the ordinary categorical approach. The Ninth Circuit has adopted similar logic,
assessing the divisibility of a California drug statute first “with regard to its actus reus
requirement” and then “with regard to its controlled substance requirement.” United States v.
Martinez-Lopez, 864 F.3d 1034, 1039-42 (9th Cir. 2017).
In the present case, by contrast, the Third Circuit panel presumed that the divisibility of
one element (drug type/quantity) permitted recourse to the record of conviction to identify the
means by which a second, indivisible element (the actus reus of the offense) was supposedly
established. See Pet. App. A6-A7 & n.2. The court identified no authority for this innovation.
11
Because many states have adopted drug statutes similar to Colorado’s, the question in this
case has nationwide import. Given the significant role prior drug convictions play in both
criminal and immigration law, the Court should step in to answer the question and resolve the
circuit split about the divisibility of Colorado’s drug statute.
II.
The Question Presented Has Nationwide Sentencing and Immigration
Consequences, and This Case Is a Sound Vehicle for Resolving It.
Although it may seem arcane, the divisibility of Colorado’s primary drug statute has
grave consequences not only for tens of thousands of people with drug convictions in Colorado,
but also for anyone who has ever been convicted of a drug offense. The Third Circuit panel’s
flawed decision, moreover, presents a ready vehicle for review, because it squarely presents the
question and resulted in an illegal sentence above the 2-year statutory maximum.
Colorado is one of the country’s largest states. The statute at issue, Colo. Rev. Stat. Ann.
§ 18-18-405, is its primary prohibition on drug offenses, covering nearly all illegal conduct
related to controlled substances. See Abiodun, 111 P.3d at 466 (§ 18-18-405 “join[s] in a single
proscription an entire range of conduct potentially facilitating or contributing to illicit drug
traffic”). 1 In 2001 alone, prosecutors filed over 10,000 felony drug charges in Colorado courts,
about a quarter of all felony charges in the state. See Colorado Judicial Branch Annual Report at
23, 63 (2001), available at https://www.courts.state.co.us/userfiles/file/Administration
/Planning_and_Analysis/Annual_Statistical_Reports/2001/2001%20annual%20report.pdf. By
1
A few other Colorado statutes define additional drug offenses, though some of the conduct may
be within the scope of § 18-18-405. See, e.g., Colo. Rev. Stat. Ann. § 18-18-411 (property use in
relation to drug crimes); Colo. Rev. Stat. Ann. § 18-18-412.5 (possession of nonprescription
drugs with intent to manufacture a controlled substance); Colo. Rev. Stat. Ann. § 18-18-412.7
(distribution of materials to manufacture a controlled substance); Colo. Rev. Stat. Ann. § 18-18415 (fraud or deceit in relation to drugs); Colo. Rev. Stat. Ann. § 18-18-422 (imitation controlled
substances); Colo. Rev. Stat. Ann. § 18-18-423 (counterfeit controlled substances); Colo. Rev.
Stat. Ann. §§ 18-18-428-430 (drug paraphernalia).
12
2017, that number climbed to over 15,000 felony drug charges, nearly a third of all felonies. See
Colorado Judicial Branch Annual Statistical Report at 15, 35 (2017), available at https://w
ww.courts.state.co.us/userfiles/file/Administration/Planning_and_Analysis/Annual_Statistica
l_Reports/2017/FY2017ANNUALREPORT.pdf. The divisibility of the Colorado drug statute,
therefore, has significant consequences for the many thousands of people who have been
convicted of drug offenses in that state.
The divisibility of the Colorado drug statute has broader import as well. The statute is “a
version of the Uniform Controlled Substances Act,” which 48 states have now adopted.
Abiodun, 111 P.3d at 466 & n.3. As a result, many other states’ drug statutes follow the same
model as Colorado by prohibiting a broad range of drug-related conduct and then varying the
penalty depending on the quantity and type of drugs involved. See, e.g., Fla. Stat. Ann. § 893.13
(West); 720 Ill. Comp. Stat. Ann. 570/401 (West); Tex. Health & Safety Code Ann. § 481.112
(West). Under the Third Circuit’s theory, all such statutes permit recourse to the modified
categorical approach to try to determine the means by which any element was established
because “the type and amount of drugs can increase the punishment.” Pet. App. A6. But on the
approach properly directed by this Court’s precedents and applied by the Tenth Circuit, resort to
the modified categorical approach is not permissible when these statutes’ basic actus reus
element “set[s] forth one offense which can be committed by a variety of means.” McKibbon,
878 F.3d at 974-75. These conflicting approaches to analyzing prior drug convictions cannot
stand.
Drug offenses are of course a significant focus of the criminal justice system, as the
Colorado data illustrates. And a drug statute’s divisibility frequently determines whether people
are subject to significant recidivist penalties or deportation, because it is the first step in deciding
13
if a prior conviction qualifies as an “aggravated felony,” a “controlled substance offense,” or
another federal predicate. See, e.g., 8 U.S.C. §§ 1101(a)(43)(B) (“aggravated felony” includes
“illicit trafficking in a controlled substance … including a drug trafficking crime”); 8 U.S.C.
§ 1227(a)(2)(A)(iii) (aggravated felony conviction is grounds to deport legal immigrant);
8 U.S.C. § 1326(b)(2) (aggravated felony conviction increases statutory maximum from 2 to 20
years’ imprisonment); U.S.S.G. § 4B1.1(a) (multiple “controlled substance offense” convictions
trigger federal Sentencing Guidelines’ most severe enhancement). It is therefore critical for the
Court to resolve the conflict between the Third, Fifth, and Tenth Circuits, and to make clear how
to properly determine the divisibility of this kind of criminal statute.
Finally, the Third Circuit’s decision presents a sound vehicle for addressing this issue.
The panel acknowledged that the Colorado statute’s basic conduct element (at least until it was
amended to no longer reach simple possession) swept more broadly than a generic drug
trafficking offense. See Pet. App. A7 n.2 (“one means for violating the statute may not be a
‘drug trafficking crime’”). If the panel had properly respected the conduct element’s
indivisibility, it would have had to conclude that Mr. Ortiz-Uresti’s prior conviction did not
trigger the increased statutory maximum. 2
In candor, the defense failed to preserve the challenge in the district court and indeed
agreed that the statutory maximum was 20 years due to a qualifying aggravated felony. That
lapse was unfortunate, though it also reflects how difficult it can be to reconstruct all of “the
realities at play in sentencing proceedings.” Rosales-Mireles v. United States, 138 S. Ct. 1897,
1910 (2018). Thankfully, the question presented remains dispositive of Mr. Ortiz-Uresti’s
2
Mr. Ortiz-Uresti also argued that his Colorado conviction did not qualify as a “felony”
triggering a 10-year statutory maximum sentence under § 1326(b)(1). Because the Court of
Appeals found that the conviction qualified as an aggravated felony, it did not reach this
argument.
14
appeal, because a defendant cannot waive the right to be sentenced to no greater punishment than
authorized by statute. See United States v. Caruthers, 458 F.3d 459, 471 (6th Cir. 2006)
(collecting cases). In the Third Circuit and others, moreover, a sentence exceeding the statutory
maximum is plain error subject to automatic reversal. See United States v. Lewis, 660 F.3d 189,
192 (3d Cir. 2011); accord United States v. Westbrooks, 858 F.3d 317, 327 (5th Cir. 2017),
vacated on other ground, 138 S. Ct. 1323 (2018); United States v. Gibson, 356 F.3d 761, 766
(7th Cir. 2004); United States v. Greatwalker, 285 F.3d 727, 730 (8th Cir. 2002). That rule
applies here, as the panel’s opinion silently confirms. The divisibility of Colorado’s primary
drug statute therefore remains outcome determinative in this case, presenting ripe occasion for
this Court’s resolution of the question presented.
III.
The Decision Below is Clearly Incorrect and Evinces the Vocal Opposition to the
Categorical Approach that Continues in the Circuits.
The Third Circuit’s conclusion that the Colorado drug statute is divisible clearly
contradicts this Court’s controlling decisions in Mathis and Descamps. The panel’s
disagreement with the Tenth Circuit’s analysis is particularly remarkable because the Tenth
Circuit includes Colorado, and thus considered this question with the benefit of a specialized
familiarity with the pertinent body of state law. See Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1, 16 (2004) (“Our custom on questions of state law ordinarily is to defer to the
interpretation of the Court of Appeals for the Circuit in which the State is located.”).
Unfortunately, the flawed analysis is symptomatic of an openly stated hostility toward the
categorical approach, meriting attention for this additional reason.
In cases like this one, neglect of the categorical approach threatens the constitutional
deprivation it was adopted to avoid: punishment exceeding the statutory maximum, in violation
of the Sixth Amendment right to have “only a jury, and not a judge, … find facts that increase a
15
maximum sentence.” Mathis, 136 S. Ct. at 2252. And as this Court has repeatedly explained,
the categorical approach is also essential to fairness in that defendants may have no incentive to
dispute non-elemental facts, so that records wind up bearing stray suggestions that do not
represent a correct statement of the defendant’s actual conduct. Id. at 2253; Descamps, 570 U.S.
at 270-71.
Despite the uncertainties of any aged record, especially in an unfamiliar jurisdiction,
some jurists continue to insist that judicial findings based on various sources are so infallible that
to limit inquiry to elements (and leave facts to juries) requires going “down the rabbit hole … to
a realm where we must close our eyes as judges to what we know as men and women.” United
States v. Davis, 875 F.3d 592, 595 (11th Cir. 2017). That view has adherents on the Third
Circuit, where judges have repeatedly expressed “dismay at having to employ the categorical
approach,” due to its “disregard of the actual facts of a conviction.” Moreno v. Attorney General
of U.S., 887 F.3d 160, 163 n.3 (3d Cir. 2018). “[W]e must … ‘ignore facts already known and
proceed with eyes shut,’” the court has stated, “requir[ing] us to undertake an academic thought
experiment that bears no relation to the factual premise for the petitioner’s underlying
conviction.” Id. (citation omitted). Indeed, the Third Circuit’s skepticism is profound enough
that it has held the categorical approach not to be commanded by statutory language defining a
predicate as an offense having “as an element” the use or threat of force. 3 See United States v.
3
In more colorful language, individual Third Circuit judges have decried the categorical
approach and stated their desire to constrain it. “Were I a poet, I would opine that the
‘categorical approach’ is an albatross hung round my neck. … If the albatross around my neck
cannot be slayed, I will at least have the noose around its neck tightened.” United States v.
Lewis, 720 F. App’x 111, 118-20 (3d Cir. 2018) (Roth, J., concurring). “I … write separately to
express dismay at … the kudzu quality of the categorical approach, which seems to be always
enlarging its territory. … Some work is needed to bring the categorical approach back in line
with its original goal.” United States v. Chapman, 866 F.3d 129, 136-37 (3d Cir. 2017) (Jordan,
16
Robinson, 844 F.3d 137, 141 (3d Cir. 2016) (uniquely construing 18 U.S.C. § 924(c)(3)(a)’s
definition of “crime of violence” supporting mandatory minimum for certain firearm offenses);
see also United States v. Galati, 844 F.3d 152 (3d Cir. 2016).
Over the past several years, this Court has repeatedly reminded the courts of appeal of
their duty to apply the categorical approach correctly and faithfully. See, e.g., Mathis, 136 S. Ct.
at 2251-52 (“Th[is] simple point became a mantra in our subsequent ACCA decisions. At the
risk of repetition (perhaps downright tedium), here are some examples.”); Descamps, 570 U.S. at
265 (“The Court of Appeals took a different view. Dismissing everything we have said on the
subject as ‘lack[ing] conclusive weight’…”). Here, opposition to the categorical approach calls
for an exercise of jurisdiction to ensure uniform application of established precedent. Indeed,
given the nature of the question presented, the Court may wish simply to reverse the judgment of
the panel and remand for further proceedings to reaffirm the divisibility analysis set out in
Mathis and Descamps. See, e.g., Lynch v. Arizona, 136 S. Ct. 1818, 1819 (2016) (per curiam)
(granting, reversing, and remanding where state court’s “conclusion conflict[ed] with this
Court’s precedents [in] … Simmons … Ramdass, Shafer, and Kelly”); Hardy v. Cross, 565 U.S.
65, 72 (2011) (per curiam) (granting, reversing, and remanding where court of appeals failed to
heed “the deferential standard of review set out in 28 U.S.C. § 2254(d)”); Spears v. United
States, 555 U.S. 261, 264 (2009) (per curiam) (granting, reversing, and remanding so as to
reiterate and clarify what “was indeed the point of Kimbrough: a recognition of district courts’
authority to vary from the crack cocaine Guidelines based on policy disagreement with them”);
Flippo v. West Virginia, 528 U.S. 11, 12 (1999) (per curiam) (granting, reversing, and remanding
where “the rule applied directly conflict[ed] with Mincey v. Arizona, 437 U.S. 385 (1978)”).
J., concurring); see also United States v. Oliver, No. 17-2747, 2018 WL 1547595, at *2 n.3 (3d
Cir. Mar. 29, 2018).
17
CONCLUSION
For the foregoing reasons, Mr. Ortiz-Uresti respectfully requests that the Court grant the
petition for a writ of certiorari.
Respectfully submitted,
/s/ Keith M. Donoghue
KEITH M. DONOGHUE
Assistant Federal Defender
Counsel of Record
JACOB SCHUMAN
Research and Writing Attorney
BRETT G. SWEITZER
Assistant Federal Defender
Chief of Appeals
LEIGH M. SKIPPER
Chief Federal Defender
Federal Community Defender Office
for the Eastern District of Pennsylvania
Suite 540 West, Curtis Center
601 Walnut Street
Philadelphia, PA 19106
(215) 928-1100
18
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.