United States v. Daladier Murillo-Alvarado , 876 F.3d 1022 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50354
Plaintiff-Appellee,
D.C. No.
v. 5:14-cr-00014-
VAP-1
DALADIER MURILLO-ALVARADO,
AKA Domingo Arredondo, AKA
Daladier Murillo, AKA Daladier OPINION
Alvarado Murillo,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief District Judge, Presiding
Submitted July 8, 2016*
Pasadena, California
Filed December 4, 2017
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. MURILLO-ALVARADO
Before: Richard R. Clifton, Michelle T. Friedland, Circuit
Judges, and Edward M. Chen,** District Judge.
Opinion by Judge Clifton
SUMMARY***
Criminal Law
Affirming a sentence, the panel held that section 11351 of
the California Health and Safety Code (possession or
purchase for sale of designated controlled substance) is
divisible –as discussed in Mathis v. United States, 136 S. Ct.
2243 (2016) –as to its controlled substance requirement, such
that a conviction under that statute may, applying the
modified categorical approach, be held to be a drug
trafficking offense under the United States Sentencing
Guidelines.
Applying the modified categorical approach, the panel
held that the government established, through judicially
noticeable documents, that the defendant’s § 11351
conviction was for a substance, cocaine, that was a controlled
substance under federal law, and that the district court
therefore properly applied a 16-level enhancement pursuant
to USSG § 2L1.2(b)(1)(A) (2014) (amended 2016).
**
The Honorable Edward M. Chen, United States District Judge for
the Northern District of California, sitting by designation.
***
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. MURILLO-ALVARADO 3
COUNSEL
James H. Locklin, Deputy Federal Public Defender; Hilary L.
Potashner, Federal Public Defender; Office of the Federal
Public Defender, Los Angeles, California.
Abigail W. Evans, Assistant United States Attorney;
Lawrence S. Middleton, Chief, Criminal Division; United
States Attorney’s Office, Riverside, California; for Plaintiff-
Appellee.
OPINION
CLIFTON, Circuit Judge:
The primary question presented by this appeal is whether
section 11351 of the California Health and Safety Code
(“Possession or purchase for sale of designated controlled
substances”) is a divisible statute, as discussed in Mathis v.
United States, 136 S. Ct. 2243, 2249 (2016), such that a
conviction under that statute may be held to be a drug
trafficking offense under the United States Sentencing
Guidelines (“USSG” or “Sentencing Guidelines”), applying
the modified categorical approach. We previously held that
section 11351 is divisible with regard to its controlled
substance requirement. United States v. Torre-Jimenez,
771 F.3d 1163, 1167 (9th Cir. 2014). In Guevara v. United
States, 136 S. Ct. 2542 (2016), however, the Supreme Court
vacated and remanded a decision by this court, relying on that
precedent, that section 11351 is divisible, directing us to
reconsider the issue in light of Mathis.
4 UNITED STATES V. MURILLO-ALVARADO
In United States v. Martinez-Lopez, 864 F.3d 1034 (9th
Cir. 2017) (en banc), we held that section 11352 of the
California Health and Safety Code (“Transportation, sale,
giving away, etc. of designated controlled substances”), a
very similar statute, is divisible under Mathis. Id. at 1039–41.
Based on the same reasoning we applied in that decision, we
conclude that section 11351 is similarly divisible. Because
the government established that Murillo-Alvarado was
previously convicted of possessing cocaine for sale, which
qualifies as a drug trafficking offense under the Sentencing
Guidelines, we affirm.
I. Background
In 2001, Defendant-Appellant Daladier Murillo-Alvarado
was convicted of a violation of section 11351. Specifically,
in count 1 of a criminal information, he was charged with
“violation of Section 11351 of the [California] Health and
Safety Code (POSSESSION FOR SALE OF A
CONTROLLED SUBSTANCE), a FELONY.” Count 1
specified that “[o]n or about May 29, 2001, [Murillo-
Alvarado] . . . did willfully and unlawfully possess for sale
and purchase for sale a controlled substance, to wit,
COCAINE.” Murillo-Alvarado pled guilty to count 1.
Murillo-Alvarado was later deported but then returned to
the United States without authorization. In 2013, immigration
authorities found Murillo-Alvarado in California. He was
indicted on a charge of illegal reentry in violation of 8 U.S.C.
§ 1326. The indictment also charged that he had been
previously convicted for the violation of section 11351
described above. Murillo-Alvarado pled guilty to the charge
of illegal reentry, without a plea agreement.
UNITED STATES V. MURILLO-ALVARADO 5
The district court sentenced Murillo-Alvarado to
imprisonment for 60 months. In determining the sentence, the
district court concluded, over objection by Murillo-Alvarado,
that his prior conviction under section 11351 was for a “drug
trafficking offense,” which increased his offense level by
16 levels pursuant to U.S. Sentencing Guidelines Manual
§ 2L1.2(b)(1)(A) (U.S. Sentencing Comm’n 2014) (amended
2016).
Murillo-Alvarado timely appealed.
II. Discussion
At the time that Murillo-Alvarado was sentenced, the
Sentencing Guidelines provided for sentence enhancements
when a defendant had previously been convicted of various
predicate offenses under federal, state, or local law, including
a “drug trafficking offense.” See, e.g., USSG
§ 2L1.2(b)(1)(A). The Sentencing Guidelines define a “drug
trafficking offense” to be:
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, Application Notes (1)(B)(iv).
Section 11351 specifies punishment for “every person
who possesses for sale or purchases for purposes of sale . . .
6 UNITED STATES V. MURILLO-ALVARADO
any controlled substance” specified in a list of cross-
referenced code provisions. Cal. Health & Safety Code
§ 11351.1 To be covered under the section, the involved
substance must be one of the substances on one of the cross-
referenced lists.
We apply a three-step analysis to determine whether a
prior conviction under state law qualifies as a predicate drug
trafficking offense under the Sentencing Guidelines. First, we
ask whether the state law is a categorical match with a federal
drug trafficking offense. See Taylor v. United States, 495 U.S.
575, 599–600 (1990). At this step, we look only to the
“statutory definitions” of the corresponding offenses. Id. at
600. If a state law “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. United
States v. Hernandez, 769 F.3d 1059, 1062 (9th Cir. 2014). In
that scenario, a conviction under state law automatically
qualifies as a predicate drug trafficking offense, ending our
analysis. See Taylor, 495 U.S. at 599.
1
Section 11351 reads, in full:
Except as otherwise provided in this division, every
person who possesses for sale or purchases for purposes
of sale (1) any controlled substance specified in
subdivision (b), (c), or (e) of Section 11054, specified
in paragraph (14), (15), or (20) of subdivision (d) of
Section 11054, or specified in subdivision (b) or (c) of
Section 11055, or specified in subdivision (h) of
Section 11056, or (2) any controlled substance
classified in Schedule III, IV, or V which is a narcotic
drug, shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code for
two, three, or four years.
UNITED STATES V. MURILLO-ALVARADO 7
Second, if the state law is not a categorical match, we ask
whether the statute of prior conviction is divisible. Mathis,
136 S. Ct. at 2249. A statute is divisible when it “list[s]
elements in the alternative, and thereby define[s] multiple
crimes.” Id.
If the statute of prior conviction is divisible, the third step
is to determine whether the conviction is a match to the
federal drug trafficking offense under the modified
categorical approach. At this step, we examine judicially
noticeable documents of conviction “to determine which
statutory phrase was the basis for the conviction.” Descamps
v. United States, 133 S. Ct. 2276, 2285 (2013) (quoting
Johnson v. United States, 559 U.S. 133, 144 (2010)). In this
case, the question would be whether the conviction of
Murillo-Alvarado involved a substance that appeared on the
federal list of controlled substances. If so, the prior conviction
may serve as a predicate offense under the Sentencing
Guidelines. See Shepard v. United States, 544 U.S. 13, 16
(2005).
A. The Divisibility of Section 11351
The parties do not dispute that in this case the state law at
issue, section 11351, is not a categorical match with a federal
drug trafficking offense. We have already held that section
11351 is not a categorical match with a federal drug
trafficking offense because California’s list of controlled
substances includes some that are not on the federal list.
United States v. Leal-Vega, 680 F.3d 1160, 1162 (9th Cir.
2012). Thus, our focus here is whether, at step two of the
analysis, section 11351 is a divisible statute.
8 UNITED STATES V. MURILLO-ALVARADO
A statute is not divisible when it “contains . . . alternative
means by which a defendant might commit the same crime.”
Martinez-Lopez, 864 F.3d at 1039 (citing Mathis, 136 S. Ct.
at 2256). A statute is divisible when it “list[s] elements in the
alternative, and thereby define[s] multiple crimes.” Mathis,
136 S. Ct. at 2249. We review the divisibility of a statute de
novo. Almanza-Arenas v. Lynch, 815 F.3d 469, 477 (9th Cir.
2016) (en banc).
Murillo-Alvarado argues that the controlled substance
requirement in section 11351 is not divisible because the
controlled substances enumerated in the cross-referenced
statutes are means by which a defendant commits a singular
controlled-substance offense, not elements of separate
crimes.2 In its supplemental brief, the Government contends
that Martinez-Lopez requires us to hold that those controlled
substances are elements, and that the controlled substance
requirement is therefore divisible.
We addressed a very similar question in our recent en
banc opinion in Martinez-Lopez, in which we held that
California Health and Safety Code section 11352 was
divisible. See Martinez-Lopez, 864 F.3d at 1039–41. Section
11352 contains a list of cross-referenced substances nearly
identical to the list in section 11351. The list in section 11351
differs from the list in section 11352 only in that section
11352 includes cocaine base and section 11351 does not.
2
Murillo-Alvarado has not argued that the actus reus requirement in
section 11351 is not divisible. Therefore, any such argument is waived.
See Miller v. Fairchild Indus., 797 F.2d 727, 738 (9th Cir. 1986) (noting
that this court “will not ordinarily consider matters on appeal that are not
specifically and distinctly argued in appellant’s opening brief”) (citing
Int’l Union of Bricklayers and Allied Craftsmen Local No. 20 v. Martin
Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985)).
UNITED STATES V. MURILLO-ALVARADO 9
Compare Cal. Health & Safety Code § 11351 with id.
§ 11352(a) (listing the same subsections and subparagraphs,
with one addition, subparagraph (f)(1) of Section 11054); see
id. § 11054(f)(1) (cocaine base). Thus, the list in section
11351 is just a subset of the list in section 11352.
Our reasoning in Martinez-Lopez guides us here.3 In
Martinez-Lopez, we noted that In re Adams, 536 P.2d 473
(Cal. 1975), and its progeny establish that “defendants are
routinely subjected to multiple convictions under a single
[California] statute for a single act as it relates to multiple
controlled substances.” Martinez-Lopez, 864 F.3d at 1040.
Relevantly here, in People v. Monarrez, 78 Cal. Rptr. 2d 247
(Ct. App. 1998), the California court of appeal upheld
separate convictions for possession of cocaine for sale and
possession of heroin for sale under section 11351 based on a
single incident. Id. at 248. This holding establishes that the
controlled substances incorporated in section 11351 are
elements establishing separate offenses and not means by
which to commit the same offense.
Further, similar to section 11352, the jury instructions for
section 11351 “require a jury to fill in a blank identifying ‘a
controlled substance’—i.e., only one—demonstrating that the
3
Indeed, our opinion in that case referred to the Supreme Court’s
remand of Guevara, a case which involved a prior conviction under
section 11351, and stated that “we respond to the Supreme Court’s
instruction by revisiting the entire line of cases.” Martinez-Lopez,
864 F.3d at 1036 n.1. We have already relied on Martinez-Lopez to hold
that two other sections of the California Health and Safety Code are
divisible with respect to their controlled substance requirements. See
United States v. Ocampo-Estrada, 873 F.3d 661, 668 (9th Cir. 2017) (Cal.
Health & Safety Code § 11378); United States v. Barragan, 871 F.3d 689,
715 (9th Cir. 2017) (Cal. Health & Safety Code § 11379).
10 UNITED STATES V. MURILLO-ALVARADO
jury identify and unanimously agree on a particular controlled
substance.” Martinez-Lopez, 864 F.3d at 1041; see Judicial
Council of California Criminal Jury Instructions CALCRIM
No. 2302 (2017 edition). The jury instructions thus treat the
particular controlled substance as an element, not a means.
In light of how it is interpreted by California courts, we
hold that section 11351—like section 11352—is divisible as
to its controlled substance requirement.
B. Application of the Modified Categorical Approach
Because section 11351 is a divisible statute, we now turn
to step three, in which we examine judicially noticeable
documents of prior conviction to determine whether it is clear
which statutory phrase was the basis for the conviction. If the
defendant pled or was found guilty of the elements
constituting a federal drug trafficking offense, the prior state
conviction may serve as a predicate offense under the
Sentencing Guidelines.
Murillo-Alvarado argues that, at step three, the
government failed to meet its burden to prove by clear and
convincing evidence that Murillo-Alvarado’s prior conviction
was a “drug trafficking offense.” See United States v.
Valdavinos-Torres, 704 F.3d 679, 691 (9th Cir. 2012). “We
review de novo the classification of a defendant’s prior
conviction for purposes of applying the Sentencing
Guidelines.” United States v. Coronado, 603 F.3d 706, 708
(9th Cir. 2010) (citation omitted).
In this case the question is whether the government
established that Murillo-Alvarado’s section 11351 conviction
was for a substance that was a controlled substance under
UNITED STATES V. MURILLO-ALVARADO 11
federal law. The government presented a certified copy of the
guilty plea form which contained a handwritten factual basis
in which Murillo-Alvarado admitted that on May 29, 2001, he
“possessed cocaine to be used for purposes of sale.” The
government also provided certified copies of the criminal
information, the court’s minute order, and the abstract of
judgment.
“Where the minute order or other equally reliable
document specifies that a defendant pleaded guilty to a
particular count of a criminal complaint, the court may
consider the facts alleged in the complaint.” Coronado v.
Holder, 759 F.3d 977, 986 (9th Cir. 2014) (citation omitted).
Here, the government provided reliable documents that
clearly specified that Murillo-Alvarado pled guilty to count 1
of the criminal information. The guilty plea form stated that
Murillo-Alvarado pled guilty to count “1 of the information.”
The form further specified that count 1 was for a violation of
“H&S 11351.” Likewise, the court’s minute order reflected
that Murillo-Alvarado pled guilty to “11351 HS as charged in
count 1” of the “[o]riginal information.” The abstract of
judgment stated that Murillo-Alvarado pled guilty to count
“1A” for violating “HS” “11351.” All of these sources
indicated a plea date of December 7, 2001, and they all
referred only to a single count. Count 1 of the information
charged that, on May 29, 2001, Murillo-Alvarado
“possess[ed] for sale and purchase[d] for sale a controlled
substance, to wit, COCAINE.” Thus, these documents
conclusively established that Murillo-Alvarado pled guilty to
a May 29, 2001 offense involving the possession of cocaine
for purposes of sale. It is undisputed that cocaine was and is
a controlled substance under federal law.
12 UNITED STATES V. MURILLO-ALVARADO
Murillo-Alvarado argues that the abstract of judgment
created doubt about the plea because it referenced a plea to
count “1A” rather than count “1.” He cites Medina-Lara v.
Holder, 771 F.3d 1106, 1113–15 (9th Cir. 2014), where we
held that the record was insufficient to establish that the plea
was to the offense originally charged. In that case the
government presented only two documents to meet its
burden: (1) an amended complaint alleging in count “003”
that the defendant possessed cocaine for sale, and (2) an
abstract of judgment reflecting that the defendant pled guilty
to count “3A,” without identifying the controlled substance
involved. Id. at 1113–14. The immigration judge and
government attorney openly speculated that the original
charge had been amended, but the government failed to
produce additional documents to clarify the record. Id. at
1114, 1118. “Against this backdrop, we [were] hard-pressed
to say that there [was] a ‘clear and convincing’ link between
the ‘3A’ in the abstract and the ‘3’ in the amended
complaint.” Id. at 1115. In reaching that result, however, we
acknowledged other cases where the record clearly reflected
that the plea was to a particular count “as charged in the
information.” Id. at 1113 (quoting United States v. Vidal,
504 F.3d 1072, 1087 (9th Cir. 2007) (en banc)).
This case is different because the district court here had
a more substantial record. The court had a handwritten factual
basis on the guilty plea form in which Murillo-Alvarado
admitted that on May 29, 2001, he possessed cocaine to be
used for purposes of sale. The guilty plea form and the minute
order both clearly indicated that Murillo-Alvarado was
pleading guilty to count 1 as charged in the information.
Count 1 was the only count, and it expressly charged Murillo-
Alvarado with possessing cocaine for sale. Taken together,
the documents demonstrated that Murillo-Alvarado pled
UNITED STATES V. MURILLO-ALVARADO 13
guilty to possession of cocaine for sale, a drug trafficking
offense supporting the 16-level sentencing enhancement. The
reference to “1A” in the abstract of judgment does not,
standing alone, nullify those admissions or create sufficient
ambiguity.
III. Conclusion
California Health and Safety Code section 11351 is
divisible as to its controlled substance requirement. Murillo-
Alvarado’s specific conviction involving cocaine under
section 11351 qualifies as a drug trafficking offense for
purposes of the Sentencing Guidelines. The trial court
properly applied a 16-level enhancement in its Sentencing
Guidelines calculation.
AFFIRMED.