United States v. Simha Furaha ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10063
Plaintiff-Appellee,
D.C. No.
v. 4:19-cr-00438-JST-1
SIMHA FURAHA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted January 14, 2021
San Francisco, California
Filed March 25, 2021
Before: J. CLIFFORD WALLACE and MILAN D.
SMITH, JR., Circuit Judges, and ROBERT S. LASNIK, *
District Judge.
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable Robert S. Lasnik, United States District Judge for
the Western District of Washington, sitting by designation.
2 UNITED STATES V. FURAHA
SUMMARY **
Criminal Law
In a case in which the defendant pleaded guilty to
possessing a firearm as a convicted felon in violation of
18 U.S.C. § 922(g)(1), the panel affirmed the district court’s
application of a sentence enhancement pursuant to U.S.S.G.
§ 2K2.1(a)(4)(A) on the ground that the defendant’s prior
conviction for possessing a firearm in furtherance of a “drug
trafficking crime” under 18 U.S.C. § 924(c) constituted a
“controlled substance offense” under U.S.S.G. § 4B1.2.
Applying the categorical approach, the panel noted that
the parties agreed that § 924(c)’s definition of “drug
trafficking crime,” which encompasses simple possession, is
broader than § 4B1.2's definition of “controlled substance
offense,” which does not.
Because the statute’s definition of “drug trafficking
crime” is not a categorical match to the Sentencing
Guidelines definition of “controlled substance offense,” the
panel examined whether the statute is divisible, and
concluded that it is. The panel observed that the predicate
offense is an element of the § 924(c) crime—the jury must
unanimously agree that the defendant committed the
predicate drug trafficking offense (or crime of violence) to
convict the defendant, and the prosecution must prove the
defendant committed a specific drug trafficking crime, not
just any drug trafficking crime.
**
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. FURAHA 3
Applying the modified categorical approach, the panel
observed that the defendant’s plea agreement in the prior
case demonstrated that in addition to his conviction pursuant
to § 924(c), the defendant pleaded guilty to two drug
trafficking crimes, either of which could serve as the
predicate for his § 924(c) conviction, as they both constitute
“controlled substance offenses” within the meaning of
§ 4B1.2(b).
The panel therefore affirmed the district court’s
application of the enhancement pursuant to
§ 2K2.1(a)(4)(A).
COUNSEL
Jerome E. Matthews (argued) and Lisa Ma, Assistant Federal
Public Defenders; Steven G. Kalar, Federal Public Defender;
Office of the Federal Public Defender, Oakland, California;
for Defendant-Appellant.
Nikhil Bhagat (argued), Assistant United States Attorney;
Merry Jean Chan, Chief, Appellate Section, Criminal
Division; David L. Anderson, United States Attorney;
United States Attorney’s Office, San Francisco, California;
for Plaintiff-Appellee.
OPINION
M. SMITH, Circuit Judge:
This case requires us to determine whether possessing a
firearm in furtherance of a “drug trafficking crime,” as
defined by 18 U.S.C. § 924(c), constitutes a “controlled
4 UNITED STATES V. FURAHA
substance offense,” as defined by United States Sentencing
Guidelines § 4B1.2(b). Appellant Simha Furaha challenges
the district court’s application of U.S.S.G. § 2K2.1(a)(4)(A)
to his sentence, arguing that under the categorical approach,
§ 924(c) is overbroad and not divisible. We disagree, and
affirm the district court.
FACTUAL AND PROCEDURAL BACKGROUND
On July 22, 2009, Furaha was charged with
(1) possession with intent to distribute heroin, in violation of
21 U.S.C. § 841(a)(1) (Count One); (2) possession with
intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1) (Count Two); (3) possession of a firearm in
furtherance of a drug trafficking offense, in violation of
18 U.S.C. § 924(c) (Count Three); and (4) possessing a
firearm and ammunition as a convicted felon, in violation of
18 U.S.C. § 922(g)(1) (Count Four). Furaha pleaded guilty
to Count Three—violation of 18 U.S.C. § 924(c).
In pleading guilty, Furaha admitted that one of the
elements of the offense to which he was pleading guilty was
“possession with intent to distribute a controlled substance
as charged in counts one and two of the indictment.” He also
admitted that he possessed a firearm “to protect [him]self
from being robbed or attacked by rival drug dealers and to
protect [his] drugs and money from any potential robbers.”
In 2010, Furaha was sentenced to the mandatory minimum
of 60 months’ imprisonment.
In 2019, Furaha was charged with possessing a firearm
as a convicted felon in violation of 18 U.S.C. § 922(g)(1). In
February of 2020, Furaha pleaded guilty to the indictment.
Under the Sentencing Guidelines, a person convicted
pursuant to § 922(g)(1) starts with a base offense level of 14,
UNITED STATES V. FURAHA 5
but that level increases to 20 if the defendant has a prior
conviction for a “controlled substance offense.” U.S.S.G.
§§ 2K2.1(a)(6), (a)(4). In Furaha’s case, the probation
officer calculated Furaha’s base offense level as 20,
concluding that Furaha’s previous 18 U.S.C. § 924(c)
conviction constituted a “controlled substance offense.”
Furaha objected, arguing that § 924(c)’s definition of “drug
trafficking crime” is broader than the Guidelines’ definition
of “controlled substance offense.”
The district court overruled Furaha’s objection. The
court explained that “the commentary for [U.S.S.G. § 4B1.2]
advises that a conviction for [§] 924(c) can constitute a crime
of violence or controlled substance offense if the offense of
conviction establishes the underlying offense was a crime of
violence or controlled substance offense.” Given Furaha’s
records of conviction, and specifically his plea agreement,
the court was convinced Furaha’s prior conviction pursuant
to § 924(c) was a controlled substance offense. The court
also cited the Ninth Circuit’s model jury instructions and
§ 924(c) itself to conclude that the statute is divisible. As
such, the court applied the modified categorical approach.
This led the court to the same conclusion: “the underlying
[§] 924(c) conviction was a controlled substance offense.” 1
1
The sentencing hearing transcript indicates that the district court
held that § 924(c) was divisible between “crime of violence” and “drug
trafficking crime.” The district court did not decide whether the statute’s
“drug trafficking crime” was divisible. Furaha’s attorney asked the court
“to clarify” whether the court’s “analysis [is] that because crime of
violence and drug-trafficking crime are alternative crimes, then” the
statute is “divisible and the court goes to the modified categorical
approach.” The court did not answer the question. The attorney then
stated, “[I]t’s the defense position that . . . the court should be focusing
6 UNITED STATES V. FURAHA
The § 2K2.1(a)(4) enhancement increased Furaha’s
Guidelines’ range to 37 to 46 months. The district court
sentenced him to 37 months’ imprisonment. Furaha timely
appealed.
On appeal, Furaha argues that possessing a firearm in
furtherance of a “drug trafficking crime” pursuant to
§ 924(c) is not categorically a “controlled substance offense”
under the Guidelines because the statute is overbroad. The
statute criminalizes the use or carrying of a firearm during
and in relation to, among other things, simple possession of
a controlled substance, whereas the Guidelines’ definition of
“controlled substance offense” does not include simple
possession. Therefore, Furaha argues, his case turns on
whether § 924(c) is a divisible statute. Citing the text of the
statute and case law, he posits that it is not. Because § 924(c)
is not divisible, Furaha contends, the enhancement cannot
apply to his sentence because “a conviction under an
indivisible, overbroad statute can never serve as a predicate
offense.” See Alamzna-Arenas v. Lynch, 815 F.3d 469, 475
(9th Cir. 2016) (en banc) (citation omitted).
In response, the government argues that the district court
did not err because Application Note 1 to U.S.S.G. § 4B1.2
dictates that Furaha’s conviction pursuant to § 924(c) is a
“controlled substance offense.” The government further
contends that even if we do not defer to the Application
Note, we should still affirm the district court because
§ 924(c) is divisible, the modified categorical approach
applies, and under that approach, Furaha’s previous offense
constitutes a “controlled substance offense.”
on drug-trafficking crime specifically and making a determination
whether that definition is divisible or indivisible.”
UNITED STATES V. FURAHA 7
STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3724. We review the district court’s
interpretation of the Sentencing Guidelines de novo. United
States v. Tankersley, 537 F.3d 1100, 1110 (9th Cir. 2008);
see also United States v. Brown, 879 F.3d 1043, 1047 (9th
Cir. 2018) (applying de novo review to determinations of
“whether a prior conviction is a ‘controlled substance
offense’”).
ANALYSIS
Whether a prior conviction pursuant to 18 U.S.C.
§ 924(c) is a “controlled substance offense” for purposes of
U.S.S.G. § 2K2.1(a)(4)(A) is an issue of first impression in
our circuit. The only other circuit to have answered this
question held that § 924(c) is divisible, applied the modified
categorical approach, and ultimately imposed the
§ 2K2.1(a)(4) enhancement on the defendant’s sentence.
See United States v. Williams, 926 F.3d 966 (8th Cir. 2019).
We agree.
Pursuant to the Sentencing Guidelines, a “controlled
substance offense” is “an offense under federal or state law,
punishable by imprisonment for a term exceeding one year,
that prohibits the manufacture, import, export, distribution,
or dispensing of a controlled substance . . . or the possession
of a controlled substance (or a counterfeit substance) with
intent to manufacture, import, export, distribute, or
dispense.” U.S.S.G. § 4B.2(b).
In determining whether a prior conviction meets this
definition, we apply “the categorical approach announced by
the Supreme Court in Taylor v. United States, 495 U.S. 575,
110 S. Ct. 2143, 109 L.Ed.2d 607 (1990), and its progeny.”
8 UNITED STATES V. FURAHA
United States v. Ochoa, 861 F.3d 1010, 1015 (9th Cir. 2017).
The categorical approach involves three steps:
[W]e inquire first “whether the elements of
the crime of conviction sufficiently match the
elements of the [generic federal crime].” If
the statute is overbroad and thus not a
categorical match, we next ask whether the
statute’s elements are also an indivisible set.
Finally, if the statute is divisible, then the
modified categorical approach applies and “a
sentencing court looks to a limited class of
documents . . . to determine what crime, with
what elements, a defendant was convicted
of.”
United States v. Arriaga-Pinon, 852 F.3d 1195, 1198–99
(9th Cir. 2017) (quoting Mathis v. United States, 136 S. Ct.
2243, 2248–49 (2016)). 2
Here, the parties agree that the statute is overbroad. The
statutory definition of a “drug trafficking crime”—“any
felony punishable under the Controlled Substances Act”—
encompasses more conduct than the definition of a
“controlled substance offense” pursuant to § 4B1.2(b). See
18 U.S.C. § 924(c)(2). For example, simple possession is not
a “controlled substance offense” under the Sentencing
Guidelines, but it is a “drug trafficking crime” pursuant to
2
Because we conclude that under the modified categorical
approach, Furaha’s § 924(c) conviction is a “controlled substance
offense” within the meaning of § 4B1.2(b), we decline to address the
parties’ dispute regarding the effect of Application Note 1 to U.S.S.G.
§ 4B1.2 on whether the sentencing enhancement applies here.
UNITED STATES V. FURAHA 9
§ 924(c). Id.; U.S.S.G. § 4B1.2(b); see also United States v.
Villa-Lara, 451 F.3d 963, 965 (9th Cir. 2006).
Because the statute’s definition of “drug trafficking
crime” is not a categorical match to the Sentencing
Guidelines’ definition of “controlled substance offense,” we
must determine whether the statute is divisible. Ochoa,
861 F.3d at 1016. A divisible statute “sets out one or more
elements of the offense in the alternative,” Descamps v.
United States, 570 U.S. 254, 257 (2013) (emphasis added),
whereas an indivisible statute lists “alternative means of
committing a single crime,” Ochoa, 861 F.3d at 1016–17. In
determining whether a statute is divisible, “[w]e begin by
considering the statute’s text.” Id. at 1017 (citing Almanza-
Arenas, 815 F.3d at 477). We then may “consult court
decisions interpreting the statute.” Id. (citing Mathis, 136 S.
Ct. at 2256). “And if [the] law fails to provide clear
answers,” we may “‘peek at the record documents’ . . . for
‘the sole and limited purpose of determining whether the
listed items are elements of the offense.’” Mathis, 136 S. Ct.
at 2256–57 (brackets omitted) (quoting Rendon v. Holder,
782 F.3d 466, 473–74 (9th Cir. 2015) (opinion dissenting
from denial of reh’g en banc)).
Section 924(c) provides:
[A]ny person who, during and in relation to
any crime of violence or drug trafficking
crime . . . for which the person may be
prosecuted in a court of the United States,
uses or carries a firearm, or who, in
furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment
provided for such crime of violence or drug
trafficking crime . . . be sentenced to a term
of imprisonment of not less than 5 years[.]
10 UNITED STATES V. FURAHA
18 U.S.C. § 924(c)(1)(A)(i). The offense, therefore, requires
that the defendant commit a predicate offense, specifically a
“crime of violence” or a “drug trafficking crime.” The
relevant question, however, is whether the predicate offense
is an element of a § 924(c) crime—in other words, whether
the jury must unanimously agree that the defendant
committed the predicate drug trafficking offense (or crime
of violence) to convict the defendant. See Mathis, 136 S. Ct.
at 2248. The statutory text does not clearly answer this
question. See United States v. Boman, 873 F.3d 1035, 1041
(8th Cir. 2017) (“The language of § 924(c)(1) is not
particularly helpful in determining whether the statute lists
alternative means or elements.”).
Case law is much more helpful. Although Rosemund v.
United States, 572 U.S. 65, 71 (2014), concerns aiding and
abetting liability under § 924(c), the Supreme Court’s
discussion of “this double-barreled crime” in that case is
relevant in determining the statute’s elements. The Court
explained that § 924(c) requires the prosecutor to “show the
use or carriage of a gun” and to “prove the commission of a
predicate (violent or drug trafficking) offense.” Rosemund,
572 U.S. at 71 (citing Smith v. United States, 508 U.S. 223,
228 (1993)). There, it was undisputed that the defendant
“actively participated in a drug transaction.” Id. at 71–72.
However, the defendant maintained that “he took no action
with respect to any firearm.” Id. at 72. The Court, therefore,
stated that the defendant “advanced one part (the drug part)
of a two-part incident—or to speak a bit more technically,
one element (the drug element) of a two-element crime.” Id.
(emphasis added).
Furthermore, our circuit’s case law demonstrates that
“the drug element” of § 924(c) requires the prosecution to
prove the defendant committed a specific drug trafficking
UNITED STATES V. FURAHA 11
crime, not just any drug trafficking crime. In United States
v. Rios, 449 F.3d 1009, 1012 (9th Cir. 2006), we held:
To prove that [the defendant] possessed a
firearm in furtherance of a drug trafficking
crime in violation of § 924(c)(1)(A), the
government must show that (1) [the
defendant] participated in the conspiracy to
traffic in prescription drugs; 2) [he]
possessed the firearm; and (3) [his]
possession of the firearm was “in
furtherance” of the drug trafficking
conspiracy.
(citing United States v. Mann, 389 F.3d 869, 879 (9th Cir.
2004)); see also United States v. Hector, 474 F.3d 1150,
1157 (9th Cir. 2007) (explaining that “courts generally look
to see if the government has shown a specific ‘nexus’
between the particular firearm and the particular drug crime
at issue”); United States v. Krouse, 370 F.3d 965, 967 (9th
Cir. 2004) (concluding that § 924(c) “requires proof that the
defendant possessed the weapon to promote or facilitate the
underlying crime”); United States v. Mendoza, 11 F.3d 126,
128 (9th Cir. 1993) (holding that an “essential element” of
§ 924(c) is “the relation between the firearm and the
underlying offense”).
A “peek” at the record also supports the government’s
argument that a necessary element of a § 924(c) conviction
is the commission of a particular drug trafficking crime.
Furaha’s indictment charges two crimes that constitute drug
trafficking crimes: (1) possession with intent to distribute
heroin in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C); and (2) possession with intent to distribute
cocaine in violation of the same provisions. Count Three of
12 UNITED STATES V. FURAHA
the indictment—the § 924(c) charge—alleges that Furaha
“knowingly carr[ied] a firearm during and in relation to the
drug trafficking crimes alleged in Counts One and Two
herein[.]” Therefore, in charging Furaha with violating
§ 924(c), the indictment identifies the specific drug
trafficking crimes that serve as predicate offenses.
Furaha contends that the indictment supports his
argument that § 924(c) is indivisible because a jury could
convict him on Count Three without identifying the specific
crime serving as the predicate offense. In other words,
Furaha maintains that we cannot know whether the jury
could have found beyond a reasonable doubt that he
committed the heroin offense or the cocaine offense, only
one of which is essential to a § 924(c) conviction. Cf. In re
Gomez, 830 F.3d 1225, 1227 (11th Cir. 2016) (granting an
application to file a successive habeas motion because “the
jurors . . . could have convicted Gomez of the § 924(c)
offense without reaching unanimous agreement on during
which crime it was that Gomez possessed the firearm”).
A “peek” at this circuit’s model jury instructions,
however, forecloses Furaha’s argument. The model jury
instructions require the district court to “specify [the]
applicable crime of violence or drug trafficking crime” that
constitutes the predicate offense for a § 924(c) count.
Manual of Model Criminal Jury Instructions for the District
Courts of the Ninth Circuit § 8.71 (2010). “If the crime of
violence or drug trafficking crime is not charged in the same
indictment,” then the model jury instructions require that
“the elements of the crime . . . also be listed and [that] the
jury . . . be instructed that each element must be proved
beyond a reasonable doubt.” Id. (citing Mendoza, 11 F.3d
126). The model jury instructions, therefore, do more than
“suggest” that jury unanimity is required for the drug
UNITED STATES V. FURAHA 13
trafficking crime, as Furaha argues. The instructions
specifically mandate it. Furthermore, the model jury
instructions do not contemplate the possibility of two drug
trafficking crimes serving as alternatives for the predicate
offense. See id. Instead, the instructions specifically state
that the jury must agree the defendant committed a specified
crime, not “crimes.” Id. Accordingly, the model jury
instructions demonstrate that “drug trafficking crime”
pursuant to § 924(c) is divisible.
The third and final step of the categorical approach
requires us to apply the “modified categorical approach.”
Mathis, 136 S. Ct. at 2249. “Under that approach,” we
“look[] to a limited class of documents (for example, the
indictment, jury instructions, or plea agreement and
colloquy) to determine what crime, with what elements, a
defendant was convicted of.” Id. (citing Shepard v. United
States, 544 U.S. 13, 26 (2005); Taylor, 495 U.S. at 602). We
“then compare that crime,” i.e., the crime of which the
defendant was convicted, “as the categorical approach
commands, with the relevant generic offense.” Id.Furaha’s plea agreement demonstrates that in addition to
his conviction pursuant to § 924(c), Furaha pleaded guilty to
two drug trafficking crimes: (1) possession with intent to
distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C); and (2) possession with intent to distribute
cocaine in violation of the same provisions. Either of these
crimes could serve as the predicate for Furaha’s § 924(c)
conviction. Pursuant to the definition in the Sentencing
Guidelines, both crimes constitute “controlled substance
offenses.” U.S.S.G. § 4B1.2(b). Accordingly, under the
modified categorical approach, Furaha’s § 924(c) conviction
is a “controlled substance offense” within the meaning of
§ 4B1.2(b).
14 UNITED STATES V. FURAHA
CONCLUSION
We conclude that the district court did not err in
concluding that Furaha’s § 924(c) conviction constitutes a
“controlled substance offense,” as defined by § 4B1.2(b).
Therefore, we affirm the district court’s application of the
relevant sentencing enhancement because Furaha
“committed” the § 924(c) “offense subsequent to sustaining
one felony conviction of . . . a controlled substance
offense[.]” U.S.S.G. § 2K2.1(a)(4)(A).
AFFIRMED.