United States v. Morales -Perez ( 2006 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,             
    Plaintiff-Appellee,         No. 05-10115
    v.
           D.C. No.
    CR-04-00094-JCM
    RODRIGO ALEJANDRO MORALES-
    PEREZ,                                       OPINION
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the District of Nevada
    James C. Mahan, District Judge, Presiding
    Argued and Submitted
    November 18, 2005—San Francisco, California
    Filed February 22, 2006
    Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain, and
    Richard C. Tallman, Circuit Judges.
    Opinion by Judge Goodwin;
    Dissent by Judge Tallman
    1931
    UNITED STATES v. MORALES-PEREZ          1933
    COUNSEL
    Rene L. Valladares, Assistant Federal Public Defender, Las
    Vegas, Nevada, for the defendant-appellant.
    Robert A. Bork, Assistant U.S. Attorney, Las Vegas, Nevada,
    for the plaintiff-appellee.
    1934           UNITED STATES v. MORALES-PEREZ
    OPINION
    GOODWIN, Circuit Judge:
    Rodrigo Alejandro Morales-Perez appeals his 70-month
    sentence for unlawful reentry of a deported alien. Morales-
    Perez contends that the district court erred in finding that his
    prior conviction for possession or purchase of cocaine base
    for purposes of sale is categorically a drug trafficking offense
    warranting a sixteen level enhancement under United States
    Sentencing Guideline (U.S.S.G.) § 2L1.2(b)(1)(A). We hold
    that Morales-Perez’s conviction for possession or purchase of
    cocaine base for purposes of sale, in violation of California
    Health & Safety Code section 11351.5, is not categorically a
    drug trafficking offense within the meaning of U.S.S.G
    § 2L1.2(b)(1)(A). We therefore vacate the district court’s sen-
    tence and remand for the district court to conduct a modified
    categorical analysis at resentencing.
    I.
    Rodrigo Alejandro Morales-Perez pled guilty to one count
    of unlawful reentry of a deported alien in violation of 8
    U.S.C. § 1326. On November 23, 2004, Morales-Perez filed
    a written objection to the presentence report’s (PSR) calcula-
    tion of his offense level which increased the base level by six-
    teen for a prior crime of violence conviction. He also argued
    that the court should not have considered his prior convictions
    at all. The government’s response defended the PSR’s calcu-
    lations, and in the alternative, offered Morales-Perez’s prior
    conviction under California Health and Safety Code section
    11351.5 for possession for sale of cocaine base as a reason to
    increase the base offense level by sixteen levels. Morales-
    Perez’s supplemental sentencing memorandum argued that
    the district court should apply a categorical approach and then
    a modified categorical approach to analyze his prior drug con-
    viction.
    UNITED STATES v. MORALES-PEREZ              1935
    At the December 6, 2004, sentencing hearing, the govern-
    ment argued that section “11351.5 does require at least con-
    structive [possession] that’s consistent with federal law and
    the sixteen level [increase] applies.” The district court held
    that the Guidelines’ definition of drug trafficking includes dis-
    tribution and stated that “distribution would include posses-
    sion, constructive possession, whether he could — under
    California statute if he purchased it for sale, that would be
    included.” The sixteen level enhancement was applied with-
    out a modified categorical analysis because the district court
    held that “the federal definition of drug trafficking offense is
    broad enough to include the crime for which he was convicted
    here no matter how you read the state statute.” Morales-Perez
    timely appealed his sentence.
    II.
    United States Sentencing Guideline § 2L1.2(a) provides the
    base offense level for convictions under 18 U.S.C. § 1326. If
    a defendant previously was deported after “a conviction for a
    felony that is (i) a drug trafficking offense for which the sen-
    tence imposed exceeded 13 months,” the defendant’s offense
    level should be increased by sixteen levels. U.S.S.G.
    § 2L1.2(b)(1)(a). For the purposes of this increase, a drug
    trafficking offense is “an offense under federal, state, or local
    law that prohibits the manufacture, import, export, distribu-
    tion, or dispensing of 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.” U.S.S.G. § 2L1.2 cmt.
    n.1(B)(iv).
    The district court held that Morales-Perez’s prior convic-
    tion under California Health and Safety Code section 11351.5
    was a drug trafficking offense under § 2L1.2(b)(1)(a). That
    statute is entitled “Possession of cocaine base for sale; punish-
    ment,” and provides:
    1936              UNITED STATES v. MORALES-PEREZ
    Except as otherwise provided in this division, every
    person who possesses for sale or purchases for pur-
    poses of sale cocaine base which is specified in para-
    graph (1) of subsection (f) of Section 11054, shall be
    punished by imprisonment in the state prison for a
    period of three, four, or five years.
    CAL. HEALTH & SAFETY CODE § 11351.5 (West 2005).
    To determine whether a prior conviction qualifies to
    enhance a defendant’s sentence under the Guidelines, this
    court applies the Taylor categorical approach and then the
    modified categorical approach. United States v. Vidal, 
    426 F.3d 1011
    (9th Cir. 2005) (holding that Blakely and Booker
    did not affect these approaches).
    A.     The Taylor Categorical Approach
    [1] The categorical approach to determining whether a prior
    conviction should be used to enhance a sentence “generally
    requires the trial court to look only to the fact of conviction
    and the statutory definition of the prior offense.” Taylor v.
    United States, 
    495 U.S. 575
    , 602 (1990); see also United
    States v. Navidad-Marcos, 
    367 F.3d 903
    , 908 (9th Cir. 2004)
    (applying Taylor’s categorical approach to § 2L1.2(b)(1)
    (A)(i)’s drug trafficking enhancement). Here, the state statute
    in question criminalizes possession or purchase of cocaine
    base for sale.
    1.     Possess for Sale or Purchase for Sale are Independent
    Means of Violating Section 11351.5
    Morales-Perez argues that section 11351.5 does not fall
    completely within the Guidelines’ definition of drug traffick-
    ing because purchase is not manufacture, import, export, dis-
    tribution, dispensing or possession. The government contends
    that in order to be convicted at all under section 11351.5, one
    must possess a controlled substance. We have found no pub-
    UNITED STATES v. MORALES-PEREZ               1937
    lished California opinion directly discussing this issue. The
    statute’s plain meaning treats purchase and possession for sale
    as two independent means of violating the statute.
    [2] Section 11351.5 punishes a person for possession of
    cocaine base for sale, or for purchase of cocaine base for sale.
    The statute does not require possession and purchase, and
    does not indicate that the disjunctive pairing is anything other
    than a list of alternative means of falling within the statute’s
    purview.
    [3] To read the word “purchase” as one form of possession
    would divest the purchase alternative of its independent
    meaning. “It is, however, a cardinal principle of statutory con-
    struction that we must give effect, if possible, to every clause
    and word of a statute.” Williams v. Taylor, 
    529 U.S. 362
    , 404
    (2000) (internal quotation marks omitted). The purchase lan-
    guage can reach those who buy drugs without ever possessing
    them. See, e.g., Armstrong v. People, 
    265 Cal. Rptr. 877
    (Cal.
    Ct. App. 1990) (controlled purchase does not require actual or
    constructive possession). In addition, the fact that the statute’s
    title mentions possession and not purchase “cannot limit the
    plain meaning of the text.” Pa. Dep’t. of Corrs. v. Yeskey, 
    524 U.S. 206
    , 212 (1998) (citation omitted). It is the plain mean-
    ing of the statute that possession and purchase for sale are two
    independent means of violating the law.
    2.   Purchase for Sale is Not Drug Trafficking Under the
    Guidelines
    [4] For the purposes of § 2L1.2(b)(1)(a), a drug trafficking
    offense involves “the manufacture, import, export, distribu-
    tion, or dispensing of 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.” U.S.S.G. § 2L1.2 cmt.
    n.1(B)(iv). Possession for sale directly falls within this defini-
    tion since sale is one means of distribution. However, pur-
    1938            UNITED STATES v. MORALES-PEREZ
    chase is not a form of possession or of any other type of drug
    trafficking offense under § 2L1.2(b)(1)(a). Therefore, a Cali-
    fornia Health & Safety Code section 11351.5 purchase for
    sale conviction falls outside the Guidelines’ definition of drug
    trafficking.
    B.     The Modified Categorical Approach
    [5] Since section 11351.5 criminalizes activity which does
    not constitute drug trafficking under the Guidelines, “the con-
    viction may not be used for sentence enhancement unless the
    record includes ‘documentation or judicially noticeable facts
    that clearly establish that the conviction is a predicate convic-
    tion for enhancement purposes.’ ” United States v. Corona-
    Sanchez, 
    291 F.3d 1201
    , 1203 (9th Cir. 2002) (en banc) (quot-
    ing United States v. Rivera-Sanchez, 
    247 F.3d 905
    , 908 (9th
    Cir. 2001) (en banc)). This is called the modified categorical
    approach.
    [6] A presentence report which does not indicate the source
    of its factual information is not a judicially noticeable fact for
    this analysis. 
    Corona-Sanchez, 291 F.3d at 1212
    . The district
    court looked only to the PSR to determine Morales-Perez’s
    prior convictions, and the PSR did not indicate the source of
    this information. Although the government referenced facts
    not included in the PSR at the sentencing hearing, the record
    does not reveal the source of any additional information
    regarding Morales-Perez’s prior convictions. Therefore, the
    sentence must be vacated, and the case remanded. On remand,
    the “government will have the opportunity at re-sentencing to
    offer additional evidence to support the enhancement.”
    
    Navidad-Marcos, 367 F.3d at 909
    .
    III.
    Morales-Perez also argues that the district court violated his
    Sixth Amendment rights by considering his prior conviction
    at all in determining his sentence because he did not admit the
    UNITED STATES v. MORALES-PEREZ              1939
    prior conviction when he pled guilty. A prior drug conviction
    “need not be proven beyond a reasonable doubt or admitted
    by the defendant to satisfy the Sixth Amendment.” United
    States v. Esparza-Gonzalez, 
    422 F.3d 897
    , 907 (9th Cir.
    2005). This argument therefore fails.
    Morales-Perez finally seeks a limited remand pursuant to
    United States v. Ameline, 
    409 F.3d 1073
    (9th Cir. 2005) (en
    banc). Because we vacate his sentence and remand for resen-
    tencing pursuant to the modified categorical approach, we
    need not consider Ameline. However, the district court will
    resentence Morales-Perez under the current advisory system.
    The sentence is VACATED, and the case is REMANDED
    for resentencing.
    TALLMAN, Circuit Judge, dissenting:
    We must presume that when the United States Sentencing
    Commission wrote the enhancement guideline for prior drug
    trafficking offenses it had in mind Title 21 of the United
    States Code. Section 841(a)(1) declares that it “shall be
    unlawful for any person knowingly or intentionally . . . to
    manufacture, distribute, or dispense, or possess with intent to
    . . . distribute . . . a controlled substance . . . .” 21 U.S.C.
    § 841(a)(1) (emphasis added). That is the heart of federal drug
    trafficking offenses and the California statutes are no differ-
    ent. The intent to sell element is the key to the proper analysis
    which the majority overlooks.
    California Health and Safety Code § 11351.5 provides that
    “every person who possesses for sale or purchases for pur-
    poses of sale cocaine base . . . shall be punished by imprison-
    ment in the state prison . . . .” (Emphasis added). Like its
    federal counterpart, California’s statute establishes multiple
    means by which a drug trafficking crime may be committed.
    1940             UNITED STATES v. MORALES-PEREZ
    Nevertheless, just because California provides different ways
    to commit the same offense does not render the statute overly
    broad under the Supreme Court’s categorical approach for
    determining whether a prior drug trafficking offense can be
    used to enhance a recidivist’s sentence. See Taylor v. United
    States, 
    495 U.S. 575
    (1990). Because § 11351.5 meets the
    Taylor test, we need go no further.
    Whether Morales-Perez was in actual possession of the
    cocaine base or had simply purchased the cocaine base with
    the intent to distribute is not significant. One simple fact
    remains, had Morales-Perez been prosecuted in federal court
    for the same conduct which violated California law, he would
    have been prosecuted for possession with intent to distribute
    under 21 U.S.C. § 841(a)(1), see United States v. Ivy, 
    973 F.2d 1184
    , 1188 (5th Cir. 1992) (finding actual possession
    when the defendant “handed over $20,000 in cash for the
    cocaine” and “took the package and began to open it before
    his arrest”), abrogated on other grounds by Bailey v. United
    States, 
    516 U.S. 137
    (1995), or at least attempted possession
    with intent to distribute under 21 U.S.C. §§ 841(a)(1) and
    846, see United States v. Rosalez-Cortez, 
    19 F.3d 1210
    , 1217
    (7th Cir. 1994) (upholding conviction for attempted posses-
    sion with intent to distribute when defendant furthered the
    purchase by helping to hide the money, and the defendant
    accompanied the others to deliver the money and complete
    the purchase of the cocaine).1
    For instance, in United States v. Hernandez, No. 04-16663,
    
    2005 WL 3525613
    (11th Cir. Dec. 27, 2005), the Eleventh
    Circuit upheld a conviction for possession with intent to dis-
    tribute two kilograms of cocaine hydrochloride under 21
    1
    The attempted possession with intent to sell is a drug trafficking
    offense as defined by the United States Sentencing Guidelines
    (“U.S.S.G.”). See U.S.S.G. § 2L1.2 cmt. n.5 (“[Prior drug trafficking
    offenses] include the offense of aiding and abetting, conspiring, and
    attempting, to commit such offenses.”).
    UNITED STATES v. MORALES-PEREZ               1941
    U.S.C. §§ 841, 846, when the only evidence connecting the
    defendant to the crime was the fact that he tendered the
    money to purchase the drugs and then subsequently requested
    that his portion of the drugs be brought to him. 
    Id. at *1,
    *4.
    While a co-conspirator acknowledged that Hernandez was a
    purchaser, there was no evidence that Hernandez obtained
    actual possession of the drugs. However, what the evidence
    did prove was a completed purchase; by purchasing the drugs
    Hernandez obtained the right to control the drugs. Because
    Hernandez aided and abetted the crime of possession of
    cocaine with intent to distribute, he could be punished as a
    principle, see 18 U.S.C. § 2; Hernandez, 
    2005 WL 3525613
    ,
    at *4, and the Eleventh Circuit concluded that there was suffi-
    cient evidence to sustain his conviction for possession with
    intent to distribute under 21 U.S.C. §§ 841, 846, Hernandez,
    
    2005 WL 3525613
    , at *4.
    Therefore, under federal drug trafficking laws, Hernandez
    was convicted for possession with intent to distribute under
    the same facts that the majority argues would only qualify as
    a “purchase” with intent to distribute. Yet, Hernandez’s con-
    viction, because it occurred in federal court, would categori-
    cally qualify as a drug trafficking offense under the
    Sentencing Guidelines, whereas Morales-Perez’s state convic-
    tion does not. See U.S.S.G. § 2L1.2 cmt. n.5. The result
    makes no sense.
    The whole point of this exercise is to determine when a
    federal defendant should be punished more harshly for a sub-
    sequent conviction when he has been previously convicted of
    a drug trafficking crime. The district court had little difficulty
    in concluding that Morales-Perez had previously been
    involved in drug dealing activities. It concluded that “the fed-
    eral definition of drug trafficking offense is broad enough to
    include the crime for which [Morales-Perez] was convicted
    . . . no matter how you read the state statute.” I agree. The dis-
    trict court gave a sensible reading to the California statute and
    we should do the same.
    1942               UNITED STATES v. MORALES-PEREZ
    At a minimum, the California statute requires the purchase
    or possession of drugs with intent to sell. When convicted of
    possession of cocaine base with the requisite intent to sell,
    Morales-Perez committed a drug trafficking offense as con-
    templated by the Sentencing Guidelines. See U.S.S.G.
    § 2L1.2(b)(1)(A). Because the majority’s overscrupulous
    application of the Taylor categorical approach to § 11351.5
    defies any common sense reading of the Sentencing Guide-
    lines, I respectfully dissent.
    The “purchase for purpose of sale” is the quintessential
    “drug trafficking offense.” After the purchaser has completed
    his purchase, he has obtained the right to control the pur-
    chased item. Under California law, a person has constructive
    possession when he “maintains control or the right to control
    the contraband.” People v. Showers, 
    68 Cal. Rptr. 459
    , 644
    (1968). Because the definition of “drug trafficking offense” is
    broad enough to include both constructive as well as actual
    possession, I would find that a conviction under § 11351.5
    categorically qualifies as a drug trafficking offense under
    U.S.S.G. § 2L1.2(b)(1)(A). The Fifth Circuit agrees. See
    United States v. Palacios-Quinonez, 
    431 F.3d 471
    , 473-77
    (5th Cir. 2005) (finding that the district court did not err in
    upholding the use of a conviction under California Health and
    Safety Code § 11351.5 as constituting a drug trafficking
    offense under U.S.S.G. § 2L1.2(b)(1)(A));2 United States v.
    2
    The majority’s decision is inconsistent with the Fifth Circuit’s reason-
    ing in Palacios-Quinonez. The Palacios-Quinonez panel reviewed the dis-
    trict court’s decision for plain 
    error. 431 F.3d at 473
    . There are three steps
    to the plain error analysis: (1) was there an error; (2) was it plain by being
    clear or obvious; and (3) did it affect the defendant’s substantial rights.
    United States v. Olano, 
    507 U.S. 725
    , 731-37 (1993). The Palacios-
    Quinonez panel never reached the question of whether the error was plain
    or obvious because it held that the district court did not err in finding that
    a prior conviction under § 11351.5 categorically qualified as a drug traf-
    ficking offense. 
    See 431 F.3d at 474
    (dismissing the argument that it is
    “possible to purchase controlled substances without actually or construc-
    tively possessing them” as lacking any merit (internal quotation marks
    omitted)).
    UNITED STATES v. MORALES-PEREZ                       1943
    James, 
    430 F.3d 1150
    , 1153-54 (11th Cir. 2005) (holding that
    a Florida statute which criminalizes the purchase or posses-
    sion of 28 grams or more of cocaine qualifies as a “serious
    drug offense” under the Armed Criminal Career Act).
    In James, the issue was whether a conviction under Florida
    statute § 893.135(1)(b)(1) falls within the definition of “seri-
    ous drug offense” under the Armed Career Criminal Act. Sim-
    ilar to the definition of drug trafficking offense under the
    Sentencing Guidelines, the Armed Career Criminal Act
    defines a serious drug offense as “an offense under State law,
    involving manufacturing, distributing, or possessing with
    intent to manufacture or distribute, a controlled substance
    . . . .” 18 U.S.C. § 924(e)(2)(A)(ii). The Florida statute pro-
    vided that “[a]ny person who knowingly sells, purchases,
    manufactures, delivers, . . . or who is knowingly in actual or
    constructive possession of, 28 grams or more of cocaine, . . .
    commits a felony of the first degree . . . .” FLA. STAT.
    § 893.135(1)(b)(1). Although the Florida statute contained the
    word “purchase” when the definition of “serious drug
    offense” did not, the Eleventh Circuit nonetheless found that
    the Florida statute fell within the broad definition of a serious
    drug offense for purposes of sentencing enhancement. 
    James, 430 F.3d at 1155
    .3 The court believed that if it held otherwise,
    it “would create an anomaly.” 
    Id. 3 The
    primary issue in James was whether the Florida statute satisfied
    the “[Armed Career Criminal Act’s] requirement that the offense involve
    the ‘intent to manufacture or distribute’ because the Florida statute does
    not have ‘as an element’ of the offense an intent to manufacture or distrib-
    
    ute.” 430 F.3d at 1153
    (internal citation omitted). The Eleventh Circuit
    held that it did have the required intent element because “Florida’s drug
    trafficking statute necessarily infers an intent to distribute.” 
    Id. at 1155.
    Although it did not directly address the effect of the Florida statute includ-
    ing “purchase” as a means of violating the statute, the Eleventh Circuit
    found that the Florida statute categorically qualified as a serious drug
    offense. I find this to be persuasive and analogous to the California statute
    at issue here.
    1944            UNITED STATES v. MORALES-PEREZ
    In this case, the majority creates an anomaly by holding
    that a conviction for the purchase of cocaine base with the
    intent to sell does not qualify as a drug trafficking offense
    under the Sentencing Guidelines. But, under both federal and
    California law, it is the act completed with the intent to sell
    that differentiates simple possession of a small quantity for
    personal use from possession with intent to distribute. Further,
    the term “possession,” as it is used in the Sentencing Guide-
    lines to define a drug trafficking offense, encompasses con-
    structive as well as actual possession. 
    Palacios-Quinonez, 431 F.3d at 477
    ; see also United States v. Smith, 
    962 F.2d 923
    ,
    929 (9th Cir. 1992) (“Possession of a controlled substance
    with intent to distribute may be either constructive or actual.”
    (citing United States v. Disla, 
    805 F.2d 1340
    , 1350 (9th Cir.
    1986))); United States v. Batimana, 
    623 F.2d 1366
    , 1369 (9th
    Cir. 1980) (holding that possession of a controlled substance
    under 21 U.S.C. § 841(a)(1) may be actual or constructive).
    California construes its drug trafficking laws similarly. See
    
    Showers, 68 Cal. Rptr. at 644
    (“Possession may be actual or
    constructive.”). If a person can be convicted of possession
    with intent to sell when he exhibits only constructive posses-
    sion, then logically, constructive possession with intent to sell
    must also qualify as a drug trafficking offense under the Sen-
    tencing Guidelines.
    The majority argues that a person can purchase something
    without actually obtaining possession of that item, and that if
    we construe the statute any differently, we would “divest the
    purchase alternative of its independent meaning.” Maj. op.
    1937. However, “a completed purchase transfers the ‘legal’
    right to control the substance from the seller to the purchaser
    or his agents.” 
    Palacios-Quinonez, 431 F.3d at 474
    . There-
    fore, because a purchaser has the legal right to control the pur-
    chased item, he has also obtained constructive possession of
    that item.
    The California courts have never held that someone can
    purchase contraband without ever obtaining possession. In
    UNITED STATES v. MORALES-PEREZ             1945
    Armstrong v. Superior Court, 
    217 Cal. App. 3d 535
    (Ct. App.
    1990), the California Court of Appeal found no constructive
    possession when the defendant “entered into and fulfilled all
    terms of an agreement to purchase the contraband from gov-
    ernment agents.” 
    Id. at 538.
    Importantly, in that case the law
    enforcement agents never intended to give up their right to
    control the contraband to the defendant and the purchase was
    never completed. 
    Id. Thus, the
    defendant never obtained the
    “right to control.” Unlike § 11351.5, the statute at issue in
    Armstrong did not criminalize the purchase with intent to sell,
    and the Armstrong court refused to decide whether the defen-
    dant’s actions in that case constituted a purchase rather than
    an attempted purchase. See 
    id. at 540
    n.2; see also Palacios
    
    Quinonez, 431 F.3d at 474-75
    . The California court did not
    need to address the issue, and by refusing to do so, it did not
    implicitly find that a defendant who never possesses contra-
    band can nonetheless be prosecuted for purchasing the contra-
    band. See 
    Palacios-Quinonez, 431 F.3d at 475
    .
    More to the point, under California law, a defendant who
    purchases contraband with the intent to sell necessarily has
    constructive possession of the contraband. A defendant “has
    constructive possession when he maintains control or a right
    to control.” 
    Showers, 68 Cal. Rptr. at 644
    ; see also California
    Jury Instructions — Criminal 12.01 (“ ‘Constructive posses-
    sion’ does not require actual possession but does require that
    a person knowingly exercise control over or right to control
    a thing, either directly or through another person or per-
    sons.”). Once the purchase is completed, the purchaser
    becomes the owner of the purchased property. In other words,
    the purchaser obtains the “right to control” that property and,
    hence, has constructive possession of it. See United States v.
    Johnson, 
    187 F.3d 1129
    , 1134 (9th Cir. 1999) (defining con-
    structive possession as the “ownership, dominion or control
    over the contraband” (emphasis added) (internal quotation
    marks and citation omitted)).
    1946               UNITED STATES v. MORALES-PEREZ
    Furthermore, when the purchase requirement is combined
    with the intent to sell element of the statute, it is clear that the
    purchaser has the requisite right to control the contraband. A
    defendant’s sentence cannot be enhanced for a prior “drug
    trafficking” conviction if that conviction required mere pos-
    session or purchase of contraband. United States v. Herrera-
    Roldan, 
    414 F.3d 1238
    , 1240 (10th Cir. 2005) (holding that
    a Texas statute that criminalized the mere possession, not pos-
    session with intent to distribute, did not categorically qualify
    as a drug trafficking offense under the Sentencing Guide-
    lines). However, the California statute requires more than
    simple possession or a purchase; it also requires, as an ele-
    ment of the crime, that the defendant have the intent to dis-
    tribute. Cf. United States v. Benitez-Perez, 
    367 F.3d 1200
    ,
    1240 (9th Cir. 2004) (holding that a Nevada statute “which
    provides that ‘it is unlawful for a person to possess for the
    purposes of sale’ . . . any controlled substance” categorically
    qualified as a drug trafficking offense). If it can be proved that
    the defendant had the intent to sell the contraband, it follows
    that the defendant had the right to control that item, and is
    “trafficking” in that commodity.4
    By correctly holding that this statute categorically qualifies
    as a drug trafficking offense under the Sentencing Guidelines,
    we would not be neglecting the “cardinal principle of statu-
    tory construction that [we] must give effect, if possible, to
    every clause and word of a statute.” Williams v. Taylor, 
    529 U.S. 362
    , 404 (2000). A purchaser of an item acquires the
    “right to control,” or an ownership interest in the purchased
    item through a transfer from a third party. 
    Palacios-Quinonez, 431 F.3d at 476
    n.6. By separating purchase and possession,
    4
    In comparison, a person who is ordered to purchase an item for a third
    party may never obtain actual or constructive possession of that item.
    However, such a situation would not result in a conviction under this stat-
    ute. Under § 11351.5, a defendant must purchase the contraband with the
    intent to sell. Therefore, the defendant is not merely purchasing the contra-
    band for a third party; he is purchasing the contraband to resell it. In order
    to resell that contraband, he must have some “right to control.”
    UNITED STATES v. MORALES-PEREZ              1947
    the California statute merely makes it clear that possession
    with intent to sell is enough, as it is under federal law. Cf. 21
    U.S.C. § 841(a)(1). A defendant does not necessarily have to
    purchase the drugs (acquire them through transfer) in order to
    be convicted. Rather, a defendant may obtain possession by
    another means, such as by manufacturing, stealing, or finding
    the contraband. 
    Palacios-Quinonez, 431 F.3d at 476
    n.6.
    The distinction becomes even more evident when it is con-
    sidered in the context of joint possession. In California, pos-
    session of contraband “can be predicated upon a showing of
    nonexclusive or joint possession.” People v. Saldana, 
    157 Cal. App. 3d 443
    , 460 (1984). Therefore, although a third
    party may have purchased the contraband, the purchase by a
    third party does not preclude prosecuting a defendant who is
    in actual or constructive possession of that same contraband
    without having actually purchased it himself.
    The district court got it right. A common sense reading of
    the California statute leads to only one logical conclusion: it
    is a drug trafficking offense. A defendant who completes the
    purchase of contraband with the intent to resell it has obtained
    the “right to control” or sell that contraband. He has posses-
    sion. In federal court, Morales-Perez would have been con-
    victed of either possession with intent to distribute or
    attempted possession with intent to distribute. Both are
    offenses that fall within the definition of a drug trafficking
    offense in the Sentencing Guidelines. Consequently, a convic-
    tion under California Health and Safety Code § 11351.5 cate-
    gorically qualifies as a predicate drug trafficking offense and
    the district court correctly enhanced the federal sentence by
    16 levels under U.S.S.G § 2L1.2(b)(1)(A). I respectfully dis-
    sent.