A Glimmer of Hope Glimmers Again.

October 4, 2016
By Hanging Out with Carl Gunn


  • Another unpublished Ninth Circuit opinion has held the Arizona drug statutes overbroad and indivisible and so not subject to the modified categorical approach.
  • You can look to this case, along with another similar case earlier this year, for guidance in challenging the divisibility of other states’ drug statutes.



I’ve put up several posts over the last couple of months about keeping hope alive on the argument that California drug convictions can’t qualify as “controlled substance offenses” or “drug trafficking offenses” under the sentencing guidelines because (1) the California controlled substance schedules are broader than the federal controlled substance schedules, which the Ninth Circuit has already recognized, and (2) the modified categorical approach can’t be applied because the California drug statutes don’t require jury unanimity on the type of controlled substance, that makes them indivisible, and so they aren’t subject to the modified categorical approach.  There’s Ninth Circuit precedent against us, but its reasoning is weak, and the court has now granted en banc review in another case that will open the existing precedent to reconsideration.  (See “Exciting News About Divisibility Challenges to the California Drug Statutes!” in the September 2016 link at the right and the earlier posts referenced in that post.)

Possibly lost in my focus on California is some success our colleagues are having in Arizona.  I posted about one under the radar case last May in which the Ninth Circuit issued an unpublished memorandum opinion holding that (1) the Arizona controlled substance schedules are also broader than the federal controlled substance schedules and (2) Arizona law – unlike the court’s view of California law to date (which will hopefully change with the upcoming en banc case) – doesn’t require jury unanimity on the type of controlled substance, so the Arizona drug statutes aren’t divisible and aren’t subject to the modified categorical approach. The bottom line then being that most or many, if not all, Arizona drug convictions can never qualify as “controlled substance offenses” or “drug trafficking offenses” under the sentencing guidelines.  (See “A Glimmer of Hope (Maybe More than a Glimmer?) on the Indivisibility of Overbroad Drug Statutes” in the May 2016 link at the right, discussing Vera-Valdevinos v. Lynch, 649 Fed. Appx. 597 (9th Cir. 2016).)

Well, the glimmer of hope I spoke of in that post has glimmered again – in another unpublished memorandum opinion.  That opinion, filed September 28, 2016, is United States v. Sanchez-Fernandez, ___ Fed. Appx. ___, 2016 WL 5404056 (9th Cir. Sept. 28, 2016).  It, like the prior unpublished opinion in Vera-Valdevinos, relies on the pattern Arizona criminal jury instructions to conclude that Arizona juries are not required to make a finding of what drug a defendant possessed.  That of course makes the statute indivisible, prevents a sentencing court from looking at the court records for the prior conviction, and thereby prevents the court from treating the prior conviction as a “drug trafficking offense” or “controlled substance offense” under the guidelines.  So we now have two opinions, albeit unpublished ones, that exclude Arizona drug convictions from consideration under the guidelines.

The Arizona cases don’t directly apply to other states’ statutes, but you can certainly look to them and point to them for guidance.  For other states, look at the pattern jury instructions in those states – and look to case law as well, like the California cases cited in some of the prior posts and sample briefing on the California drug statutes.  If we’re really lucky, the bad California case will go away with the pending en banc review.  But in the event it doesn’t, these Arizona cases show the question has to be considered state by state and that a bad result in one state, like we presently have in California, doesn’t necessarily carry over to other states.