A Glimmer of Hope (Maybe More than a Glimmer?) on the Indivisibility of Overbroad Drug Statutes.

May 24, 2016
By Hanging Out with Carl Gunn


  • Ninth Circuit opinions over the past several years have found multiple state controlled substance schedules to be broader than the federal controlled substance schedules, which means the state drug convictions don’t qualify as federal drug priors under the categorical approach.
  • Several of the Ninth Circuit opinions have saved the state convictions by finding the statutes divisible and using state court records under the modified categorical approach.
  • A recent unpublished opinion breaks this pattern and finds the Arizona drug statutes aren’t divisible and so the modified categorical approach can’t be used for Arizona drug convictions.



Several past posts have discussed the questions of whether state drug trafficking convictions fail to qualify as federal drug enhancement priors under the categorical approach because of states’ broader controlled substance schedules; whether the statutes are indivisible under Descamps v. United States, 133 S. Ct. 2276 (2013), which would prevent the modified categorical approach from being used; and whether that means the state drug convictions can’t support guidelines or statutory enhancements for prior drug convictions.  (See “Some Good News and Some Bad News on Who Controls a Controlled Substance” in the June 2012 link at the right, “Don’t Give Up on the Challenge to the California Drug Statutes’ Divisibility” in the April 2015 link, and “The Supreme Court’s Half Step Toward Supporting the Ninth Circuit on Overbreadth of Controlled Substance Statutes” in the July 2015 link.)  The Ninth Circuit has recognized the controlled substance schedules in at least California, Hawaii, and Nevada are broader than the federal schedules, see Madrigal-Barcenas v. Lynch, 797 F.3d 643, 645 (9th Cir. 2015); Ragasa v. Holder, 752 F.3d 1173, 1176 (9th Cir. 2014); United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir. 2012), and the government asserted in its opening brief in the Leal-Vega case that this is true of every Ninth Circuit state except for Oregon, see Government’s Opening Brief at 26-27, United States v. Leal-Vega, 680 F.3d 1160 (9th Cir. 2012) (No. 11-50065), ECF No. 4, linked hereSee also Mellouli v. Lynch, 135 S. Ct. 1980, 1984 (2015) (noting broader sweep of Kansas controlled substance schedules).

We haven’t been able to take the fullest advantage of this overbreadth because (1) the Ninth Circuit has been finding the criminal drug statutes based on these controlled substance schedules to be divisible, see United States v. Calder, 618 Fed. Appx. 878, 879 (9th Cir. 2015) (unpublished); Coronado v. Holder, 759 F.3d 977, 985 n.4 (9th Cir. 2014); Ragasa, 752 F.3d at 1176 (dictum); but cf. Madrigal-Barcenas, 797 F.3d at 645 (remanding for immigration court to consider in first instance), and (2) court records often – perhaps even usually – identify a federally controlled substance, see, e.g., Coronado, 759 F.3d at 985; Calder, 618 Fed. Appx. at 879; but see Ragasa, 752 F.3d at 1176.

What occasions this post is a recent unpublished opinion that breaks this pattern.  The opinion is Vera-Valdevinos v. Lynch, ___ Fed. Appx. ___, 2016 WL 2731951 (9th Cir. May 11, 2016) (unpublished).  The opinion began its analysis by noting the government had conceded the Arizona controlled substance schedules, like those of the other states the court has considered, include substances not included in the federal controlled substance schedules and so are overbroad.  See id. at *1.   The opinion then broke away from the pattern of the other cases, however, by holding that the criminal drug statutes based on the Arizona schedules were not divisible.  See id.   It reached this conclusion by relying on the state model jury instructions, see id., which the Ninth Circuit has recognized generally as one thing to consider in deciding divisibility, see Ramirez v. Lynch, 810 F.3d 1127, 1135, 1137-38 (9th Cir. 2016), and which it specifically considered in determining the divisibility of the California drug statute in the Coronado case, see id., 759 F.3d at 985 n.4.  The state model jury instructions in Arizona, unlike the California jury instructions pointed to in Coronado, don’t require the jury to agree on the type of controlled substance.  See Vera-Valdevinos, 2016 WL 2731951, at *1.  It follows that the Arizona drug statutes are not divisible and so the modified categorical approach can’t be used.

This is wonderful for two reasons.  To the extent other panels follow the opinion (which is only persuasive since it’s unpublished), it means Arizona drug convictions based on statutes tied to the overbroad controlled substance schedules – which is presumably most, if not all, of them – can’t be used as the basis for a prior drug conviction enhancement.  Secondly, the opinion provides an example to give courts considering other states’ drug statutes that haven’t yet been considered.  It’s Vera-Valdevinos that should be followed if the model jury instructions in the other state are more like Arizona’s – and/or if there’s case law suggesting there doesn’t need to be jury agreement on the type of controlled substance.  We now have an actual example of an opinion, not just our logical arguments and reasoning.