An Update on Mathis’s Effect on the Ninth Circuit Case Law Holding the California Drug Statutes Divisible

August 29, 2016
By Hanging Out with Carl Gunn

In a post I put up at the beginning of the month, I suggested the Supreme Court’s recent Mathis decision raised doubt about the Ninth Circuit’s holding in Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014), that the California drug statutes are divisible.  (See “Mathis May Open Up More Doors Than You Think” in the link at the right.)  I noted a Ninth Circuit panel had sua sponte ordered supplemental briefing on Mathis’s effect in a case set for argument later that week and summarized and linked a letter brief filed by Los Angeles DFPD Brianna Fuller on that question.  I offer this post as an update to that prior post.

First, there were a couple of interesting comments or questions during the oral argument in the case in which Brianna filed the supplemental brief (which I noted in a subsequent comment to that post but am now elevating to post status on its own).  The argument can be viewed on the Ninth Circuit’s website and is also linked here.  Judge Reinhardt asked at two points (approximate minute counters 12:25 and 22:15) whether the California law question should be certified to the state supreme court, and Judge Wardlaw asked (approximate minute counter 13:15) if the defense was suggesting the Court should follow Judge Hawkins’s concurrence in United States v. Ramirez-Macias, 584 Fed. Appx. 818 (9th Cir. 2014), which suggested there should be Ninth Circuit en banc review. So there’s some more evidence of judges giving serious consideration to the question.

Second, Brianna has informed me of perhaps even more serious consideration evidenced by an order in another case which was argued last December in front of Judges Reinhardt, Noonan, and Nguyen.  Chief Judge Thomas and the “En Banc Coordinator” stated in that order, which is linked here, that “[a] sua sponte call for hearing en banc has been made in this case.”  So there’s judges who are going even farther than just asking questions at oral argument.

What all this means is concededly reading tea leaves, but it certainly suggests Coronado may not be rock solid law.  It’s certainly worth preserving the issue to see how it all shakes out.