Another Descamps Angle on a California Drug Statute

May 13, 2014
By Hanging Out with Carl Gunn


  • The California statutes governing sale of drugs are overbroad for purposes of the categorical approach because they include transportation for personal use in addition to sale.
  • The transportation/sale element isn’t divisible underDescamps because a jury doesn’t have to unanimously agree on whether the defendant sold or transported.
  • So the modified categorical approach can’t be used to save a California sale/transportation drug conviction.


I’m afraid I just can’t let go of Descamps; it’s the gift that keeps on giving. The additional gift I’m going to talk about today is a second reason one category of California drug statute isn’t divisible and so isn’t subject to the modified categorical approach. The argument comes courtesy of local Deputy Federal Public Defender Brianna Mircheff, whose motion making the argument is attached here.

You may recall a post last September noting that the California drug statutes – at least the vast majority of them – are overbroad because the California controlled substance schedules include substances that aren’t included in the federal controlled substance schedules. This means convictions under those statutes don’t qualify under the categorical approach as “drug trafficking” or “controlled substance” offenses under the sentencing guidelines. I also noted briefing in that post from another Los Angeles Deputy Federal Public Defender about why the controlled substance element isn’t divisible and so courts can’t go to the modified categorical approach to identify the particular controlled substance in the prior offense of conviction. (See “Still More on Descamps: An Application of Last Week’s Post” in the September 2013 link at the right.)

In the event this doesn’t work, Brianna’s briefing adds an additional non-divisibility argument. You’re hopefully aware that the California statutes which apply to sale of a controlled substance also include transportation for personal use, as well as a number of other alternative forms of conduct. This makes that element also overbroad and is another reason convictions under those statutes don’t categorically qualify as “drug trafficking” or “controlled substance” offenses under the guidelines. See, e.g., United States v. Kovac, 367 F.3d 1116, 1119-20 (9th Cir. 2004); United States v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir. 2001) (en banc); United States v. Martinez, 232 F.3d 728, 735 (9th Cir. 2000); United States v. Casarez-Bravo, 181 F.3d 1074, 1077-78 (9th Cir. 1999). The statutes do list alternatives, however, and one of those is sale. Prior to Descamps, the Ninth Circuit regularly used the modified categorical approach to bring these convictions within the guidelines definition.

Brianna’s briefing demonstrates that this shouldn’t be allowed after Descamps because the sale/transportation element isn’t divisible. She first points out that the pattern elements instruction for the sale/transportation offense includes language allowing a jury to find any one of the various forms of conduct criminalized in the statutes. She then points to at least a couple of California cases suggesting there’s no requirement that the jury unanimously agree on what the conduct was in the particular case before it. This failure to require unanimity makes the list of forms of conduct in the statute a list of alternative “means” rather than a list of alternative “elements,” and that makes the statute non-divisible. For further discussion of this “means”/“elements” distinction, see both Brianna’s briefing and the discussions in both the September post noted above and the more recent April 15 post on “More on What’s a Divisible Statute Under Descamps” (also available in the link at the right).

So now you have two arguments about why the California sale/transportation statutes aren’t divisible. And you only need one. What a wealth of riches!