BLOG BULLETS:

• The Ninth Circuit has granted en banc review in a case raising the question of whether the California drug statutes, which have already been held to be overbroad under the categorical approach, are indivisible so the modified categorical approach can’t be used.
• One issue presented in this case is whether the California sale/transportation statutes, which until recently included transportation for personal use, are indivisible because the jury doesn’t have to unanimously agree on which form of conduct the defendant engaged in.
• This wouldn’t prevent the consideration of possession for sale convictions, but another issue presented in this case is whether the California drug statutes are indivisible because the jury doesn’t have to unanimously agree on the type of controlled substance, which would preclude consideration of most possession for sale convictions in addition to sale/transportation convictions.

 

NOW THE BLOG:

This has already been up on several CJA e-mail chains, so it will be old news to some of you, but there’s some exciting news about divisibility challenges to the California drug statutes.  You may recall that a few weeks back, I put up a couple of posts about (1) some supplemental briefing a panel ordered sua sponte and some questions judges asked in the oral argument in that case that suggested some interest in en banc review of the question of the California drug statutes’ divisibility, and (2) even more exciting, an actual sua sponte call for a vote on whether to grant en banc review in another case presenting the issue.  (See “Mathis May Open Up More Doors Than You Think” and “An Update on Mathis’s Effect on the Ninth Circuit Case Law Holding the California Drug Statutes Divisible” in the August 2016 link at the right.)

The exciting news is that the Ninth Circuit did vote to take the issue en banc – in the order attached here.  The statute at issue in that case is a sale/transportation statute, which you may recall from prior posts (see “In Case You Were Scoffing at Those Prior Posts . . .” in the May 2016 link at the right and the earlier posts referenced in that post) doesn’t categorically qualify as a controlled substance offense under the guidelines because it included not just sale but – until it was amended in 2013 – mere transportation for personal use (as well as a number of other types of conduct, like importing into the state, furnishing, administering, and giving away).  So one of the issues presented in this case will be whether the statute requires jury unanimity on the type of conduct the defendant engaged in.  If it doesn’t, the sale/transportation statutes will be indivisible for that reason and the modified categorical approach can’t be used to bring them within the guidelines definition of controlled substance offense.

This won’t help us with convictions under possession for sale statutes, since those don’t apply to any personal use type of offense, but this en banc grant opens up another divisibility issue I’ve discussed in other prior posts.  The California drug statutes that aren’t focused on specific drugs like crack or marijuana – including the possession for sale statutes – don’t categorically qualify as controlled substance offenses under the guidelines because the California controlled substance schedules include substances that aren’t included in the federal controlled substance schedules.  See United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir. 2012) (discussed in “Some Good News and Some Bad News on Who Controls What’s a Controlled Substance” in the June 2012 link at the right).  This raises the question of whether the jury has to unanimously agree on the type of controlled substance, because if the jury doesn’t have to unanimously agree on the type of controlled substance, the drug statutes – including the possession for sale statutes – would be indivisible on that ground.  (For more on this argument, see “Mathis May Open Up More Doors than You Think” in the August 2016 link at the right, “Don’t Give Up on the Challenge to the California Drug Statutes’ Divisibility” in the April 2015 link, and “Still More on Descamps: An Application of Last Week’s Post” in the September 2013 link.)

As discussed in the later of these prior posts, there is a prior Ninth Circuit opinion against us on this issue – Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014) – but the court sitting en banc can reconsider that opinion.  The reasoning in Coronado is both brief and subject to question, as suggested by both Judge Hawkins’ concurring opinion suggesting en banc review in United States v. Ramirez-Macias, 584 Fed. Appx. 818 (9th Cir. 2014) (discussed in the “Don’t Give Up on the Challenge to the California Drug Statutes’ Divisibility” post) and a Tenth Circuit opinion in United States v. Trent, 767 F.3d 1046 (10th Cir. 2014) (discussed three weeks ago in the “Another Circuit Supports the Argument that the California Drug Statutes Aren’t Divisible” post in the September 2016 link at the right).  So we could win on this type of controlled substance divisibility issue in addition to the sale/transportation issue.

We’ll obviously have to wait and see, but you should be preserving this issue – and appellate rights – as long as this case is pending.  I’m told the case is set for oral argument the week of January 17, 2017, so we’ll hopefully hear something next year.