Lest You Had Any Doubt.

October 31, 2017
By Hanging Out with Carl Gunn


  • Remember that many state controlled substance schedules, including California’s, are broader than the federal controlled substance schedules, so convictions under those statutes don’t categorically qualify as drug offenses for federal enhancement purposes.
  • The general rules requiring a categorical approach apply to use of prior drug convictions to enhance statutory mandatory minimums for drug offenses just like they do to use of such prior convictions under the guidelines.
  • This means a drug prior from one of these states can be used to enhance a statutory mandatory minimum only if the state statute is divisible and the government has sufficient judicially noticeable documents to carry its burden under the modified categorical approach.



As you know if you’ve been reading this blog from the beginning – and hopefully know independently anyway – the California drug statutes, as well as those of a number of other states, include controlled substances that aren’t included in the federal controlled substance schedules.  (See “Some Good News and Some Bad News on Who Controls What’s a Controlled Substance” in the June 2012 link at the right and “Who Controls What’s a Controlled Substance?” in the April 2012 link.)  This means drug convictions in those states don’t qualify as federal drug offenses under the categorical approach to evaluating prior convictions and may or may not be subject to the modified categorical approach, depending on whether the particular drug statute at issue is “divisible” under Descamps v. United States, 133 S. Ct. 2276 (2013), and Mathis v. United States, 136 S. Ct. 2243 (2016).  (See “Some Hope Dashed on Drug Statute Divisibility, But Not All of It,” in the August 2017 link at the right, discussing a bad Ninth Circuit en banc opinion concluding the California drug statutes are divisible, but see the same post and also “A Glimmer of Hope (Maybe More than a Glimmer?) on the Indivisibility of Overbroad Drug Statutes” in the May 2016 link, “A Glimmer of Hope Glimmers Again” in the October 2016 link, and “Some Success in Arizona and Still Waiting in California,” in the February 2017 link, discussing several unpublished Ninth Circuit opinions concluding the Arizona drug statutes aren’t divisible.)

Most of the cases applying the categorical approach and/or the modified categorical approach, when it’s allowed, are considering the prior convictions for sentencing guidelines purposes or immigration removal hearing purposes.  But just in case you had any doubt, the same categorical approach rules apply to the use of prior convictions for enhancing statutory mandatory minimums under 21 U.S.C. § 841 and  21 U.S.C. § 851.  The Ninth Circuit just reiterated this two months ago in United States v. Ocampo-Estrada, ___ F.3d ___, 2017 WL 4250173 (Aug. 29, 2017).  It stated:

To determine whether [the defendant’s] conviction under California Health & Safety Code section 11378 would qualify as a federal felony drug offense [under 21 U.S.C. § 841(b)(1)(A)], we look to the statutory elements under which the offender was previously convicted, rather than the underlying conduct or facts giving rise to that conviction.  See United States v. Hollis, 490 F.3d 1149, 1157 (9th Cir. 2007), abrogated on other grounds by DePierre v. United States, 564 U.S. 70, 131 S. Ct. 2225, 180 L. Ed. 2d 114 (2011); accord United States v. Hernandez, 312 Fed. Appx. 937, 939 (9th Cir. 2009) (unpublished) (applying the categorical approach to the “felony drug offense” definition).  This analysis requires a categorical comparison between the predicate offense of conviction and the federal definition.

Ocampo-Estrada, 2017 WL 4250173, at *5.  The court then went on to consider whether the statute was divisible so the modified categorical approach could be applied; found it was divisible and so applied the modified categorical approach; but found the judicially noticeable documents that were available in that case failed to carry the government’s burden under the modified categorical approach.  See id. at *5-6.

So the categorical approach and all of its related rules about divisibility and the modified categorical approach apply equally when the prior drug conviction is being used to enhance a drug offense statutory mandatory minimum under Title 21.  Use this to challenge statutory mandatory minimums in addition to guidelines calculations.