Some Good News and Some Bad News on Who Controls What’s a Controlled Substance

June 5, 2012
By Hanging Out with Carl Gunn


  • Good news: Most California drug convictions don’t qualify for federal drug conviction enhancements under the “categorical approach.”
  • Bad news: The government may be able to get you under the “modified categorical approach.”
  • But the government may not be able to do that in your case, so put them to the test.


Two months ago in April I put up a post (see “Recent Posts” in the column to the right) that I called “Who Controls What’s a Controlled Substance?” It followed up on an earlier post about the “categorical approach” and “modified categorical approach” to judging whether a prior conviction qualifies as an enhancement conviction under various federal sentencing enhancement statutes (see the preceding post entitled “Enhance Your Litigation Skills by Challenging Enhancements”). The basic rule underlying this approach is that one can’t look to the “actual facts” of what the defendant “really did” in the prior case, but (1) has to – under the categorical approach – compare the statutory elements of the prior conviction offense and the federal enhancement definition the government’s trying to apply and (2) in the case of a categorically overbroad statute, may be able to – under the modified categorical approach – take a second step of looking to certain court records to see if they narrow the prior conviction down sufficiently for it to qualify.

The post on controlled substance convictions specifically made the point that convictions under most of the California drug offense statutes shouldn’t qualify as “controlled substance offenses” or “drug trafficking offenses” under the various federal enhancement statutes and guidelines because the California controlled substance schedules include substances that aren’t included in the federal controlled substance schedules. I suggested this could open up a strong challenge to enhancements based on California drug convictions. I also noted that the issue was pending in front of the Ninth Circuit.

Well, there’s now some good news and some bad news. The good news is that the Ninth Circuit has agreed with us on the categorical approach issue. It just held in United States v. Leal-Vega (opinion attached here) that “[California Health and Safety Code] Section 11351 is categorically broader than the Guidelines definition of ‘drug trafficking offense’ because it criminalizes possession or purchase of certain substances that are not covered by the [federal Controlled Substance Act” and that “[a]ccordingly, . . . Section 11351 does not categorically qualify as a ‘drug trafficking offense’ under U.S.S.G. § 2L1.2.” Slip op. at 5966. The opinion does a great job of going through various arguments the government made in its brief and explaining why they don’t fly. And the reasoning in Leal-Vega will extend to most other California drug statutes and probably all other federal drug conviction enhancement provisions. So this is some really good news.

There is some bad news that goes with it, though – at least for Mr. Leal-Vega. The court went on to hold that the court records the government dug up and presented for his prior conviction – a charging document that specifically described the controlled substance in Count 1 as “tar heroin” and an abstract of judgment saying that Mr. Leal-Vega pled guilty to that count – were sufficient to satisfy the requirements of the modified categorical approach and make the conviction qualify as a “drug trafficking offense” under that approach.

Still, the modified categorical approach is a case-specific approach that will work for the government in some cases and not work for it in others. The issue is definitely one you should push if the government’s not giving you a reason not to, and there will be some cases where we can prevail. Witness the immigration cases which Leal-Vega followed on the categorical approach issue, in which two of the three respondents prevailed on the modified categorical approach issue as well. And witness all the other cases out there in which defendants have sometimes prevailed even under the modified categorical approach.

All in all, we’ve taken a big first step and we’ll have to take the second steps on a case-by-case basis.