Some Hope Dashed on Drug Statute Divisibility, But Not All of It.

August 22, 2017
By Hanging Out with Carl Gunn


  • The Ninth Circuit has held the California drug statutes are divisible in both the controlled substance element and the sale/transportation conduct element.
  • The question remains open in other states with overbroad drug statutes, however, because resolution of the question depends on whether state law requires jury unanimity on the element and that will vary from state to state; as an example, several unpublished cases have held the overbroad Arizona drug statute is not divisible.
  • Also, remember that divisibility only means the court can go to the modified categorical approach, and that works only if the government or probation office can produce court records identifying the substance and conduct.



You may recall a couple of excited blog posts I put up over the last year about the Ninth Circuit having granted en banc review on the question of the California drug statutes’ divisibility, both in the type of controlled substance element, which is overbroad because the California controlled substance schedules include substances the federal controlled substance schedules don’t, and in the conduct element, which is – or was – overbroad because the California “sale” statute – at least until recently – included, among other things, transportation for personal use.  (See “Exciting News About Divisibility Challenges to the California Drug Statutes!” in the September 2016 link at the right, and “Some Success in Arizona and Still Waiting in California” in the February 2017 link.)  Much to my disappointment, there was an adverse decision issued the end of last month, in which the court held the California statutes were divisible in both the type of controlled substance element and the type of conduct element.  See United States v. Martinez-Lopez, ___ F.3d ___, No. 15-50014, 2017 WL 3203552 (9th Cir. July 28, 2017) (en banc).  It’s pretty much a total loss on California drug statute divisibility.

Still, remember the question is an independent question in each state with overbroad drug statutes, which includes at least some other states in the Ninth Circuit and may well include most, as I noted in another post back in May of 2016.  (See “A Glimmer of Hope (Maybe More than a Glimmer?) on the Indivisibility of Overbroad Drug Statutes” in the May 2016 link at the right.)  The holding in Martinez-Lopez was based on state court authority which the opinion read as requiring jury unanimity on both the type of controlled substance and the type of conduct.  Whether other states’ overbroad statutes are divisible will depend on whether there’s authority in those states requiring jury unanimity.  If there’s not – and especially if there’s authority affirmatively suggesting jury unanimity isn’t required – you can argue those states’ overbroad drug statutes aren’t divisible, and so drug convictions in those states can’t be considered even though California drug convictions can be.

The best presently existing example of this that I’m aware of is Arizona.  As noted in several other prior posts (see both the “A Glimmer of Hope (Maybe More than a Glimmer?) on the Indivisibility of Overbroad Drug Statutes” and the “Some Success in Arizona and Still Waiting in California” posts, as well as “A Glimmer of Hope Glimmers Again” in the October 2016 link), there are multiple cases, albeit unpublished, in which the Ninth Circuit or Arizona district courts have held the Arizona drug statutes indivisible because Arizona doesn’t require jury unanimity on the type of controlled substance.  And in the first opinion, the court relied on affirmative Arizona authority – in the form of Arizona model jury instructions.  See Vera-Valdevinos v. Lynch, 649 Fed. Appx. 597, 598 n.1 (9th Cir. 2016) (unpublished) (citing Ariz. Rev. Jury Instructions (Criminal), 34.0871 (3d ed.)).

So the Martinez-Lopez issue about drug statute divisibility is still open for drug convictions from other states.  Also, don’t forget that divisibility doesn’t guarantee the government, probation office, and/or court can use a drug conviction.  It just allows a court to use the modified categorical approach and try to find court records.  The government and/or probation office still has to find and produce court records that show the controlled substance was a controlled substance in the federal schedules and the conduct wasn’t transportation for personal use.  While there are usually some records specifying the controlled substance, there often aren’t records excluding transportation for personal use.  And even the records on the type of controlled substance are sometimes conflicting or ambiguous, so watch for arguments to be made even on that element.