In my last post, I wrote about the categorical and modified categorical approaches to judging whether a prior conviction qualifies as an enhancement conviction under various federal sentencing enhancement statutes. One example of a potential argument that many might not think of can be found in two appeals I presently have pending in the Ninth Circuit and can also be found in a number of other appeals which have been taken by the Federal Defender office in San Diego, from which I got the idea and from which I borrowed briefing as a starting point in my cases. My appeals, which I coincidentally just argued today, are United States v. Alfonso Anorve-Verduzco, No. 11-50050, and United States v. Jose David Leal-Vega, No. 11-50065, and two of the multiple San Diego Federal Defender appeals, which were decided adversely, but on case-specific facts, areUnited States v. Pedro Sanchez-Zarate, No. 09-50462, unpublished memorandum disposition reported at 2010 WL 3989884, and United States v. Alonso Chavez-Gonzalez, No. 10-50615, unpublished memorandum disposition reported at 2011 WL 6322376.

The argument is this. While both California and federal statutes criminalize possession for sale of a “controlled substance,” their schedules defining “controlled substance” are not identical. In particular, California “controls” and hence includes within its possession of a “controlled substance” offense several substances which the federal government does not include within its “controlled substance” schedules. Those include, but are not necessarily limited to, a narcotic called acetylfentanyl, a non-narcotic drug called apomorphine, and both “optical” and “geometrical” isomers rather than just the “optical” isomers included in the federal schedules. The inclusion of acetylfentanyl is discussed in my briefs in the Anorve-Verduzco appeal and the inclusion of apomorphine and “geometrical” isomers is noted inUnited States v. Ruiz-Vidal, 473 F.3d 1072 (9th Cir. 2007), which offered them as just some examples of what the court characterized as “numerous substances,” id. at 1078.

When combined with application of the categorical approach, this means a California drug conviction doesn’t qualify as a prior conviction under federal drug conviction enhancement provisions unless the government can produce documents that satisfy the alternative, modified categorical approach which I also discussed in my last post. The government may be able to make that work in some cases, but it won’t be able to make it work in all cases, because (1) the records aren’t always there and (2) when the records are there, they don’t always say what the government needs them to say. For examples of debates about the modified categorical approach in specific cases, see the briefs in the cases I cite in the first paragraph, three of which are linked below; the briefs in the Ruiz-Vidal case cited above; and the briefs in the two other cases cited in the next paragraph.

Lest you think this argument is all pie in the sky dreaming, you should know that it has been explicitly accepted by the Ninth Circuit in three published immigration opinions – the Ruiz-Vidal I case cite above; the case of Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. 2009); and the case of S-Yong v. Holder, 600 F.3d 1028 (9th Cir. 2010). It hasn’t gotten a reversal in a criminal appeal that I’m aware of yet (someone please correct me about that if I’m wrong), but it hasn’t been rejected in a published opinion and most of the unpublished opinions, including the two San Diego cases I cite in the first paragraph above, have avoided the issue by using documents under the modified categorical approach to affirm the conviction or sentence. And at least one district judge in the Central District of California has accepted the argument – in my Leal-Vega andAnorve-Verduzco cases (which were in front of the same judge). The judge gave the lower sentence in only the Leal-Vega case because he found the government satisfied the modified categorical approach in theAnorve-Verduzco case, but he accepted the argument about the overbreadth in both cases, as reflected in the Anorve-Verduzcominute order attached here. The Connecticut Federal Public Defender has also had success with overbroad Connecticut controlled substance schedules – on a fairly regular basis, I’m told – and one example of that can be found in an unpublished district court opinion in Samas v. United States, No. 3:10-CV-422 (JCH) that’s available on Westlaw, at 2011 WL 221866, and Lexis, at 2011 U.S. Dist. LEXIS 5671.

The criminal law areas in which we can apply this argument are numerous, moreover. Think of all the federal statutory and guideline provisions which enhance a sentence based on prior drug convictions. In the statutes, there’s the Armed Career Criminal Act codified at 18 U.S.C. § 924(e) and the prior drug conviction enhancements in 21 U.S.C. § 841 and 21 U.S.C. § 960. There’s also the definition of “aggravated felony” that’s incorporated into the sentence enhancement for illegal reentry in 8 U.S.C. § 1326(b)(2) and which may have served as the basis for a deportation that can now be challenged as invalid underUnited States v. Mendoza-Lopez, 481 U.S. 828 (1987); for a brief making this last argument, see the brief in the Chavez-Gonzalezcase mentioned in the first paragraph, which is linked here. In the guidelines, there’s the illegal reentry guideline in § 2L1.2, the career offender guideline in § 4B1.1, and the firearm guideline in § 2K2.1. The government has tried to argue in myLeal-Vega andAnorve-Verduzco cases that the guidelines don’t use the federal definition of “controlled substance” and so the argument doesn’t apply to the guidelines, but that’s a major stretch for the reasons that are argued in the briefs in those cases.

So think about making this argument if your client’s sentence is being enhanced based on a California controlled substance conviction. If his or her sentence is being enhanced based on a prior controlled substance conviction in some other state, check that state’s controlled substance schedules to see if they’re also broader than the federal schedules. (The government claims the schedules are broader in every other state in the Ninth Circuit except Oregon.) We all know how draconian the various enhancements based on prior drug convictions are, so we’re talking about a great service to your client if you can make this argument work. For sample appellate briefs making the argument, see the San Diego brief linked here, which is what I initially worked off of, and my brief in the Leal-Vega case, which is linked here.