”But first, I better get a little high”: Defending clients with drug predicates

Kara

Kara Hartzler, Federal Defenders of San Diego, Inc.

Five provisions where a drug prior may affect a federal case:

Armed Career Criminal Act

§ 851 enhancement

USSG § 4B1.2 (career offender)

USSG § 2K2.1 (firearms)

Collateral attacks under § 1326(d)

What do these provisions have in common?

All are tethered to a federal definition and so require a “painful ascent of Mount Taylor”—also known as the categorical approach.Ortega-Lopez v. Lynch, 834 F.3d 1015, 1018 (9th Cir. 2016) (Owens, J.)

The Goal of this Presentation:

Figure out all the tedious, annoying arguments we can raise under the categorical approach that will: discourage the AUSA from bringing the

enhancement convince the judge not to apply it, and create an issue for appeal

Two questions to ask when applying the categorical approach to drug predicates

Is the statute overbroad? (does it reach conduct not covered by the CSA?)

Is the statute divisible? (would a jury have to agree on the element that rendered it overbroad?)

Ways the statute can be overbroadI. Drug typeII. Mens reaIII. Actus reus

How can drug type be overbroad?Two ways:

1. The state criminalizes substances that the federal Controlled Substances Act (CSA) does not.

I. DRUG TYPE

1. Fed list vs. State list

STATE LIST OF DRUGS

CSA LIST OF DRUGS

How can drug type be overbroad?Two ways:

1. The state criminalizes substances that the federal Controlled Substances Act (CSA) does not.

2. The state defines a particular substance differently than the feds

I. DRUG TYPE

2. Fed drug vs. State drug

STATE DEFN OF METH

FEDERAL DEFN OF METH

But does the categorical approach apply to ACCA?• The Second, Fifth, Eleventh, and D.C.

Circuits do not apply the categorical approach to the definition of a “serious drug offense” under ACCA

• The Third, Sixth, and Ninth Circuits apply the categorical approach

• In Shuler v. U.S., the Supreme Court will resolve this circuit split

Drugs on state lists but not federal list

I. DRUG TYPE (part one)

Jimson weed Salvia Chorionic Gonadotropin Khat

Fenfluramine(§ 851 only)Benzylfentanyl Thenylfentanyl

PLUS:• 1–(3–

[trifluoromethylphenyl]) piperazine (“TFMPP”)

• Vicks inhaler• Full mj plant• Propylhexedrine• Scopalamine• Butyl Nitrite• Ephedrine

California, Connecticut, Colorado, Delaware, Florida, Idaho, Louisiana, New York, North

Carolina, Oklahoma, and Pennsylvania

At some point, all of the following states criminalized HCG:

Connecticut, Florida, Georgia, Hawaii, Indiana, Idaho, Illinois, Iowa, Kansas, Maryland,

Missouri, Montana, Nebraska, Ohio, Rhode Island, Tennessee, Utah, Virginia, West Virginia,

and Wyoming

At some point, all of the following states criminalized benzylfentanyl and thenylfentanyl:

“Not all of the controlled substances listed in the Missouri drug schedules, however, appear in the federal schedules. Missouri forbids the possession with intent to deliver salvia divinorum, id. § 195.017.2(4)(jj), and ephedrine, id. § 195.017.8(6); the federal statute does not. See 21 U.S.C. §§ 802(6), 812.”

Martinez v. Sessions, 893 F.3d 1067, 1070 (8th Cir. 2018), cert. denied sub nom. Bueno-Muela v. Whitaker, 139 S. Ct. 1198, 203 L. Ed. 2d 204 (2019)

If your state criminalizes a drug not on the CSA, the statute is overbroad.

At a minimum, the record must make it clear that client was convicted of a federally controlled substance.

But what if the statute is overbroad and indivisible? i.e., what if the jury need not

agree on the specific type of drug?

METH!SALVIA!

A indivisible statute can never satisfy the federal drug definition.

New York P.L. §220.31: person “knowingly and unlawfully sells a controlled substance.”

New York P.L. § 3306 defines “controlled substances” to include chorionic gonadotropin.

“If some jurors believed that a defendant had sold cocaine, and others believed that he had sold heroin, they could still agree that he had sold ‘a controlled substance,’ and issue a guilty verdict.”

Harbin v. Sessions, 860 F.3d 58, 65 (2d Cir. 2017)

Does this ever really happen? Unlawful possession of a controlled substance in

violation of 720 ILCS 570/402(c) is indivisible! Najera-Rodriguez v. Barr, 926 F.3d 343 (7th Cir. 2019)

“The text and structure do not show that the identity of the controlled substance is an element under § 402(c).”

“If federal courts interpret state law incorrectly, by finding that state laws include essential elements that state courts have not treated as such, we could mistakenly cast doubt on the much higher volume of state criminal prosecutions under those same state statutes.”

How does it work in practice?

Step One – Overbroad? Ariz. Rev. Stat. § 13-3408(A)(7) criminalizes various conduct

involving “a narcotic drug” Ariz. Rev. Stat. § 13-3401(20), defines “narcotic drugs” to

include Benzylfentanyl and Thenylfentanyl

Step Two – Indivisible? (Jury instructions)

Step Two – Indivisible? (State case law)

“Thus, even if the jury convicted Defendant without agreeing on which dangerous drug was involved in the offense, Defendant was not denied his constitutional right to a unanimous jury verdict.” State v. Prescott, No. 1 CA-CR 15-0188, 2016 WL 611656, at *2 (Ariz. Ct. App. Feb. 16, 2016)

Step Two – Indivisible? (Drug statute)

Statute provides different treatment for meth, counterfeit substances, and steroids.

But apart from these exceptions, “there is no indication that possession of one substance versus another would call for a different penalty or any other differential treatment.”

Najera-Rodriguez, 926 F.3d 343 (7th Cir. 2019)

Obscure drugs for the win!Vera-Valdovinos v. Lynch, 649 F. App’x 597 (9th Cir. 2016) (noncitizen not deportable under Ariz. Rev. Stat. § 13-3408(A)(7) because statute criminalizes offenses involving Benzylfentanyl or Thenylfentanyl and is indivisible)

Madrid-FarFan v. Sessions, 729 F. App’x 621 (9th Cir. 2018) (noncitizen eligible for discretionary relief because AZ conviction could have been for Benzylfentanyl or Thenylfentanyl)

US v. Castro-Cruz, 2018 WL 566824 (D. Colo. Jan. 21, 2018) (§ 13-3408 doesn’t qualify for § 851 enhancement)

United States v. Epps, 322 F. Supp. 3d 299, 307 (D. Conn. 2018) (Connecticut schedule prohibiting benzylfentanyl and thenylfentanyl not divisible)

Are Missouri drug schedules divisible?

Tenth Circuit looked at:• Two state court decisions• Penalties• Statutory structure• Jury instructions

But decided it was an element.

Martinez v. Sessions, 893 F.3d 1067 (8th Cir. 2018)

But wait – what if the drug itselfis overbroad?

2. Fed drug vs. State drug

STATE DEFN OF METH

FEDERAL DEFN OF METH

Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018)

CA defines meth to include “its salts, isomers, and salts of its isomers”

Feds define meth to include “its salts, isomers, and salts of its isomers”

Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018)

BUT!California defines “isomer” to include both

“optical and geometrical” isomers Feds define “isomer” to include only “optical

isomers”So statute is overbroad because geometrical

isomer of meth is illegal under state but not federal law

But is it indivisible?

GEOMETIC ISOMER!

OPTICAL ISOMER!

Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018)

Because statute is overbroad and indivisible, a California conviction for meth can never be a drug predicate

UPDATE: the Ninth Circuit has since de-published Lorenzo, and the government’s pesky scientists are now arguing that meth doesn’t contain “geometric isomers”

Let’s go crazy!“L-meth” in Vick’s vaporub (but see

U.S. v. Vega-Ortiz, 822 F.3d 1031 (9th Cir. 2016)

TX cocaine contains “positional isomers” while federal cocaine definition does not

FL marijuana includes stalks and seeds of plant, while federal marijuana definition does not

United States v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc) (most drug offenses in California Health & Safety Code are divisible)

United States v. Henderson, 841 F.3d 623 (3d Cir. 2016) (PA schedule subject to modified categorical approach)

United States v. Pittman, 736 F. App'x 551, 555 (6th Cir. 2018) (holding that Michigan courts treat the specific substance as an element of the offense)

Martinez v. Sessions, 893 F.3d 1067, 1073 (8th Cir. 2018) (Missouri drug schedule is divisible based on the drug involved)

§ 851: A Special Kind of Hell

§ 851: A Special Kind of Hell

If a person is convicted under § 841 and has a prior “serious drug felony,” the min-man may rise to 10, 15, or 25 years. A “serious drug felony” is defined as:

Offense under federal or state law

Of a federally-controlled substance

With a stat max of 10 years or more

Involving manufacturing, distributing, or possession with intent to distribute

Defendant served at least 12 months

And was released within 15 years of instant offense

§ 851 Appellate Hail Mary

§ 851 requires that the court inquire whether the defendant “affirms or denies that he has been previously convicted as alleged in the information”

If the district court fails to do this, it is not necessarily harmless error. See U.S. v. Rodriguez, 851 F.3d 931(9th Cir. 2017) (sentence reduced from 600 to 450 months)

With all this talk of isomers and chemistry, you may be thinking…

So let’s get back to the language we’re familiar with.

MENS REA We’re making Glacier-Freeze

Gatorade, right?

MENS REA OVERBREADTH

STATE MENS REA FOR DRUG OFFENSE

FED MENS REA FOR DRUG OFFENSE

Mens rea-overbreadth

Some state drug crimes don’t require knowledge that the substance was illegal at all

In McFadden v. United States, 135 S. Ct. 2298 (2015), SCOTUS held that mens rea of illegality is necessary for § 841

Argue that ACCA, career offender, etc. all require mens rea that substance is illegal.

ACTUS REUS OVERBREADTH

STATE ACTUS REUS FOR DRUG OFFENSE

FED ACTUS REUS FOR DRUG OFFENSE

Actus reus-overbreadth

Does the “trafficking” statute include mere possession? (Florida, Maine, and others)

Does it include solicitation or an offer to sell? (Texas, Oregon, Connecticut, and others)

Can the commentary add inchoate offenses?

Note 1 of 4B1.2 defines a “controlled substance offense” to include aiding and abetting, conspiracy, and attempt

In United States v. Winstead, 890 F.3d 1082, 1091 (D.C. Cir. 2018), the D.C. Circuit recently held that the Guideline “clearly excludes inchoate offenses” and that this Note could not add offenses.

There’s now a circuit split—preserve, preserve, preserve!

“Attempt” broader than federal defn?

US v. Garcia-Jimenez, 807 F.3d 1079 (9th Cir. 2015) (NJ agg assault defined as attempted battery not COV b/c NJ rejects probable desistance test)US v. Gonzalez-Monterroso, 745 F.3d 1237 (9th Cir. 2014) (Delaware attempted rape is not COV for 2L1.2)

“Conspiracy” broader than federal defn.?Overt act

• U.S. v. Garcia-Santana, 774 F.3d 528 (9th Cir. 2014) (Nevada conspiracy is not aggravated felony)

Conspiracy with government agent• U.S. v. Brown, 885 F.3d 300 (9th Cir. 2018) (WA conspiracy not a drug conspiracy for 2K2.1 b/c WA permits conspiracy with a government agent)

Conspiracy with a government agent?Might also be true for: Indiana,

Nebraska, New Jersey, New York, Ohio, Alabama, Alaska, Arizona, Arkansas, Colorado, Delaware, Hawaii, Kentucky, Maine, Minnesota, Missouri, New Hampshire, North Dakota, Oregon, Utah Wisconsin

“Aiding and abetting” broader than federal defn?

Most states require an “intent” to facilitate the target offense But if a state requires only “knowledge” that conduct will facilitate the intended offense, almost every state offense could be overbroadU.S. v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017) (Washington aiding and abetting liability overbroad)Try this for Indiana, Iowa, Nebraska, Oklahoma?