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Federal Sentencing When State Court Intent to Sell
The following summary involves an appeal of a federal judge’s sentence of forty-one months in federal prison and three years of supervised release premised upon an individual’s prior criminal conviction for possession of cocaine with intent to sell.
Gibran Richardo Figueroa-Beltran was prosecuted in United States District Court, Nevada, for being a deported alien found unlawfully in the United States in violation of 8 U.S.C. § 1326. This article is presented because the federal court in Nevada is part of the Ninth Circuit, which includes California, so any ruling by the Ninth Circuit, as in this case, would apply equally in federal court in California.
Brief Synopsis: A sixteen-level increase in one’s federal court sentencing level for a prior state court conviction for possession of a controlled substance for sales was proper. Defendant’s argument that the state court statute was more broad than the federal statute was rejected under the modified categorical approach.
In May 2012, Figueroa-Beltran was charged with possession of cocaine with intent to sell in violation of NRS § 453.337. Figueroa-Beltran entered a guilty plea in Nevada state court to the offense and was sentenced to forty-eight months of imprisonment, with parole eligibility after nineteen months.
In 2015, Figueroa-Beltran was indicted for being a deported alien found unlawfully in the United States in violation of 8 U.S.C. § 1326(a). Figueroa-Beltran subsequently pled guilty to the charge.
In its presentence report (PSR), probation recommended a custodial sentence of forty-one months’ imprisonment and three years of supervised release. The PSR calculated a base offense level of eight, and an adjusted offense level of twenty-four, with includes a sixteen-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(1) due to Figueroa-Beltran’s commission of a drug trafficking offense (his state court possession with intent to sell conviction). The PSR calculated a total offense level of twenty-one after a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.
U.S. Ninth Circuit Court of Appeals PasadenaBased on Figueroa’s prior arrests and convictions, the PSR calculated Figueroa-Beltran’s criminal history category at three.
The PSR recommended a sentencing guidelines range of forty-one to fifty-one months’ imprisonment, but a custodial sentence of forty-one months, at the low end of the sentencing range.
In his sentencing memorandum, Figueroa-Beltran objected to the sixteen-level enhancement recommended by the PSR, arguing that violation of NRS § 453.337 was not categorically a drug trafficking offense because the state statute penalized a broader range of criminal conduct than the federal generic offense.
Figueroa-Beltran points out that Nevada, through its Schedule I and II, criminalizes more substances than federal law. For example, Nevada lists Butanediol and Gamma butyrolactone in Schedule I and Benzoylecgonine in Schedule II. Neither of these drugs, however, were federally scheduled.
Figueroa-Beltran further argued that because § 453.337 was not divisible, the district court was precluded from reviewing the underlying record for Figueroa-Beltran’s conviction under the modified categorial approach. See Descamps v. United States (2013) 570 U.S. 254, at 260 (describing the modified categorical approach).
Relying on United States v. Benitez-Perez (9th Cir., 2004) 367 F.3d 1200, the district court rejected Figueroa-Beltran’s contention that his conviction for possession of cocaine in violation of NRS § 453.337 was not for a categorical drug trafficking offense. The district court ruled that the modified categorical approach was permissible in determining whether Figueroa-Beltran’s possession of cocaine supported the sixteen-level enhancement.
The district court noted that Figueroa-Beltran was arrested for possession of cocaine for sales, but not prosecuted, because he was about to be deported in two weeks. He was then found back in the United States and arrested in 2015 and faced 26 charges for possession with intent to distribute heroin.
Figueroa-Beltran appealed to the U.S. Ninth Circuit Court of Appeals, which was the Ninth Circuit court in San Francisco. The Ninth Circuit affirmed the district court, explaining that if a statute is divisible because it has multiple, alternative elements, it is effectively several different crimes within one crime, then a court may apply the modified categorical approach. This permits consideration of judicially noticeable documents of conviction.
Here, § 453.337 is a divisible statute because possession of a specific controlled substance is an element of the crime, but not merely a means of committing the possession-for-sale offense. Although Nevada schedules of controlled substances are not coterminous with the listing of prohibited substances delineated in the federal Controlled Substances Act, 453.337 is not fatally overbroad because a jury must unanimously agree that defendant possessed a specific controlled substance, rather than one of a list that may be overbroad to the federal list. Therefore, the district court correctly selected a sixteen-level enhancement.
This article is a good example of why the analysis of a state court drug offense should not stop at just a comparison of the listing of controlled substances. Instead, one should further evaluate if a modified categorical approach is possible, as it was here.
The citation for the U.S. Ninth Circuit Court of Appeals ruling discussed above is United States v. Gibron Richardo Figueroa-Beltran (9th Cir., 2021) 995 F. 3d 724.
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