and Submitted April 4, 2017 Pasadena, California
from the United States District Court for the Southern
District of California D.C. No. 3:12-cr-3850-JAH-2, John A.
Houston, District Judge Presiding
Burstein (argued), Warren & Burstein, San Diego,
California, for Defendant-Appellant.
Earl Zipp (argued), Assistant United States Attorney; Helen
H. Hong, Chief, Appellate Section; Criminal Division, United
States Attorney's Office, San Diego, California; for
Before: David M. Ebel, [*] Milan D. Smith, Jr., and N. Randy
Smith, Circuit Judges
panel affirmed a conviction for conspiracy to distribute
methamphetamine, vacated the sentence, and remanded for
panel held that the district court did not abuse its
discretion in denying the defendant's requested
theory-of-defense jury instruction on the buyer-seller
exception to conspiracy liability.
panel held that California Health & Safety Code §
11378 is a divisible statute that is susceptible to the
modified categorical approach. The panel held that using the
modified categorical approach, the government failed to
demonstrate that the defendant's § 11378 conviction
was based on a guilty plea to a controlled-substance element
that is included within the "felony drug offense"
definition set forth in 21 U.S.C. § 802(44). The panel
therefore concluded that the defendant's prior conviction
does not qualify as a felony drug offense that would enhance
his statutory mandatory minimum sentence under 21 U.S.C.
Luis Ocampo-Estrada (Ocampo) was convicted of conspiracy to
distribute methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and 846. The district court then
determined that Ocampo had previously been convicted of a
state offense, which qualified as a "felony drug
offense" under 21 U.S.C. § 841(b)(1)(A), thereby
triggering a twenty-year mandatory minimum sentence. The
predicate offense was California Health & Safety Code
section 11378, which prohibits the possession of certain
controlled substances for sale.
appeals both his federal conviction and sentence. Because the
district court did not abuse its discretion in denying
Ocampo's requested jury instruction, his conviction is
AFFIRMED. The sentence however does not survive. We hold that
California Health & Safety Code section 11378 is a
divisible statute that is susceptible to the modified
categorical approach. However, using the modified categorical
approach, the government failed to prove that Ocampo had
pleaded guilty to violating a controlled-substance element
under section 11378 that is encompassed by the federal
definition for "felony drug offense, " 21 U.S.C.
§ 802(44). Accordingly, his sentence is VACATED and the
matter is REMANDED to the district court for resentencing.
almost a year, Ocampo would regularly supply methamphetamine
to Norman Nooris who, in turn, would distribute it to buyers.
Homeland Security Investigations (HSI) first observed this
supplier-dealer relationship on October 18, 2011, when Nooris
told undercover agents he needed to "reload his
supply." ER 351. A short time later, Ocampo arrived
driving a black SUV and handed Nooris some methamphetamine,
which Nooris then sold to the undercover agents.
October 25, 2011, the same agents arranged for another drug
purchase from Nooris. Nooris asked Ocampo to
"front" him the methamphetamine, i.e., to require
payment only after the sale was complete. ER 148-49. Ocampo
agreed to front Nooris the drugs, drove him to the parking
lot where the sale was to take place, and then he waited in
the car while Nooris sold an ounce of methamphetamine to the
undercover agents. After the sale was completed, Nooris
rejoined Ocampo in the car, and the two drove off.
these two arranged purchases, HSI officers obtained
authorization to monitor cell-phone conversations between
Nooris and Ocampo. On December 6, 2011, Nooris told Ocampo
that Nooris had customers waiting and asked when Ocampo would
have the drugs. Ocampo updated him on the forthcoming supply,
explaining it would be available in a few hours after his
courier delivered it from across the Mexican border.
next day, Ocampo informed Nooris that he had "two bomb
ones" available, ER 119, and Nooris asked again if
Ocampo could front him the drugs. Ocampo agreed and provided
the methamphetamine on credit. Later that day, Nooris called
to give Ocampo an update on the ...