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United States v. Ocampo-Estrada

United States Court of Appeals, Ninth Circuit

August 29, 2017

United States of America, Plaintiff-Appellee,
v.
Luis Ocampo-Estrada, AKA Luis Enrique Ocampo, Defendant-Appellant.

          Argued and Submitted April 4, 2017 Pasadena, California

         Appeal 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

          Devin Burstein (argued), Warren & Burstein, San Diego, California, for Defendant-Appellant.

          Daniel Earl Zipp (argued), Assistant United States Attorney; Helen H. Hong, Chief, Appellate Section; Criminal Division, United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

          Before: David M. Ebel, [*] Milan D. Smith, Jr., and N. Randy Smith, Circuit Judges

          SUMMARY [**]

         Criminal Law

         The panel affirmed a conviction for conspiracy to distribute methamphetamine, vacated the sentence, and remanded for resentencing.

         The 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.

         The 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. § 841(b)(1)(A).

          OPINION

          EBEL, Circuit Judge:

         Defendant 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.

         Ocampo 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.

         I. BACKGROUND

         For 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.

         On 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.

         After 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.

         The 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 ...


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