UNITED STATES OF AMERICA v. FABIAN VERDUGO (2023)

ORDER

The matter before the Court is the Motion for Order Reducing Grade A Violations to Grade B, filed by Defendant Fabian Verdugo. (ECF No. 142.)

BACKGROUND

In 2007, Defendant was charged with importing 12.96 kilograms of methamphetamine into the United States and with possession of methamphetamine with intent to distribute. (ECF No. 1.) Defendant pled guilty (ECF No. 30) and was sentenced to 120 months' custody followed by five years of supervised release. (ECF No. 60.)

After Defendant was released from custody, on June 1, 2020, the Court found Defendant in violation of supervised release and imposed an additional four months' custody. (ECF No. 110.) After Defendant's release from custody a second time, on May 3, 2021, the Court found Defendant in violation of supervised release and sentenced him to an additional seven months' custody. (ECF No. 122.)

After Defendant was released from custody a third time, on July 7, 2022, United States Probation petitioned the Court to revoke supervised released based in part on Defendant's June 22, 2022 arrest for transportation of methamphetamine for sale, in violation of California Health and Safety Code § 11379(a), and possession of methamphetamine for sale, in violation of § 11378. (ECF No. 128.) Probation alleges that these violations are Grade A violations pursuant to USSG § 7B1.1(a)(1)(A)(ii), because they are each, inter alia, a “controlled substance offense.”

On January 24, 2023, Defendant filed the Motion for Order Reducing Grade A Violations to Grade B. (ECF No. 142.) Defendant contends that, pursuant to the “categorical approach” set forth in Taylor v. United States, 495 U.S. 575 (1990), “California's definition of methamphetamine is indivisibly broader than the federal definition of methamphetamine,” and therefore “these allegations can only be Grade B violations of supervised release because California H&S §§ 11378 and 11379 are not controlled substance offenses under U.S.S.G. § 7B1.1(a)(1).” (ECF No. 142 at 1-2.) Defendant contends:

California's definitions of methamphetamine [are] categorically broader than the federal definitions for two main reasons.

First, California's definition of methamphetamine is overbroad because it includes analogs that are not intended for human consumption—whereas federal methamphetamine only includes analogs that are intended for human consumption․

Second, California's methamphetamine definition is overbroad because it requires either that an analog be substantially similar in structure to methamphetamine or substantially similar in effect. Federal law requires both.

Id. at 3-4.

On January 31, 2023, the Government filed a Response in opposition to the Motion for Order Reducing Grade A Violations to Grade B. (ECF No. 144.) The Government contends that binding precedent forecloses Defendant's overbreadth claim. Id. at 2-3 (citing United States v. Rodriguez-Gamboa, 972 F.3d 1148 (9th Cir. 2020)). The Government also contends that Defendant's “claim rests on a reading of California law in a manner that would criminalize the possession and sale of drugs that drug users cannot use.” Id. at 5. The Government contends that Defendant has failed to show a “realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition.” Id. at 6 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

On April 3, 2023, Defendant filed a Reply in support of the Motion for Order Reducing Grade A Violations to Grade B. (ECF No. 150.)

DISCUSSION

“Under the categorical approach, [courts] compare the elements of the crime to the generic federal offense. A conviction under a state statute is a categorical match only if the state statute—regardless of its exact definition or label—substantially corresponds to or is narrower than the generic federal offense.” United States v. Rodriguez-Gamboa, 972 F.3d 1148, 1152 (9th Cir. 2020) (quotations omitted); see also United States v. Willis, 795 F.3d 986, 992 (9th Cir. 2015) (“conclud[ing] that the Taylor categorical approach applies in the supervised release context”).

The United States points out that, in Rodriguez-Gamboa, the Court of Appeals for the Ninth Circuit held, “as a matter of law, that California's definition of methamphetamine is a categorical match to the definition under the federal [Controlled Substances Act].” 972 F.3d at 1154 n.5; see also United States v. Ceja, 23 F.4th 1218, 1226 (9th Cir. 2022) (holding that Rodriguez-Gamboa “controls as a matter of law” in rejecting defendant's argument that his prior convictions under California Health and Safety Code § 11378 “are not controlled substance offenses because the California methamphetamine provisions sweep more broadly than the federal provisions”). Defendant argues that Rodriguez-Gamboa addressed “a separate categorical approach issue” and therefore “does not control here.” (ECF No. 142 at 3 n.1.)

In Rodriguez-Gamboa, the Court of Appeals held that California's definition of methamphetamine is a categorical match to the federal definition “[b]ecause geometric isomers of methamphetamine are impossible, there exists ‘no realistic probability’ that Rodriguez's California methamphetamine statute of conviction will be used to prosecute someone in connection with geometric isomers of methamphetamine,” and therefore “there is a categorical match between the two [statutes], even if the state statute is textually overbroad.” Rodriguez-Gamboa, 972 F.3d at 1152, 1154. Rodriguez-Gamboa's decision was based on the factual proposition that “geometric isomers of methamphetamine are impossible.” Id. at 1152. In this case, by contrast, the issue revolves around methamphetamine analogs and whether California has a broader definition of analogs than federal law. This is a separate issue that was not considered or decided by Rodriguez-Gamboa or Ceja. Because “cases are not precedential for propositions not considered,” United States v. Kirilyuk, 29 F.4th 1128, 1134 (9th Cir. 2022) (quotation omitted), Rodriguez-Gamboa and Ceja do not control here.

Defendant contends, among other things, that “California's methamphetamine definition is overbroad because it requires either that an analog be substantially similar in structure to methamphetamine or substantially similar in effect. Federal law requires both.” (ECF No. 142 at 4.) California law states that “the term ‘controlled substance analog’ means either of the following”:

(1) A substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance classified in Section 11054 or 11055 or a synthetic cannabinoid compound defined in Section 11357.5.

(2) A substance that has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to, or greater than, the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance classified in Section 11054 or 11055 or a synthetic cannabinoid compound defined in Section 11357.5.

Cal. Health & Safety Code § 11401(b) (emphasis added). Federal law defines “Controlled substance analogue” as:

a substance—

(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;

(ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or

(iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.

21 U.S.C. § 802(32)(A). The Ninth Circuit has not decided the issue, but the Fourth, Seventh, and Tenth Circuits have held that this federal statute is partially conjunctive, i.e., requiring both substantial chemical similarity under subsection (32)(A)(i) and either the required effect on the central nervous system or a representation or intent of such an effect under subsections (32)(A)(ii) or (iii). See United States v. McFadden, 823 F.3d 217, 220 (4th Cir. 2016); United States v. Makkar, 810 F.3d 1139, 1143 (10th Cir. 2015); United States v. Turcotte, 405 F.3d 515, 523 (7th Cir. 2005); cf. McFadden v. United States, 576 U.S. 186, 194, n.2 (2015) (assuming the statute is partially conjunctive without deciding the issue, based on the government's concession). The Court accepts the prevailing view that the federal statute requires a showing of two elements, which is facially broader than the corresponding California statute that requires only a showing of one of those two elements.

Accordingly, “[t]he state statute's greater breadth [than the federal statute] is evident from its text.” United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007), abrogated on other grounds by United States v. Stitt, 202 L. Ed. 2d 364, 139 S. Ct. 399 (2018). “Where, as here, a state statute explicitly defines a crime more broadly than the generic definition, no ‘legal imagination,’ is required to hold that a realistic probability exists that the state will apply its statute to conduct that falls outside the generic definition of the crime.” Id. (quoting Duenas-Alvarez, 549 U.S. at 193). Because “the state ‘statute sweeps more broadly than the generic [federal] crime, a conviction under that law cannot count as a [controlled substance offense] predicate, even if the defendant actually committed the offense in its generic form.’ ” Rendon v. Holder, 764 F.3d 1077, 1083 (9th Cir. 2014) (quoting Descamps v. United States, 570 U.S. 254, 261 (2013)).

The Supreme Court has recognized “a ‘narrow range of cases’ in which sentencing courts—applying what we would later dub the ‘modified categorical approach’—may look beyond the statutory elements to ‘the charging paper and jury instructions’ used in a case.” Descamps, 570 U.S. at 261 (quoting Taylor, 495 U.S. at 602). However, the United States has failed to argue that the modified categorical approach applies here. And even if the issue had been raised, under California law there is “no need to allege that [the substance the defendant is charged with possession] was an analog of a controlled substance as opposed to a controlled substance, for purposes of section 11378 and 11377.” People v. Becker, 183 Cal. App. 4th 1151, 1157 (2010). It is not clear from the charging document or the sentencing minutes (see ECF No. 144-1) whether the Defendant was charged with a violation involving methamphetamine or an analog of methamphetamine. Cf. Lorenzo v. Whitaker, 752 F. App'x 482, 486 (9th Cir. 2019) (refusing to apply the modified categorical approach because “the methamphetamine element applicable to a conviction under Health & Safety Code §§ 11378 or 11379(a) is not divisible”) (citing People v. Schroeder, 264 Cal. App. 2d 217 (1968)).

Accordingly, the United States has not shown that the alleged violations at issue are Grade A violations pursuant to USSG § 7B1.1(a)(1)(A)(ii), because they have not been shown to be “controlled substance offenses.”

CONCLUSION

The Motion for Order Reducing Grade A Violations to Grade B is granted. (ECF No. 142.)

Hon. William Q. Hayes United States District Court