FILED
NOT FOR PUBLICATION
FEB 17 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50581
Plaintiff - Appellee, D.C. No. 3:14-cr-02432-W-1
v.
MEMORANDUM*
JOSE JESUS ANDRADE-CALDERON,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding
Argued and Submitted February 4, 2016
Pasadena, California
Before: REINHARDT, PAEZ, and M. SMITH, Circuit Judges.
Jose Jesus Andrade-Calderon pleaded guilty to 8 U.S.C. § 1326 which
criminalizes being a removed alien found present in the United States. On
December 8, 2014, Andrade-Calderon was sentenced to 30 months in prison for
this offense. His projected release date is October 4, 2016.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The central question in this appeal is whether the district court appropriately
calculated Andrade-Calderon’s sentence range under the sentencing guidelines. In
calculating his sentence, the district court applied a 16-level increase to Andrade-
Calderon’s base offense level, concluding that Andrade-Calderon’s prior
conviction under 21 U.S.C. §§ 841(c)(2) & 846 was a “drug trafficking offense” as
defined by U.S.S.G. § 2L1.2(b)(1). That increase resulted in a guidelines
sentencing range of 30 to 37 months. Andrade-Calderon appeals, claiming that a
conviction under Section 841(c)(2) is not a “drug trafficking offense” and therefore
cannot justify the application of the 16-level enhancement. If the enhancement had
not been applied, he argues, the appropriate guidelines range would have been 8 to
14 months, a sentence he has already served.
To determine whether Section 841(c)(2) is a “drug trafficking offense,”
thereby justifying the 16-level enhancement, we apply the three-step process set
forth in Descamps v. United States, 133 S. Ct. 2276 (2013). First, we must
compare the elements of Section 841(c)(2) to the elements of the generic “drug
trafficking offense” defined by federal law. Almanza-Arenas v. Lynch, 809 F.3d
515, 521 (9th Cir. 2015) (en banc). If this “categorical approach” reveals that the
elements of § 841(c)(2) are “the same as or narrower than the elements” of a drug
trafficking offense, then Section 841(c)(2) is a “categorical match and every
2
conviction under that statute qualifies as a [drug trafficking offense.]” Id. (quoting
Lopez-Valencia v. Lynch, 798 F.3d 863, 867–68 (9th Cir. 2015)). If, however, the
statute is “‘overbroad,’ meaning that it criminalizes conduct that goes beyond the
elements of the federal offense, we turn to step two: determining whether the
statute is ‘divisible’ or ‘indivisible.’” Id. “If the statute is indivisible, ‘our inquiry
ends, because a conviction under an indivisible, overbroad statute can never serve
as a predicate offense.’” Id. We may turn to step three, the “modified categorical
approach,” only if the statute is overbroad and divisible. In such case, “we may
examine certain documents from the defendant’s record of conviction to determine
what elements of the divisible statute he was convicted of violating.” Id.
1. At step one, we compare the elements of Section 841(c)(2) to the
elements of a drug trafficking offense. Section 841(c)(2) criminalizes the knowing
or intentional possession or distribution of a “listed chemical” with either
knowledge or reasonable cause to believe that the chemical will be used to
manufacture a controlled substance. 21 U.S.C. § 841(c)(2). A listed chemical is a
chemical that has legitimate, legal uses, although it is occasionally used to make a
controlled substance. 21 U.S.C. § 802(33)–(35).
In contrast, a “drug trafficking offense” under Guideline § 2L1.2 is an
offense that “prohibits the manufacture, import, export, distribution, or dispensing
3
of, or offer to sell a controlled substance (or counterfeit substance) or the
possession of a controlled substance (or counterfeit substance) with intent to
manufacture, import, export, distribute or dispense.” U.S.S.G. § 2L1.2 cmt.
n.1(B)(iv). A “drug trafficking offense” also “include[s] the offenses of aiding and
abetting, conspiring, and attempting to commit” the above offenses. Id. § 2L1.2
cmt. n.5.
Section 841(c)(2) cannot categorically be a drug trafficking offense because
it criminalizes conduct that is not within the generic guidelines offense. Section
841(c)(2) deals exclusively with the possession of listed chemicals. Listed
chemicals are not controlled substances because they have not been placed on the
Schedules of 21 U.S.C. § 812. See United States v. Leal-Vega, 680 F.3d 1160,
1167 (9th Cir. 2012) (defining controlled substance).
The government attempts to avoid this obvious conclusion by relying on a
series of cases which suggest that an offense qualifies as a drug trafficking offense
if it is “sufficiently similar” to the inchoate offenses of aiding and abetting,
conspiring, or attempting to commit a drug trafficking offense. See, e.g., United
States v. Jimenez, 533 F.3d 1110 (9th Cir. 2008); United States v. Contreras-
Hernandez, 628 F.3d 1169, 1172 (9th Cir. 2011). According to the government, a
conviction under Section 841(c)(2) is sufficiently similar to these inchoate offenses
4
because the possession or distribution of a listed chemical can materially advance
the crime of manufacturing a controlled substance. We reject this argument.
Under our case law, an offense is sufficiently similar to those inchoate offenses
only if “the mens rea and actus reus required for [the crime] are sufficiently similar
to those required for aiding and abetting, conspiracy and attempt.” Contreras-
Hernandez, 628 F.3d at 1173 (quoting United States v. Cornelio-Pena, 435 F.3d
1279, 1286 (10th Cir. 2006)). Section 841(c)(2) criminalizes conduct that is
significantly less serious than aiding and abetting, attempting, conspiring, or
soliciting the manufacture of a controlled substance. Namely, it criminalizes the
possession or distribution of the chemical with “reasonable cause to believe” that
the chemical would be used to manufacture a controlled substance. Such a
defendant need not intend that the chemical be used in the manufacture of a drug or
even know that the chemical be used for such purpose. Mere reckless possession
or distribution falls far short of the specific intent that is ordinarily required of
inchoate crimes. See, e.g., United States v. Tran, 568 F.3d 1156, 1157 (9th Cir.
5
2009) (aiding and abetting requires that the defendant “participate in it as in
something that he wished to bring about”) (internal quotations omitted).1
2. Having determined that Section 841(c)(2) is not categorically a drug
trafficking offense, we must determine whether the statute is divisible. A statute is
divisible if it has “multiple, alternative elements, and so effectively creates ‘several
different crimes,’” rather than by providing different means of committing the
same crime. Almanza-Arenas, 809 F.3d at 522. Generally, if jury unanimity with
regard to the alternatives that the statute proposes is not required, the statute is
indivisible. Id. at 526–27; Rendon v. Holder, 764 F.3d 1077, 1087 (9th Cir. 2014).
Here, the Ninth Circuit Manual of Model Jury Instructions does not require jury
unanimity with regard to the defendant’s mens rea. See Ninth Circuit Manual of
Model Criminal Jury Instructions § 9.28. Accordingly, Section 841(c)(2) is not
divisible.
1
The government also suggests that a conviction under Section 841(c)(2)
for possessing a listed chemical with knowledge that it will be used to manufacture
a controlled substance is sufficiently similar to the inchoate offenses to justify the
application of the enhancement. At least part of the behavior criminalized by
Section 841(c)(2), however, is clearly overbroad—the part that criminalizes
possession with only “reasonable cause to believe” the substance will be used to
manufacture a controlled substance. Therefore, at step one, Section 841(c)(2)
cannot categorically be a drug trafficking offense. We do not reach the more
difficult question whether a defendant who had knowledge the chemical would be
used to manufacture a controlled substance committed a drug trafficking offense,
however, because we conclude below that Section 841(c)(2) is indivisible.
6
Since Section 841(c)(2) is an overbroad, indivisible statute, it cannot serve
as a predicate offense justifying the 16-level enhancement under the guideline.
Accordingly, Andrade-Calderon has already served a term well in excess of the
appropriate guidelines range. The mandate shall issue forthwith and the case is
remanded to the district court for immediate resentencing.
VACATED AND REMANDED. MANDATE TO BE ISSUED
FORTHWITH.
7