United States v. Melvin Martinez-Lopez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-50014
Plaintiff-Appellee,
D.C. No. 2:12-
v. cr-00973-ABC-1

MELVIN MARTINEZ-LOPEZ, AKA
Jorge Lopez, AKA Melvin Miscael OPINION
Martinez, AKA Miguel Angel
Rodriguez, AKA Manuel Rodriguez-
Pena,
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding

Argued and Submitted En Banc January 17, 2017
San Francisco, California

Filed July 28, 2017

Before: Sidney R. Thomas, Chief Judge, and Stephen
Reinhardt, Alex Kozinski, Diarmuid F. O’Scannlain,
M. Margaret McKeown, Marsha S. Berzon, Richard C.
Tallman, Richard R. Clifton, Jay S. Bybee, Consuelo M.
Callahan and Carlos T. Bea, Circuit Judges.
2 UNITED STATES V. MARTINEZ-LOPEZ

Opinion by Judge Tallman;
Partial Concurrence and Partial Dissent by Judge Berzon;
Partial Concurrence and Partial Dissent by Judge Bybee;
Dissent by Judge Reinhardt

SUMMARY *

Criminal Law

The en banc court affirmed a sentence in a case taken en
banc to revisit the divisibility of California drug statutes in
light of recent guidance from the United States Supreme
Court.

The en banc court held that California Health and Safety
Code section 11352, which criminalizes a variety of
activities related to certain controlled substances identified
by reference to other code provisions, is divisible with regard
to both its controlled substance requirement and its actus
reus requirement. The en banc court held that the district
court therefore properly applied the modified categorical
approach, and in doing so, correctly found that the defendant
pled guilty to selling cocaine, which qualifies as a drug
trafficking offense under the federal sentencing guidelines
and subjects him to a 16-level enhancement to his base
offense level. The en banc court concluded that the sentence
imposed, based on a properly calculated guidelines range, is
substantively reasonable.

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 UNITED STATES V. MARTINEZ-LOPEZ 3

Concurring in part and dissenting in part, but frustrated
with the whole endeavor, Judge Bybee wrote that California
Health and Safety Code § 11352(a) functions as a new form
of “wobbler” statute in regards to the actus reus. He wrote
that the “demand for certainty” required by Mathis v. United
States, 136 S. Ct. 2243 (2016), to conclude that the statute
identifies elements rather than means is not satisfied, and
that the sentence enhancement therefore cannot stand.

Judge Berzon, joined by Chief Judge Thomas and Judge
Reinhardt except as to Part IV, concurred in part and
dissented in part. Judge Berzon dissented as to the
majority’s decision on the actus reus component of
§ 11352(a). After applying all three steps outlined in Mathis,
she concluded that it is most likely that the enumerated
actions are different means of committing the offense stated
in § 11352(a), not alternative elements, but there are some
contrary indications. She would certify the question to the
California Supreme Court. She concurred with respect to the
statute’s controlled substance component, with the caveat
that there have been changes in related California legal
principles in recent years that may have undermined the
assumptions in In re Adams, 536 P.2d 473 (Cal. 1975), as to
whether a specific controlled substance is an element that
must be proven beyond a reasonable doubt to a jury or
admitted by the defendant.

Judge Reinhardt, joined by Chief Judge Thomas,
dissented, joining Judge Berzon’s opinion except as to Part
IV. He would certify to the California Supreme Court the
question of the divisibility of the controlled substance
provision as well as of the actus reus provision.
4 UNITED STATES V. MARTINEZ-LOPEZ

COUNSEL

David Menninger (argued) and Matthew B. Larsen, Deputy
Federal Public Defenders; Hilary L. Potashner, Federal
Public Defender; Office of the Federal Public Defender, Los
Angeles, California; for Defendant-Appellant.

L. Ashley Aull (argued), Assistant United States Attorney,
Criminal Appeals Section; Robert E. Dugdale and Lawrence
S. Middleton, Chiefs, Criminal Division; United States
Attorney’s Office, Los Angeles, California; for Plaintiff-
Appellee.

Vincent J. Brunkow and Kara Hartzler, Federal Defenders of
San Diego, Inc., San Diego, California, for Amici Curiae
Ninth Circuit Federal Public and Community Defenders.

Albert Camacho, Jr., Graciela Martinez, Albert J. Menaster,
and Ronald L. Brown, Los Angeles, California, as and for
Amicus Curiae Los Angeles County Office of the Public
Defender.

OPINION

TALLMAN, Circuit Judge:

OVERVIEW

We took this case en banc to revisit the divisibility of
California drug statutes. 1 This case involves California

1
In Guevara v. United States, 136 S. Ct. 2542 (2016), the Supreme
Court granted certiorari, vacated our decision finding California Health
and Safety Code section 11351 divisible, and remanded with instructions
 UNITED STATES V. MARTINEZ-LOPEZ 5

Health and Safety Code section 11352, which—like many
California drug statutes—criminalizes a variety of activities
related to certain controlled substances identified by
reference to other code provisions. If a categorically
overbroad statute like section 11352 is divisible, then it is
subject to the modified categorical approach, and a prior
state conviction under that statute might constitute a
predicate “drug trafficking offense” under the federal
sentencing guidelines. We clarify the analysis to be
employed in light of the most recent guidance from the
United States Supreme Court.

Melvin Martinez-Lopez was convicted of illegal reentry
following deportation in violation of 8 U.S.C. § 1326. The
district court assumed that section 11352 is divisible based
on our prior decisions, and concluded that Martinez-Lopez’s
prior conviction under section 11352 qualifies as a federal
drug trafficking offense under the modified categorical
approach. It therefore imposed a 16-level enhancement to
his base offense level and sentenced him to 77 months in
prison.

On appeal, Martinez-Lopez argues that section 11352 is
indivisible with regard to both its controlled substance
requirement and its actus reus requirement. We disagree,
and conclude that both requirements are elements under
Mathis, thus rendering section 11352 divisible and subject to
the modified categorical approach. Because Martinez-

to reconsider in light of Mathis v. United States, 136 S. Ct. 2243 (2016).
Because Guevara was based on related decisions involving similar
California drug statutes, see, e.g., Coronado v. Holder, 759 F.3d 977 (9th
Cir. 2014); United States v. Huitron-Rocha, 771 F.3d 1183 (9th Cir.
2014); United States v. Torre-Jimenez, 771 F.3d 1163 (9th Cir. 2014),
we respond to the Supreme Court’s instruction by revisiting the entire
line of cases.
6 UNITED STATES V. MARTINEZ-LOPEZ

Lopez previously pled guilty to selling cocaine, which
qualifies as a drug trafficking offense under the guidelines,
and because his sentence is substantively reasonable, we
affirm.

BACKGROUND

As a child, Miguel Angel Rodriguez—known in this case
as Melvin Martinez-Lopez—ran away from his family in
Guatemala to escape physical abuse by his alcoholic father.
He entered the United States illegally when he was 12 years
old and moved in with his aunt in Los Angeles County.
Later, he began living on the streets and in shelters. He
eventually became involved with a local street gang and
started selling drugs.

Martinez-Lopez was convicted in California state court
of selling cocaine in 1993, and again in 1994. He was
deported upon release from his 1994 prison sentence, but he
promptly returned to the United States. In January 1998,
Martinez-Lopez was again convicted for selling cocaine
after he pled guilty to violating California Health and Safety
Code section 11352(a), which makes it a crime to transport,
import, sell, furnish, administer, give away; or offer to
transport, import, sell, furnish, administer, or give away “any
controlled substance specified” in a number of cross-
referenced code provisions. Martinez-Lopez served time in
state prison and was again deported upon release in 2001.

Martinez-Lopez continued his recidivist pattern of
returning to the United States after deportation—in part to
be with his children and their mother, whom he considers to
be his wife. In 2003, he was convicted of illegal reentry,
sentenced to 21 months in federal prison, and deported upon
release. In 2006, he was again convicted of illegal reentry,
sentenced to 77 months in prison, and deported upon release.
 UNITED STATES V. MARTINEZ-LOPEZ 7

Finally, in 2014, he was once again convicted of illegal
reentry and is now serving another 77-month sentence.

This final sentence is at issue before us. The district
court based the current 77-month sentence on a guidelines
sentencing range of 70 to 87 months, which was itself driven
by the 16-level enhancement. This enhancement is imposed
under the federal sentencing guidelines when a defendant
was previously deported following a conviction “for a felony
. . . drug trafficking offense for which the sentence imposed
exceeded 13 months.” U.S. Sentencing Guidelines Manual
(U.S.S.G.) § 2L1.2(b)(1)(A)(i) (U.S. Sentencing Comm’n
2012). 2 To qualify as a drug trafficking offense under the
guidelines, the offense must involve a substance listed in the
Controlled Substances Act, 21 U.S.C. § 801 et seq., see
United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir.
2012), and involve the violation of a law which “prohibits
the manufacture, import, export, distribution, or dispensing
of, or offer to sell a controlled substance . . . or the
possession of a controlled substance . . . with intent to
manufacture, import, export, distribute, or dispense.”
U.S.S.G. § 2L1.2 cmt. n.1(B)(iv).

The district court recognized that a conviction under
California’s section 11352 does not categorically qualify as
a drug trafficking offense because section 11352
criminalizes a broader range of activity and a greater variety
of controlled substances than does federal law. See
Mielewczyk v. Holder, 575 F.3d 992, 995 (9th Cir. 2009)
(section 11352 categorically overbroad with regard to its

2
Martinez-Lopez was sentenced under the November 12, 2012,
edition of the federal sentencing guidelines, which have been revised on
multiple occasions in subsequent years.
8 UNITED STATES V. MARTINEZ-LOPEZ

controlled substance requirement); United States v. Rivera-
Sanchez, 247 F.3d 905, 909 (9th Cir. 2001) (en banc)
(section 11352 categorically overbroad with regard to its
actus reus requirement), superseded on other grounds by
U.S.S.G. § 2L1.2 cmt. n.4 (2002). 3 However, the district
court went on to determine that the prior conviction
nonetheless qualified as a drug trafficking offense under the
modified categorical approach—relying on our prior
determination that section 11352 is a divisible statute. See
Huitron-Rocha, 771 F.3d at 1184. Because a California
Superior Court plea colloquy shows that Martinez-Lopez
pled guilty to selling cocaine, the district court concluded
that the section 11352 conviction qualified as a predicate
drug trafficking offense. It therefore applied the 16-level
enhancement, which resulted in a guidelines range of 70 to
87 and a sentence of 77 months in prison.

Martinez-Lopez raises three arguments on appeal. First,
he argues that his 1998 conviction cannot qualify as a
predicate drug trafficking offense because section 11352 is
indivisible with regard to its controlled substance
requirement. Second, he argues that section 11352 is
indivisible with regard to its actus reus requirement. Third,
he argues that his sentence is substantively unreasonable.
We reject each in turn.

3
Section 11352 is categorically overbroad with regard to its actus
reus requirement because it criminalizes the mere “offer to” commit
certain offenses related to a controlled substance. Rivera-Sanchez,
247 F.3d at 908–09. The version of section 11352 in effect at the time
of Martinez-Lopez’s conviction was also categorically overbroad
because it criminalized the transportation of a controlled substance for
personal use, which is not a drug trafficking offense under the Controlled
Substances Act. See United States v. Rosales-Aguilar, 818 F.3d 965, 973
(9th Cir. 2016).
 UNITED STATES V. MARTINEZ-LOPEZ 9

DISCUSSION

We apply a three-step analysis to determine whether a
prior conviction under state law qualifies as a predicate drug
trafficking offense under the federal sentencing guidelines.
First, we ask whether the state law is a categorical match
with a federal drug trafficking offense. See Taylor v. United
States, 495 U.S. 575, 599–600 (1990). At this step, we look
only to the “statutory definitions” of the corresponding
offenses. Id. at 600. If a state law “proscribes the same
amount of or less conduct than” that qualifying as a federal
drug trafficking offense, then the two offenses are a
categorical match. United States v. Hernandez, 769 F.3d
1059, 1062 (9th Cir. 2014) (per curiam). In that scenario, a
conviction under state law automatically qualifies as a
predicate drug trafficking offense—ending our analysis. See
Taylor, 495 U.S. at 599.

We have already held that section 11352, like many
California drug statutes, is not a categorical match with a
federal drug trafficking offense. See Mielewczyk, 575 F.3d
at 995 (controlled substance requirement); Rivera-Sanchez,
247 F.3d at 909 (actus reus requirement). This case,
therefore, turns on the second step of our analysis.

At the second step, we ask whether section 11352 is a
divisible statute which “sets out one or more elements of the
offense in the alternative.” Descamps v. United States,
133 S. Ct. 2276, 2281 (2013). In Mathis, the Supreme Court
reiterated the importance of the abstract comparison of
elements, explaining that a statute is divisible only when it
“list[s] elements in the alternative, and thereby define[s]
multiple crimes.” 136 S. Ct. at 2249. Mathis did not change
the rule stated in Descamps; it only reiterated that the
Supreme Court meant what it said when it instructed courts
to compare elements.
10 UNITED STATES V. MARTINEZ-LOPEZ

However, Mathis also instructed courts not to assume
that a statute lists alternative elements and defines multiple
crimes simply because it contains a disjunctive list. Id.
Although we properly articulated the elements-based test
before Mathis was decided, see Rendon v. Holder, 764 F.3d
1077, 1086 (9th Cir. 2014), our prior decisions on California
drug statutes have often put undue emphasis on the
disjunctive-list rationale criticized in Mathis. See, e.g.,
Huitron-Rocha, 771 F.3d at 1184 (relying on Coronado to
find section 11352 divisible); Torre-Jimenez, 771 F.3d at
1166–67 (relying on Coronado to find Section 11351
divisible); Coronado, 759 F.3d at 984 (“[B]y its very terms,
§ 11377(a) list[s] potential offense elements in the
alternative. . . . Use of the modified categorical approach is
therefore appropriate . . . .” (citation and quotation marks
omitted)); see also Guevara, 136 S. Ct. at 2542 (vacating
decision relying on Torre-Jimenez and remanding for
reconsideration in light of Mathis).

Instead, Mathis instructs us to consult “authoritative
sources of state law” to determine whether a statute contains
alternative elements defining multiple crimes or alternative
means by which a defendant might commit the same crime.
Mathis, 136 S. Ct. at 2256. The Court begins by describing
two “easy” scenarios, which occur when (1) a state court
decision “definitively answers the question,” or (2) the
statute “on its face . . . resolve[s] the issue.” Id. The Court
then explains that “if state law fails to provide clear
answers,” we should “peek at the record documents . . . for
the sole and limited purpose of determining whether the
listed items are elements of the offense” under state law. Id.
at 2256–57 (alterations and quotation marks omitted)
(quoting Rendon, 782 F.3d at 473–74 (Kozinski, J.,
dissenting from denial of reh’g en banc)). Finally, the Court
observes that in most cases we will be able to determine
 UNITED STATES V. MARTINEZ-LOPEZ 11

whether a law is divisible or indivisible. Id. at 2257
(“[I]ndeterminacy should prove more the exception than the
rule.”).

If section 11352 is divisible under Mathis, then we may
proceed to the third step in our analysis and apply the
modified categorical approach. At this step, we examine
judicially noticeable documents of conviction “to determine
which statutory phrase was the basis for the conviction.”
Descamps, 133 S. Ct. at 2285 (quoting Johnson v. United
States, 559 U.S. 133, 144 (2010)). If the defendant pled or
was found guilty of the elements constituting a federal drug
trafficking offense, the prior state conviction may serve as a
predicate offense under the sentencing guidelines. See
Shepard v. United States, 544 U.S. 13, 16 (2005).

It bears repeating that we may apply the modified
categorical approach only when we first determine that a
statute is divisible—if a statute is both overbroad and
indivisible, a prior conviction under that statute will never
qualify as a predicate drug trafficking offense under the
federal sentencing guidelines. For this reason, Martinez-
Lopez’s case turns on the divisibility of section 11352.

Controlled Substance Requirement

Martinez-Lopez first argues that his prior conviction
cannot qualify as a predicate offense because section 11352
is indivisible with regard to its controlled substance
requirement. We review divisibility of a statute de novo,
Almanza-Arenas v. Lynch, 815 F.3d 469, 477 (9th Cir. 2016)
(en banc), and we disagree.

With respect to the controlled substance requirement, we
conclude that this is an “easy” case because a “state court
decision definitively answers the question.” Mathis, 136 S.
12 UNITED STATES V. MARTINEZ-LOPEZ

Ct. at 2256. In 1975, the California Supreme Court decided
In re Adams, 536 P.2d 473 (Cal. 1975). Adams addressed
section 654 of the California Penal Code, which prohibits
multiple sentences for a single “act or omission that is
punishable in different ways by different provisions of law.”
Cal. Penal Code § 654. Adams held that, under section 654,
a defendant cannot receive multiple sentences for the
simultaneous transportation of different types of drugs when
the defendant transports the different drugs with a single
criminal objective. 536 P.2d at 476–77. But Adams
cautioned that it “d[id] not disapprove” of earlier cases
imposing multiple sentences for simultaneous possession of
different drugs. Id. at 477 (citing, e.g., People v. Lockwood,
61 Cal. Rptr. 131 (Ct. App. 1967); People v. Lopez, 337 P.2d
570 (Cal. Ct. App. 1959)). Instead, Adams distinguished
those cases, explaining that multiple sentences are proper so
long as the defendant has multiple criminal objectives—for
example, when a defendant intends to sell to multiple buyers.
Id.

Moreover, Adams implicitly approved of multiple
convictions even when a defendant has a single criminal
objective because Adams modified only the criminal
judgment by staying execution of the multiple sentences,
leaving intact the separate convictions. Id. at 479. The
California Supreme Court has reaffirmed these principles as
recently as 2012. See People v. Jones, 278 P.3d 821, 827
(Cal. 2012) (finding violation of section 654 but reiterating
that the court “do[es] not intend to cast doubt on the cases”
holding that “‘simultaneous possession of different items of
contraband’ are separate” crimes (citation omitted)).

As a result of Adams and its progeny, defendants are
routinely subjected to multiple convictions under a single
statute for a single act as it relates to multiple controlled
 UNITED STATES V. MARTINEZ-LOPEZ 13

substances. See, e.g., People v. Monarrez, 78 Cal. Rptr. 2d
247, 248 (Ct. App. 1998) (finding no violation of section 654
and affirming separate sentences for simultaneous
possession of heroin and cocaine for sale in violation of
section 11351). Section 11352 is no exception to this
prosecutorial charging practice. See, e.g., Adams, 536 P.2d.
at 475–77 (finding violation of section 654 but otherwise
approving of multiple convictions for simultaneous
transportation of heroin and pantopon in violation of section
11352); People v. Chung, 187 Cal. Rptr. 3d 873, 878–80 (Ct.
App. 2015) (same with regard to simultaneous offers to sell
cocaine and cocaine base).

Because defendants are routinely subjected to such
convictions, and because such convictions are recognized as
separate crimes by the California Supreme Court, we have a
“definitive[] answer[]”: the controlled substance
requirement in section 11352 does not simply describe
“alternative methods of committing one offense.” Mathis,
136 S. Ct. at 2256 (citation, alterations, and quotation marks
omitted in second quotation). Rather, because “the
possession of one [substance] is not essential to the
possession of another [substance],” In re Hayes, 451 P.2d
430, 436 (Cal. 1969) (Traynor, C.J., dissenting), overruled
on other grounds by Jones, 278 P.3d at 826–27, section
11352 creates separates crimes, each containing “an element
not contained in the other,” United States v. Ford, 371 F.3d
550, 553 (9th Cir. 2004) (emphasis added) (quoting United
States v. Dixon, 509 U.S. 688, 696 (1993), which describes
the test for double jeopardy). Thus, section 11352 is
divisible with regard to its controlled substance requirement.

Although we need look no further because the California
Supreme Court has spoken on the issue, see Mathis, 136 S.
Ct. at 2256, our conclusion is also supported by persuasive
14 UNITED STATES V. MARTINEZ-LOPEZ

authority on California law. For example, California jury
instructions require a jury to fill in a blank identifying “a
controlled substance”—i.e., only one—demonstrating that
the jury must identify and unanimously agree on a particular
controlled substance. Judicial Council of California
Criminal Jury Instructions (CALCRIM) 2301; see also
United States v. Vidal, 504 F.3d 1072, 1084 n.20 (9th Cir.
2007) (en banc) (noting that the California Criminal Jury
Instructions “are the official instructions for use in the state
of California” (quoting Cal. Rules of Court 2.1050)).
Additionally, a leading commentator on California law
describes “[a] specified controlled substance” as an element
common to all criminal drug offenses. 2 Witkin, Cal. Crim.
Law § 102(1)(a) (4th ed. 2012).

We see no need to belabor the point by responding to
Martinez-Lopez’s arguments regarding decisions by
California appellate courts. Because the California Supreme
Court recognizes multiple section 11352 convictions for a
single act as it relates to multiple controlled substances, see
Jones, 278 P.3d at 827; Adams, 536 P.2d at 477, it has
implicitly held that the controlled substance requirement is
an element. As the final expositor of California law, we find
its reasoning persuasive and conclude that section 11352 is
divisible with regard to its controlled substance requirement.

Actus Reus Requirement

Martinez-Lopez next argues that his prior conviction
cannot qualify as a predicate offense under the federal
sentencing guidelines because section 11352 is indivisible
with regard to its actus reus requirement. We disagree and
conclude that Martinez-Lopez’s argument is foreclosed by
another controlling state decision.
 UNITED STATES V. MARTINEZ-LOPEZ 15

In People v. Patterson, 778 P.2d 549 (Cal. 1989), the
California Supreme Court considered application of the
felony-murder doctrine to convictions under section 11352.
Patterson first explained that, under the felony-murder
doctrine, courts must evaluate the inherent dangerousness of
a crime based on “the elements of the felony in the abstract,”
and not based on the “particular facts of the case.” Id. at 554
(citation and internal quotation marks omitted in second
quotation). It then reversed the decision below, which
concluded that “a violation of section 11352” is not
inherently dangerous, id. at 553, and held that the proper
inquiry is instead whether “the specific offense of furnishing
cocaine” is inherently dangerous, id. at 555. The court went
on to explain that:

To create statutes separately proscribing the
importation, sale, furnishing, administration,
etc., of each of these drugs, would require the
enactment of hundreds of individual statutes.
It thus appears that for the sake of
convenience the Legislature has included the
various offenses in one statute.

Id. at 556. In this way, Patterson unequivocally held that
section 11352 “creat[es] . . . separate crimes” based on
alternative actus rei elements, and does not merely describe
“alternative ways of satisfying a single [actus reus]
element.” Mathis, 136 S. Ct. at 2250.

Martinez-Lopez insists that Patterson has nothing to do
with Mathis’s distinction between elements and means
because it does not discuss what “the prosecution must
prove” and what must be “found by a jury []or admitted by
a defendant.” 136 S. Ct. at 2249 (citation and quotation mark
omitted). It is true that Patterson did not describe its
16 UNITED STATES V. MARTINEZ-LOPEZ

decision in these terms. However, Patterson did describe its
method as an abstract comparison of “elements,” 778 P.2d
at 553, which are—by definition—what the “prosecution
must prove to sustain a conviction,” Mathis, 136 S. Ct. at
2248 (quoting Black’s Law Dictionary 634 (10th ed. 2014)).
We will not assume that the California Supreme Court failed
to recognize the significance of this term, or that it did not
actually mean “elements” when it purported to compare
“elements.” Cf. Mathis, 136 S. Ct. at 2254 (“[A] good rule
of thumb for reading . . . decisions is that what they say and
what they mean are one and the same . . . .”).

Such an assumption is especially unfounded in light of
the California Supreme Court’s continued reliance on
Patterson and its elements-based rationale. See, e.g., People
v. Mason, 802 P.2d 950, 977 (Cal. 1991) (citing Patterson
and explaining that “[w]hether a felony is inherently
dangerous for purposes of the second degree felony-murder
rule is determined by viewing the elements of the felony in
the abstract” (emphasis added) (citations omitted)); People
v. Howard, 104 P.3d 107, 111 (Cal. 2005) (same).
Moreover, it is hard to see how Patterson is inapposite when
it expressly rejects Martinez-Lopez’s theory, then advanced
by Justice Stanley Mosk, that “[s]ection 11352 in effect
prohibits different ways [or means] of engaging in the same
targeted criminal conduct—trafficking in illegal narcotics.”
778 P.2d at 565 (Mosk, J., dissenting).

Nor is our conclusion swayed by the decisions cited by
Martinez-Lopez. Many of these decisions do not actually
conflict with our reading of Patterson. For example, People
v. Guiton affirmed a conviction for “selling or transporting”
cocaine. 847 P.2d 45, 46 (Cal. 1993). Martinez-Lopez
argues that this combined conviction proves that the actus
reus requirement is not an element. But Guiton expressly
 UNITED STATES V. MARTINEZ-LOPEZ 17

recognized that the jury “had to agree that the defendant
committed the same act.” Id. at 51. Guiton thus rests on
principles of harmless error, and does not conflict with our
reading of Patterson. See Guiton, 847 P.2d at 54
(concluding that there was no “reasonable probability that
the jury found the defendant guilty solely on the
[unsupported] sale theory”); see also People v. Mil, 266 P.3d
1030, 1039 (Cal. 2012) (“[T]he omission of one or more
elements of a charged offense . . . is amenable to review for
harmless error . . . .”). We come to the same conclusion with
regard to People v. Cornejo, 155 Cal. Rptr. 238 (Ct. App.
1979), which notes that a defendant violates section 11352
whether he sells or gives away heroin, id. at 250.

Finally, to the extent that the cited decisions do conflict
with Patterson, we find them unpersuasive. Many of these
decisions are unpublished, and we will not rely on them. See
Cal. Rules of Court 8.1115. Others predate, and have been
overruled to the extent that they conflict with, Patterson. See
Patterson, 778 P.2d at 566 (Mosk, J., dissenting) (citing
Cornejo, 155 Cal. Rptr. at 250; People v. Pierre, 1 Cal. Rptr.
223, 226 (Ct. App. 1959)). The remaining cases were
decided by California Courts of Appeal. Because the
California Supreme Court has the final say, we reject these
decisions as erroneous to the extent that they conflict with
Patterson. 4

4
Although our colleague Judge Berzon suggests that we are
presumptuous “to deem these state court decisions incorrect as to state
law,” see Dissenting & Concurring Op. 33, we reiterate that most of these
decisions can be explained by a finding of harmless error, see Mil,
266 P.3d at 1039, and the degree of conflict is likely minor.
18 UNITED STATES V. MARTINEZ-LOPEZ

We hold that the actus reus requirement is an element
under Mathis because the California Supreme Court
examined the elements of section 11352 in the abstract and
concluded that the statute separately defines “a variety of
offenses” including the “importation, sale, furnishing,
administration, etc., of each of [the listed] drugs.” Patterson,
778 P.2d at 556. Section 11352 is therefore divisible with
regard to its actus reus requirement. 5

Application of the Modified Categorical Approach

Because section 11352 is divisible with regard to both its
controlled substance requirement and its actus reus
requirement, we proceed to the third step in our analysis and
apply the modified categorical approach. Under this
approach, we look beyond the statutory text to a limited set
of documents “to determine which statutory phrase was the
basis for the conviction.” Descamps, 133 S. Ct. at 2285
(citation omitted). These documents include “the terms of a
plea agreement or transcript of colloquy . . . in which the

5
The partial concurrence suggests that our reading of Patterson is
in tension with People v. Vidana, 377 P.3d 805 (Cal. 2016). We
disagree. In Vidana, the California Supreme Court held that a defendant
cannot be subjected to multiple convictions for the same offense based
on “alternate legal theories.” Id. at 817. It observed that, to determine
whether two offenses are the same, a court must ask whether the
“[l]egislature meant to define only one [or multiple] offense[s].” Id. at
808. In Vidana, the court explained that the legislature had taken larceny
and embezzlement, which were previously treated as separate offenses,
and “consolidated [them] into the single offense of theft” via a number
of additions and amendments to the California Penal Code. Id. at 637.
The legislature has made no such amendments here, and Vidana does not
otherwise suggest that the California Supreme Court will revisit its
conclusion that the legislature defined “a variety of offenses” in
section 11352. Patterson, 778 P.2d at 556.
 UNITED STATES V. MARTINEZ-LOPEZ 19

factual basis for the plea was confirmed by the defendant.”
Shepard, 544 U.S. at 26.

In this case, the district court properly examined the plea
colloquy in which Martinez-Lopez was asked, “[O]n or
about December 31st, 1997, [did] you . . . sell cocaine
base—.42 grams of cocaine base?” He responded, “Yes.”
Based on this exchange, we can say—with the certainty that
Taylor demands—that Martinez-Lopez’s 1998 conviction
under section 11352 was for selling cocaine. Mathis, 136 S.
Ct. at 2257. Because this constitutes a drug trafficking
offense under the federal sentencing guidelines, the district
court correctly imposed a 16-level enhancement to the base
offense level for illegal reentry and correctly calculated a
guidelines sentencing range of 70 to 87 months.

Substantive Reasonableness

Finally, we reject Martinez-Lopez’s argument that his
within-range 77-month sentence is substantively
unreasonable for a third identical conviction. We afford
significant deference to a district court’s sentence under
18 U.S.C. § 3553 and reverse only if the court applied an
incorrect legal rule or if the sentence was “illogical,
implausible, or without support in inferences that may be
drawn from the facts in the record.” United States v.
Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc).

Martinez-Lopez argues that his 77-month sentence is
substantively unreasonable because his illegal reentry
offense and his underlying drug offense were nonviolent,
because he had a troubled childhood, and because he is
trying to establish a family in the United States. He also
argues that the 16-level enhancement led to an “artificially
. . . inflated” sentence.
20 UNITED STATES V. MARTINEZ-LOPEZ

Because we conclude that section 11352 is divisible and
the 16-level enhancement was proper, Martinez-Lopez’s
sentence is not artificially inflated. Moreover, although a
district court is not required to give a lengthy explanation for
its within-guidelines sentence, Rita v. United States,
551 U.S. 338, 356–57 (2007), the record shows that the
district court carefully weighed the facts now argued again
on appeal. It acknowledged that the prior offenses “did not
involve any violence, and [that] the Defendant is . . . trying
to finally have a family,” but found these facts insufficient
to warrant a below-guidelines sentence. Instead, the court
noted the obvious need for deterrence in light of Martinez-
Lopez’s recidivism and concluded that “the same length as
the last time [would be] sufficient for that.”

Finally, although Martinez-Lopez relies on United States
v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), that
case is easily distinguished. In Amezcua-Vasquez, we
concluded that a sentence was substantively unreasonable
when a defendant received a 16-level enhancement based on
a single conviction that occurred 20 years prior. Id. at 1056,
1058. But in this case, Martinez-Lopez has a lengthy
criminal record and has received multiple convictions
including for illegal reentry in 2003 and in 2006; and for
possession of heroin in 2012. In sum, Amezcua-Vasquez is
simply a different case from this recidivist offender.

Because a judge is not “required to sentence at a variance
with” the sentencing guidelines, United States v. Mitchell,
624 F.3d 1023, 1030 (9th Cir. 2010) (quoting United States
v. Corner, 598 F.3d 411, 416 (7th Cir. 2010)), and because
the sentence based on this record is not “illogical,
implausible, or without support,” Hinkson, 585 F.3d at 1263,
we affirm Martinez-Lopez’s 77-month sentence as
substantively reasonable.
 UNITED STATES V. MARTINEZ-LOPEZ 21

CONCLUSION

Section 11352 is divisible with regard to both its
controlled substance requirement and its actus reus
requirement. For this reason, the district court properly
applied the modified categorical approach and correctly
found that Martinez-Lopez pled guilty to selling cocaine,
which qualifies as a drug trafficking offense under the
federal sentencing guidelines and subjects Martinez-Lopez
to a 16-level enhancement to his base offense level. Finally,
the 77-month sentence, based on a properly calculated
guidelines range of 70 to 87 months, is substantively
reasonable.

AFFIRMED.

BERZON, Circuit Judge, with whom Chief Judge THOMAS
and Circuit Judge REINHARDT join, except as to Part IV,
concurring in part, and dissenting in part:

I respectfully dissent as to the majority’s decision on the
actus reus component of California Health and Safety Code
§ 11352(a). I concur with respect to the statute’s controlled
substance component, with a caveat.

I.

As the Supreme Court has underscored repeatedly, the
elements of the statute of conviction must be the sole focus
in every application of the categorical or modified
categorical approach. See Mathis v. United States, 136 S.
Ct. 2243, 2248, 2251–52 (2016); Descamps v. United States,
133 S. Ct. 2276, 2285 (2013). The Court has emphasized
that “elements” in this context is not a diaphanous word but
22 UNITED STATES V. MARTINEZ-LOPEZ

means one thing and one thing only: “the things the
‘prosecution must prove to sustain a conviction.’” Mathis,
136 S. Ct. at 2248 (quoting Black’s Law Dictionary 634
(10th ed. 2014)). The elements of a crime, the Court
reiterated, are “what the jury must find beyond a reasonable
doubt to convict the defendant” at trial, or “what the
defendant necessarily admits when he pleads guilty.” Id.
(emphasis added) (citations omitted).

The Court has explained that this focus on what is
“necessarily found or admitted,” id. at 2249, is required by
three distinct considerations: statutory requirements,
constitutional protections, and practical realities. See
Descamps, 133 S. Ct. at 2287. First, sentencing statutes
referring to prior “convictions” indicate that “Congress
intended the sentencing court to look only to the fact that the
defendant had been convicted of crimes falling within
certain categories, and not to the facts underlying the prior
convictions.” Id. (quoting Taylor v. United States, 495 U.S.
575, 600 (1990)) (internal quotation marks omitted).
Second, when a court increases the penalty for a crime based
on any fact beyond the fact of conviction, it jeopardizes the
Sixth Amendment protections described in Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000). Id. at 2288. Third, an
elements-only approach largely saves sentencing courts
from the “‘daunting’ difficulties and inequities” incident to
reviewing old plea colloquies or trial transcripts, both of
which may contain unclear or erroneous references to the
factual bases for conviction. Id. at 2289 (quoting Taylor,
495 U.S. at 601–02).

“The comparison of elements that the categorical
approach requires is straightforward when a statute sets out
a single (or ‘indivisible’) set of elements to define a single
crime.” Mathis, 136 S. Ct. at 2248. If an indivisible statute
 UNITED STATES V. MARTINEZ-LOPEZ 23

of conviction proscribes more conduct than the generic
federal offense, a federal court cannot impose penalties
based on that conviction. Id. at 2248–49. But identifying
the elements of a statutory crime is harder when statutes have
“a more complicated (sometimes called ‘divisible’)
structure.” Id. at 2249. Statutes that list various factors in
the alternative, some of which go beyond the generic federal
crime, may qualify as divisible, but they also may not.
Disjunctively worded statutes may identify several
“elements in the alternative, and thereby define multiple
crimes,” or may, instead, “enumerate[] various factual
means of committing a single element.” Id. So, when a
statute lists alternative factors, a sentencing court needs to
figure out which was intended—an enumeration of
alternative elements or of various means.

That determination is critically important. If the factors
are separate elements, then the sentencing court may employ
a “modified categorical approach” and look at “a limited
class of documents” in the record of conviction “to
determine what crime, with what elements, a defendant was
convicted of.” Id. This modified approach is not allowed,
however, if the statute lists “different methods of committing
one offense.” Id. at 2254 (quoting Descamps, 133 S. Ct. at
2285 n.2). Rather, in that circumstance, the statute must be
treated as indivisible and held categorically overbroad. See
Descamps, 133 S. Ct. at 2292–93.

Applying the modified approach without carefully
ensuring that a statute sets out alternative elements, not
merely alternative means, allows a court to “go beyond
identifying the crime of conviction to explore the manner in
which the defendant committed that offense.” Mathis,
136 S. Ct. at 2252. Premature application of the modified
approach thus “raise[s] serious Sixth Amendment concerns.”
24 UNITED STATES V. MARTINEZ-LOPEZ

Id. Accordingly, determining whether a disjunctively
worded statute refers to alternative elements or alternative
means is subject to the Court’s more general “demand for
certainty when identifying a generic offense.” Shepard v.
United States, 544 U.S. 13, 21–22 (2005); see also Mathis,
136 S. Ct. at 2257. When uncertainty exists, federal courts
must err on the side of caution. See generally Mathis, 136 S.
Ct. at 2257.

The practical reasons underlying the categorical
approach help illuminate the special dangers of improperly
applying the modified approach, particularly in cases like
this one, where the past conviction resulted from a guilty
plea, not a trial. As the Court noted in Descamps, defendants
“often ha[ve] little incentive to contest facts that are not
elements of the charged offense—and may have good reason
not to.” 133 S. Ct. at 2289. At plea hearings, defendants
may conclude it is in their best interest not to “irk”
prosecutors or the court “by squabbling about superfluous
factual allegations” irrelevant to those proceedings. Id. So,
because plea records are among the documents a sentencing
court can examine once use of the modified approach is
clearly warranted, see Shepard, 544 U.S. at 20, over-eager
deployment of the modified approach can lead to sentencing
enhancements based on information that “may be downright
wrong,” and can “deprive some defendants of the benefits of
their negotiated plea deals,” Descamps, 133 S. Ct. at 2289.

To aid in avoiding these potential problems and
concerns, the Court in Mathis provided detailed instructions
regarding how to apply the categorical approach to
disjunctively worded statutes so as to achieve the requisite
“demand for certainty,” 136 S. Ct. at 2257 (citation omitted),
as to whether, to sustain a valid conviction, a particular
factor must be found unanimously by a jury or admitted. See
 UNITED STATES V. MARTINEZ-LOPEZ 25

id. at 2256–57. These instructions require us to look, first,
to authoritative state law sources concerning whether each
disjunctively listed item is a separate element or just a
possible means of committing the same crime. Our inquiry
is over if “a state court decision definitively answers the
question,” or if “the statute on its face . . . resolve[s] the
issue.” Id. at 2256 (emphasis added). Where those
authoritative sources of state law fail to provide a definite
answer, Mathis instructs courts to take a limited “peek” at
the record of conviction to help determine whether the
statute is divisible. See id. (citation omitted).

The majority opinion here ignores the Court’s repeated
direction to focus only on what must be admitted or proven
beyond a reasonable doubt to sustain a conviction. See id. at
2254, 2257. And it fails fully to apply Mathis’s instructions.
The majority instead rests its divisibility analysis as to the
actus reus component of section 11352(a) on a state court
decision that fails to provide a definitive answer to the
question whether each enumerated act is a separate element
defining a separate crime under the statute. And it does not
reach Mathis’s third instruction.

After applying all three steps outlined in Mathis, I
conclude that it is most likely that the enumerated actions are
different means of committing the offense stated in
section 11352(a), not alternative elements, but that there are
some contrary indications. To decide whether the modified
categorical approach may be applied in this case, we would
have to make a fundamental legal determination about an
unresolved, repeatedly arising, and independently important
state law issue. I therefore suggest that a better approach in
this circumstance would be to certify to the California
Supreme Court the question:
26 UNITED STATES V. MARTINEZ-LOPEZ

To support a conviction under Health and
Safety Code section 11352(a)’s proscription
of “transport[ing], import[ing] into this state,
sell[ing], furnish[ing], administer[ing], or
giv[ing] away, or offer[ing] to transport,
import into this state, sell, furnish,
administer, or give away, or attempt[ing] to
import into this state or transport,” certain
referenced controlled substances, must a jury
find beyond a reasonable doubt, or must a
defendant necessarily admit, that the
defendant committed one particular listed
activity, e.g., “sell[ing],” with respect to the
controlled substance; or can a defendant be
convicted where the jury finds, or the
defendant admits, that one or more of the
enumerated acts applies, without specifying
which?

II.

To reach its conclusion regarding the divisibility of the
actus reus component of section 11352(a), the majority
relies almost exclusively on the lead opinion in People v.
Patterson, 778 P.2d 549 (Cal. 1989). 1 Patterson, in

1
Unless otherwise noted, references to Patterson or the Patterson
majority refer to the lead opinion authored and signed only by Justice
Kennard. Three justices concurred in the judgment, noting agreement
with maintaining the felony-murder rule by “refus[ing] to accept
defendant’s invitations (1) to abrogate the doctrine entirely, or (2) to
permit consideration of other felonies not involved in the case in
determining the inherent dangerousness of the defendant’s own offense.”
778 P.2d at 558 (Lucas, C.J., concurring in part and dissenting in part).
Although the concurrence authored by Chief Justice Lucas did not
explicitly sign on to the lead opinion’s reasoning on the second point, I
 UNITED STATES V. MARTINEZ-LOPEZ 27

isolation, could be read as the majority suggests, by
extrapolation based on the use of the term “element.” But
the precise issue we must decide for purposes of applying
the modified categorical approach was, as the majority
opinion recognizes, not addressed in Patterson. Maj. at 15–
16. That question, again, is what Martinez-Lopez
necessarily admitted in his guilty plea—i.e., what the
prosecutor would have been required to prove beyond a
reasonable doubt at trial to secure a conviction under Health
and Safety Code section 11352(a). See Mathis, 136 S. Ct. at
2249.

As Patterson does not squarely address the issue before
our court today, the majority cannot—and, indeed, does
not—say that the “state court decision definitively
answer[ed] the question.” Id. at 2256. Yet, once more, for
our present purposes, to apply the modified categorical
approach a federal court must be able to say that a state law
decision dispositively answers the means-or-elements
question. The majority’s reliance on Patterson is thus
improper under Mathis. See id.

Applying an appropriate Mathis analysis, the divisibility
of section 11352(a)’s actus reus requirement cannot be
definitively determined by looking at other authoritative
sources of state law either—most of which point in the
opposite direction from Patterson—or by taking a “peek” at
the conviction documents. I consider first the shortcomings
of the state law relied upon by the majority and then proceed

am willing to assume, for present purposes, the concurrence’s basic
agreement with Justice Kennard’s reasoning as the premise for its
assertion that “other felonies not involved in the case” should not be
considered. Id. I note, however, that the absence of a true majority
opinion in Patterson is yet one more reason for certifying the issue I
enunciated at the outset, see supra Part I.
28 UNITED STATES V. MARTINEZ-LOPEZ

to review (1) other authoritative sources of California law
and (2) the conviction record.

A.

That Patterson does not provide a definitive answer to
our question here is evident for three reasons. First, the lead
opinion in Patterson does not engage with the then-existing
California case law that did address the pertinent question
here—what facts must be proven beyond a reasonable doubt
to sustain a conviction under section 11352(a). Second, no
California appellate court has cited or relied on Patterson
when examining the issue actually before us. Third, the
felony-murder rule’s “viewed-in-the-abstract” test for
“inherently dangerous” felonies is dissimilar, in several
fundamental ways, from the elements-only categorical
approach the Court has prescribed as the only way to meet
“Taylor’s demand for certainty.” Mathis, 136 S. Ct. at 2257
(citation omitted).

1.

The majority in Patterson did not discuss the essential
elements that must be proven to sustain a conviction under
California Health and Safety Code section 11352(a) or its
predecessors, former sections 11500 and 11501. Although
there were several then-existing appellate court holdings
relevant to that issue, the lead opinion in Patterson did not
mention any of them. And although Justice Mosk,
dissenting in Patterson, did discuss that issue and the cases
concerning it at length, the Patterson lead opinion did not
engage at all with the dissent’s presentation in that regard.

For example, the Patterson majority made no mention of
People v. Cornejo, 155 Cal. Rptr. 238 (Ct. App. 1979),
which had held that a “jury properly convicted” the
 UNITED STATES V. MARTINEZ-LOPEZ 29

defendant of a “violation of Health and Safety Code
section 11352, sale of heroin,” even though the defendant
had made no sale but instead gave away a small sample. Id.
at 240, 250. Nor did Patterson discuss People v. Holquin,
40 Cal. Rptr. 364 (Ct. App. 1964), disapproved of on other
grounds by People v. Daniels, 537 P.2d 1232, 1235–36 (Cal.
1975). Holquin examined the legislative history and
statutory language of section 11352(a)’s immediate
predecessor, section 11501, and held that it

was enacted to prevent traffic in narcotics and
to prevent a narcotic from getting into the
hands of those having no right to possess it.
To that end the section makes it a criminal
offense to effect an illegal change of
possession of a narcotic, regardless of the
means used to accomplish the transfer. . . .

The language of the statute makes no
distinction among the various means for
change of possession; the crime is the same
whether the transfer of a narcotic is
accomplished by selling, furnishing,
administering, or giving it away.

Id. at 402 (emphasis added). The Patterson majority
similarly left out any mention of People v. Pierre, 1 Cal.
Rptr. 223 (Ct. App. 1959), which had held it was “[i]n no
respect . . . improper procedure” for the charging document,
jury instructions, and verdict all to have stated the offense
under section 11500 as selling, furnishing, or giving away a
named narcotic, as the specification of the act (selling,
furnishing, or giving away) was not necessary. Id. at 226.
30 UNITED STATES V. MARTINEZ-LOPEZ

Based on a review of these pre-Patterson cases, Justice
Mosk concluded in his partial dissent in Patterson that the
actus reus component of section 11352(a) lists alternative
means, not elements. 778 P.2d at 566. Far from “expressly
reject[ing]” that contention, as the majority here maintains,
see Maj. Op. 16, the Patterson majority is entirely silent on
the specific question for which we now require an answer—
whether a particular actus reus variant in section 11352(a)
must be proven to a jury or admitted by the defendant.

The majority steps in to offer a voice where Patterson
was mute, answering the question left unanswered by
Patterson. Patterson overruled Cornejo and Pierre, the
majority proclaims, to the extent those two cases conflict
with Patterson’s holding, with regard to the issue before
us—an issue, again, not directly involved in Patterson. Maj.
Op. 17. California courts do not agree with that statement,
unless “the extent that [the older cases] conflict” with
Patterson is trifling. For instance, in People v. Haider, 40
Cal. Rptr. 2d 369 (Ct. App. 1995), the California Court of
Appeal cited Cornejo to affirm the defendant’s one-count
conviction for “selling or giving away” cocaine in violation
of section 11352(a). “Although [the defendant] had only
two dollars on his person when arrested,” the Court of
Appeal held there was “substantial evidence that [Haider]
sold or gave away cocaine.” Id. at 374. See also cases cited
infra Section II.A.2.

As to the post-Patterson cases that parallel Cornejo,
Holquin, and Pierre with regard to the question that is
critical to divisibility, the majority announces that they are
“erroneous,” as in conflict with Patterson. Maj. Op. 17. The
majority, in short, reads into Patterson a ruling that is not
there and then reconciles its conclusion with conflicting
California cases by pronouncing them bad law. Far from
 UNITED STATES V. MARTINEZ-LOPEZ 31

pointing to a definitive answer given by an authoritative
source of state law, the majority decides for itself what
California law is on the critical question. That activist
approach to identifying the essential elements under a state
statute is not sanctioned by Mathis or any other pertinent
opinion.

2.

The majority does more than overstep the bounds of a
Mathis analysis; it quite probably comes to the wrong
conclusion concerning whether California courts regard
Patterson as deciding the specific issue we face. Not a single
California appellate court has cited Patterson—let alone
concluded it was dispositive—when considering whether a
particular actus reus from section 11352(a)’s enumerated list
must be charged and proven. 2

2
Of the 95 California Supreme Court and Courts of Appeal cases
citing Patterson, all but four do so to discuss the proper application of
the second degree felony-murder or implied malice doctrines. None of
the four exceptions concern section 11352 or similar statutes. See In re
Christian S., 872 P.2d 574, 585 (Cal. 1994) (Mosk, J., concurring) (citing
Patterson as part of a wider discussion about the “unnecessary
complications in California homicide law”); People v. Sargent, 70 Cal.
Rptr. 2d 203, 205, 214 (Ct. App. 1997) (Puglia, J., dissenting)
(referencing Patterson for proposition that “different standards of
culpability apply depending on the context in which the proscribed
conduct takes place,” in a case relating to mens rea requirements under
a felony child abuse statute that includes multiple “branches . . . of
prohibited conduct,” each marked by bracketed numbers), rev’d, 970
P.2d 409 (Cal. 1999); People v. McGee, 2005 WL 859411, at *13 (Cal.
Ct. App. Apr. 15, 2005) (unpublished) (same, for general proposition that
“the Legislature has broad power to define crimes,” such as by amending
substantive law to remove an element of an offense); In re Andrew R.,
2002 WL 31529056, at *4 (Cal. Ct. App. Nov. 13, 2002) (unpublished)
32 UNITED STATES V. MARTINEZ-LOPEZ

The California Supreme Court, for example, made no
mention of Patterson when it decided that reversal was not
required where evidence was sufficient to support a
conviction for “selling or transporting cocaine” in violation
of section 11352 under only one of the two “theories”
presented by the prosecution. See People v. Guiton,
847 P.2d 45, 54 (Cal. 1993). Nor was Patterson referenced
in People v. Lynch, 2006 WL 2988461, at *2 (Cal. Ct. App.
Oct. 20, 2006) (unpublished), which held that “selling or
furnishing cocaine are merely two different ways or methods
by which [the defendant] might have committed the
particular crime.” 3 Similarly, there is no discussion of
Patterson in In re W.J., 2003 WL 1880159, at *1 (Cal. Ct.
App. Apr. 16, 2003) (unpublished). There, the Court of
Appeal affirmed a minor’s commitment order for “sale or
transportation” of cocaine base in violation of
section 11352(a). The court also rejected the minor’s
contention that possession for sale of cocaine base was
necessarily included in the charged section 11352(a)
offense, because the language of the charge tracked
section 11352(a)’s statutory definition and that section “may

(same, for its discussion of factors elevating offense of false
imprisonment to felony).

3
“[W]e may consider unpublished state decisions, even though such
opinions have no precedential value.” Emp’rs Ins. of Wausau v. Granite
State Ins. Co., 330 F.3d 1214, 1220 n.8 (9th Cir. 2003). In this case,
where actual charging and conviction practices are pertinent,
unpublished cases are relevant as indicators of commonly accepted state
court practices.
 UNITED STATES V. MARTINEZ-LOPEZ 33

still be violated by one who transports narcotics without
possession of them.” 4 Id. at *2.

Once again, it is presumptuous for a federal court to
deem these state court decisions incorrect as to state law. I
would adopt a reading that, instead of blithely declaring the
post-Patterson state decisions on the directly pertinent issue
mistaken, reflects the comity due state courts when faced
with state law questions. Doing so, I would conclude that
the post-Patterson decisions indicate, at a minimum, that, on
the question the Court requires us to answer here—i.e.,
whether a particular actus reus must be proven beyond a
reasonable doubt—Patterson is not dispositive. And I
would also conclude that the California Supreme Court, if
asked directly about the question we face, might well decide
that the actus reus factors listed in section 11352(a) are
interchangeable means of committing a single offense, so
that no one of them need be found by a jury or admitted in a
guilty plea.

3.

It should be enough that California courts do not see
Patterson as relevant, let alone controlling, precedent
regarding the charging and conviction issues we must
4
Additionally, many other state court decisions on other issues note,
without any concern, convictions for “transportation or sale” of a
controlled substance in violation of section 11352(a). See, e.g., People
v. Keith, 185 Cal. Rptr. 3d 768, 769 (Ct. App. 2015); People v. Valencia,
172 Cal. Rptr. 3d 1, 2 (Ct. App. 2014); People v. Fielder, 8 Cal. Rptr. 3d
247, 250 (Ct. App. 2004); People v. Superior Court, 7 Cal. Rptr. 3d 74,
76 (Ct. App. 2003); People v. Munoz, 104 Cal. Rptr. 2d 470, 471 (Ct.
App. 2001); People v. Navarez, 215 Cal. Rptr. 519, 528 (Ct. App. 1985);
see also People v. Martinez, 2017 WL 999246 at *4 (Cal. Ct. App. March
15, 2017) (unpublished); People v. Keeney, 2016 WL 1089392 at *1–2
(Cal. Ct. App. March 21, 2016) (unpublished).
34 UNITED STATES V. MARTINEZ-LOPEZ

decide. I note in addition that it is unsurprising that
Patterson has not been relied upon as authoritatively stating
California law on the question here at issue, as there are
bases for deciding the issue before the court in Patterson and
the issue in this case differently.

For one thing, when addressing the Patterson issue—i.e.,
the proper application of the felony murder doctrine—
California courts have used “means” and “elements”
interchangeably in defining and applying the “viewed-in-
the-abstract” approach to delineating “inherently dangerous”
crimes. In People v. Henderson, 560 P.2d 1180 (Cal. 1977),
overruled on other grounds by People v. Flood, 957 P.2d
869 (Cal. 1998), for instance, the California Supreme Court
examined the four factors that could elevate false
imprisonment to a felony (namely, violence, menace, fraud,
or deceit) and concluded that “the felony offense viewed as
a whole in the abstract is not inherently dangerous to human
life.” Id. at 1184. “While the elements of violence or
menace by which false imprisonment is elevated to a felony
may involve danger to human life,” Henderson held, “one
who commits felony false imprisonment by means of fraud
or deceit presents no danger significantly greater than one
who commits misdemeanor false imprisonment.” Id.
(emphasis added). That cross-usage indicates that the
distinction between means and elements is not at the
forefront in the “inherently dangerous felony” context. But
it is when deciding what must be proven to a unanimous jury
or admitted by the defendant, the question here.

Moreover, although the principles underlying both
Mathis and Patterson reflect concern about limiting certain
collateral effects, the very different contexts implicate not
the same feared impacts but different ones. Notably, not one
of the important grounds underpinning the Court’s
 UNITED STATES V. MARTINEZ-LOPEZ 35

categorical approach is provided by the California Supreme
Court as a reason for the “viewed-in-the-abstract” test
deployed in California’s second degree felony-murder cases.
See Descamps, 133 S. Ct. at 2287–89.

First, the “inherently dangerous felony” issue in
Patterson and similar cases, however decided, does not
implicate the Sixth Amendment’s right to trial by jury.
Rather, in the felony-murder context, courts are concerned
about fact-specific circumstances that might “poison the
well” when a judge considers as a legal question whether a
defendant is exposed to a grave additional charge and
conviction, murder. In that context, the “viewed-in-the-
abstract” analysis

is compelled because there is a killing in
every case where the rule might potentially
be applied. If in such circumstances a court
were to examine the particular facts of the
case prior to establishing whether the
underlying felony is inherently dangerous,
the court might well be led to conclude the
rule applicable despite any unfairness which
might redound to so broad an application: the
existence of the dead victim might appear to
lead inexorably to the conclusion that the
underlying felony is exceptionally hazardous.

Patterson, 778 P.2d at 554 (quoting People v. Burroughs,
678 P.2d 894, 897–98) (internal quotation mark omitted),
overruled on another ground by People v. Blakeley, 999 P.2d
675, 679 (Cal. 2000).

Additionally, none of the practical pitfalls associated
with tracking down, reviewing, and working from old court
records, often from another jurisdiction, present themselves
36 UNITED STATES V. MARTINEZ-LOPEZ

in the felony-murder context. Instead, in cases similar to
Patterson, any collateral consequences generally arise in the
same criminal proceeding. Thus, issues that may arise if the
dangerousness of an underlying felony is determined
erroneously can generally be corrected on direct appeal or
remand. In Patterson, for instance, the court held that if the
trial court concluded on remand that the felony Patterson
committed was indeed inherently dangerous, the “defendant
must be allowed to withdraw his guilty plea to the charges
of violating Health and Safety Code section 11352, with
credit for any interim time served.” 778 P.2d at 557. In the
present context, in contrast, any doubts we have about what
was decided in the earlier case cannot be tested by referring
the issue back to the original trial (or appellate) court.

Relatedly, and perhaps most significantly, in the context
of the felony murder doctrine’s “inherently dangerous
felony” rule, no California statute requires that the courts
look only to convictions, as opposed to the facts underlying
the offenses committed. Cf. Mathis, 136 S. Ct. at 2252
(comparing sentencing statutes that refer to “an offense . . .
committed,” and those that refer to convictions and thereby
require sentencing courts to “focus[] on only ‘the elements
of the statute of conviction’”) (emendation in original)
(citations omitted). Presumably because there is no
limitation to a “conviction,” once a California court decides
that a given statute states separate felonies for the purposes
of the felony-murder rule, it may look to the evidence or
factual theories presented in a case to determine the variant
or type of felonious conduct at issue. And, in practice, when
drug statutes like section 11352(a) are at issue, application
of the special felony-murder doctrine rules often requires a
look to the facts of a case to determine whether or not the
offense committed was one of the “inherently dangerous”
ones enumerated in the statute. Charging documents and
 UNITED STATES V. MARTINEZ-LOPEZ 37

abstracts of judgment often do not specify any particular act.
See, e.g., the cases cited supra note 4.

In People v. Taylor, 8 Cal. Rptr. 2d 439 (1992), for
example, a California Court of Appeal examined whether
furnishing or selling PCP was inherently dangerous under
the new standards outlined in Patterson. The defendant had
been charged with and convicted of “seven counts of sale,
furnishing, or transportation of PCP,” in violation of a statute
that, much like section 11352(a), proscribed the
“importation, transportation, furnishing, administering, sale
and giving away of” a controlled substance. Id. at 441–42 &
n.2; see also Cal. Health & Safety Code § 11379.5(a). So
why did the Court of Appeal decide that the relevant inquiry
for the “inherently dangerous felony” test involved only the
“selling or furnishing” of PCP, not its “transportation”? See
id. at 442–43. Because the California courts could, and did,
look to the facts of the case, concluding that “[a]lthough the
statute [of conviction also] encompasses importation,
transportation, . . . administering, . . . and giving away of
PCP . . . the evidence [in the case] supported a sale as well
as furnishing.” Id. at 442 n.2. As the evidence implicated
the selling or furnishing aspects of the offense, the court did
not concern itself with the broader statutory crime of
conviction. But, as—once again—the Supreme Court has
stressed repeatedly, most recently in Descamps and Mathis,
in applying the categorical approach, federal courts are
“barred from making,” as the California court did in Taylor,
any fact-based determination about “what the jury in a prior
trial must have accepted as the theory of the crime.” Mathis,
136 S. Ct. at 2252 (quoting Descamps, 133 S. Ct. at 2288).

* * *

In sum, the Patterson majority made no attempt to align
its holding with existing California case law directly
38 UNITED STATES V. MARTINEZ-LOPEZ

addressing the requisites of section 11352(a) for charging,
jury instruction, and conviction purposes, i.e., the pertinent
issue here. And no California appellate court has ever cited
Patterson in any analysis of section 11352(a)’s elements, or
those of similar statutes. As California courts have not taken
that step, we should not hold that Patterson’s felony-murder
holding must be extended to the entirely distinct issue we
have before us. 5

B.

Nor does other California case law provide a definitive
answer to our question.

Most promising, perhaps, is People v. Guiton, 847 P.2d
at 46, 51–54. In Guiton, the California Supreme Court
considered whether a conviction for “selling or transporting
cocaine” in violation of section 11352 could be affirmed
where the evidence was insufficient to show a “sale,” but
was sufficient to prove, beyond a reasonable doubt, that the
defendant had “transported” the drug. In its analysis, Guiton
highlighted that the jury had been instructed that unanimity
was required as to the criminal “act” the defendant
committed. 6 Id. at 51.

5
Notably, Patterson emphasized that the “anachronistic” and
“disfavored” felony-murder rule “deserves no extension beyond its
required application.” 778 P.2d at 554 (internal quotation marks and
citations omitted).

6
Under California law, “the unanimity instruction is appropriate
‘when conviction on a single count could be based on two or more
discrete criminal events,’ but not ‘where multiple theories or acts may
form the basis of a guilty verdict on one discrete criminal event.’” People
 UNITED STATES V. MARTINEZ-LOPEZ 39

But Guiton did not specify the relevant “act” in that case.
847 P.2d at 51. Instead, Guiton discusses transportation and
sale as “alternative theories”—not alternative elements—
one of which was unsupported by the evidence. 7 The court
then held that the sufficient evidence of the “independently
valid ground of transporting cocaine” was enough to assume
the jury’s verdict valid. Id.

Guiton may indicate that the actus reus component of
section 11352(a) defines different acts requiring juror
unanimity. But Guiton’s discussion may also indicate that,
if both “theories” had been supported and Guiton had been
charged and convicted in two different counts, the
convictions would not survive because “dual convictions for
the same offense based on alternate legal theories would
necessarily be prohibited.” People v. Vidana, 377 P.3d 805,
817 (Cal. 2016); see also People v. Roberts, 254 P.2d 501
(Cal. 1953), discussed immediately below. Guiton thus
leaves the key question here unanswered.

Other California cases are in greater tension with the
majority’s conclusion. Most notably, the California
Supreme Court recently breathed new life into People v.
Roberts, which held that possession, sale, and transportation
of a controlled substance charged under a single statute
constituted only one criminal offense when completed in the
same course of conduct. See People v. Correa, 278 P.3d

v. Russo, 25 P.3d 641, 647 (Cal. 2001) (quoting People v. Perez, 26 Cal.
Rptr. 2d 691, 696 (Ct. App. 1993)) (emphasis added).

7
In considering the harmlessness of instructing the jury on an
unsupported ground, Guiton mentions that the prosecutor at trial noted
to the jury that they had to agree on at least one of the theories presented.
847 P.2d at 54 n.2. Guiton did not, however, affirmatively subscribe to
that view.
40 UNITED STATES V. MARTINEZ-LOPEZ

809, 815 (Cal. 2012). As Correa observed, the defendant in
Roberts had been convicted on three counts of “violating
[section 11352(a)’s predecessor] in three different ways on
the same occasion by illegally transporting, selling, and
possessing heroin.” Id. Roberts held that the three acts were
improperly “charged and adjudged as separate crimes,” and
reversed the conviction as to two of the three counts.
254 P.2d at 505. Because the “acts constitut[ed] but one
offense when committed by the same person at the same
time,” the three counts “charge[d] but one crime” and could
support only one conviction. Id. (quoting People v. Clemett,
280 P. 681 (Cal. 1929)) (emphasis added).

Correa’s clarification was necessary because Roberts’s
holding had been entwined for some years in the case law
interpreting California Penal Code § 654, which concerns
the propriety of multiple punishments.8 See Correa,
278 P.3d at 813–14; see also Neal v. California, 357 P.2d
839, 843 n.1 (Cal. 1960). As Correa explained, Roberts
“involved multiple convictions that were held to be improper

8
California Penal Code section 654 bars multiple punishments when
a single course of conduct is criminalized under various sections of
California’s criminal codes. Its counterpart regarding multiple charges
and convictions, Penal Code section 954, allows the state to charge a
defendant in separate counts for “different offenses connected together
in their commission,” “different offenses of the same class of crimes,”
or “different statements of the same offense,” and to convict a defendant
of any number of the offenses charged. Vidana, 377 P.3d at 816; Cal.
Pen. Code § 954. Because section 954 had been interpreted as broadly
permitting multiple convictions, California courts typically applied
section 654 to bar multiple punishments without separate analysis
regarding whether multiple convictions may stand when an individual
had been convicted on multiple counts for a single act or course of
conduct. See id. at 808, 817 (citing People v. Gonzalez, 335 P.3d 1083
(Cal. 2014); People v. Ortega, 968 P.2d 48 (Cal. 1998); People v.
Pearson, 721 P.2d 595 (Cal. 1986)).
 UNITED STATES V. MARTINEZ-LOPEZ 41

without any reliance on section 654,” Correa, 278 P.3d at
813 (emphasis in original), thereby reaffirming the Roberts
holding as relevant—indeed, arguably controlling—here.

More recently, in Vidana, the California Supreme Court
emphasized that, although multiple charges for the “same
offense” are generally permissible, “dual convictions for the
same offense based on alternate legal theories” are not.
377 P.3d at 816–17 (emphasis added). Roberts had held that
the various actions enumerated in section 11352(a)’s
predecessor statute together stated “but one offense,” so that
“when committed by the same person at the same time,” a
complaint that states two or more of the actus reus
alternatives “charge[s] but one crime.” 254 P.2d at 505
(citation omitted). In distinguishing between multiple
convictions based on charges of different offenses and those
based on multiple charges that state a single offense, Roberts
is fully consistent with Vidana, again confirming its
continued vitality.

In my view, the California Supreme Court’s recent
revitalization of Roberts comes much closer than Patterson
to definitively answering the question we face here. Because
the state court decisions can be viewed as pointing in more
than one direction (although much more strongly in one than
in the other), all that is clear, in my view, is that California
courts have not definitively determined that one of the
enumerated acts in section 11352(a) must be found
unanimously by a jury or admitted by the defendant.

C.

Mathis further instructs that a “statute on its face may
resolve the [means/elements] issue” by defining different
punishments for the statutory alternatives or by
“identify[ing] which things must be charged (and so are
42 UNITED STATES V. MARTINEZ-LOPEZ

elements) and which need not be (and so are means).” 136 S.
Ct. at 2256. Section 11352(a) on its face provides no clear
answer regarding the divisibility of the actus reus
component. It gives no notice of what must be charged or
proven to sustain a conviction and does not define different
levels of punishment for different types of acts. See Cal.
Health & Safety Code § 11352(a).

D.

Finally, where, as here, there is no definitive answer
from authoritative sources of state law, Mathis instructs
reviewing courts to “peek” at the conviction record as an
indication of whether the statute lists separate elements or
merely separate means. 136 S. Ct. at 2257 (citation omitted).
As Mathis explained, if the indictment and jury instructions
both refer to a disjunctive list of factors or use a vague
“umbrella term” (e.g., “premises”), there is “as clear an
indication as any that each alternative is only a possible
means of commission.” 9 Id. at 2257. On the other hand, if
the indictment and jury instructions “referenc[e] one
alternative term to the exclusion of all others,” that “could
indicate” that the item is part of list of separate elements. Id.
Notably, the Court highlights that “such record materials
will not in every case speak plainly, and if they do not, a
sentencing judge will not be able to satisfy ‘Taylor’s demand
for certainty’ when determining whether a defendant was
convicted of a generic offense.” Id. (citation omitted).

9
When a guilty plea is entered in lieu of trial, there are no correlative
jury instructions, so a plea agreement or transcript of the plea colloquy
may be referenced. United States v. Marcia-Acosta, 780 F.3d 1244,
1250 (9th Cir. 2015) (citing Shepard, 544 U.S. at 26).
 UNITED STATES V. MARTINEZ-LOPEZ 43

Turning then to the record documents, I conclude that
they strongly indicate that the actus reus factors are means
of committing a section 11352(a) offense, not separate
elements. Martinez-Lopez’s felony complaint charged him
with “the crime of SALE/ TRANSPORTATION/ OFFER
TO SELL CONTROLLED SUBSTANCE, in violation of
HEALTH AND SAFETY CODE SECTION 11352(a).”
The complaint went on to allege that Martinez-Lopez “did
unlawfully transport, import into the State of California, sell,
furnish, administer, and give away, and offer to transport,
import into the State of California, sell, furnish, administer,
and give away, and attempt to import into the State of
California and transport a controlled substance.” The
abstract of judgment noted that Martinez-Lopez was
sentenced to a four-year term of imprisonment for
“SALE/TRANS. COCAINE BASE,” and to an additional
three-year term for an enhancement based on a prior offense.
In Martinez-Lopez’s plea colloquy, the prosecutor stated the
factual basis for the plea as “on or about December 31, 1997,
you did sell cocaine base – .42 grams of cocaine base.”
Martinez-Lopez affirmed that factual basis.10

Although the plea colloquy transcript specifies the
factual basis for conviction as “selling,” the conviction
documents do not. Under the categorical approach, the key
issue is, once again, the elements of the crime of conviction.
An admission to a specific factual basis for the conviction
says little about the scope of the statutory offense of
conviction, as the defendant often admits to the means by
which he committed a broad element of the offense. See
supra Part I, pp. 24–24 (discussing why factual admissions

10
At the plea hearing, the judge initially stated the charged count—
erroneously—as “sales involving cocaine;” the prosecutor similarly
stated the charge as “sale of a controlled substance, in this case cocaine.”
44 UNITED STATES V. MARTINEZ-LOPEZ

cannot be independently controlling under the categorical
approach if the offense has a broad element that can be
committed in various ways). A sentencing court cannot tell
whether the admitted factual basis is premised on an
admission of a specific element of the crime—sale—or,
more likely, simply provides a more detailed description of
the conduct or means by which the broader crime charged
and reflected in the abstract of judgment was committed.

The “peek” at the record in this case thus leaves me
where the other Mathis clues to resolving the means/element
question did—with the strong likelihood that the various acts
described in section 11352(a) are interchangeable means of
committing the offense.

III.

Mathis indicated that, in most cases, federal sentencing
courts should readily be able to answer the question we face
today by looking only to authoritative sources of state law
or, if necessary, peeking at the record of conviction. 136 S.
Ct. at 2256–57. Indeterminacy after both examinations, it
posited, would be “more the exception than the rule.” Id. at
2257.

As I understand the line of cases culminating in Mathis,
the certainty requirement cuts in a specific direction: Where
there is indeterminacy after all the modes of inquiry
prescribed in Mathis are exhausted, a federal court must treat
the state statute as indivisible with regard to the contested
generic element, and so may not apply the modified
categorical approach. See id. (explaining that where the
prescribed sources do not “speak plainly, . . . a sentencing
judge will not be able to satisfy ‘Taylor’s demand for
certainty’ when determining whether a defendant was
convicted of a generic offense” (quoting Shepard, 544 U.S.
 UNITED STATES V. MARTINEZ-LOPEZ 45

at 21)). Applying that precept, we could here conclude that
because, for reasons I have given, there is no certainty that
the actus reus enumeration in section 11352(a) states
elements rather than means, we should treat that aspect of
the statute as not divisible. We would then conclude that we
cannot apply the modified categorical approach.

In this particular instance, however, I believe our best
route is to ask the California Supreme Court to provide a
definitive answer to the precise question presented in this
case. Certifying means-or-elements questions to state courts
ordinarily should not be necessary, for the reasons indicated
in Mathis. Here, the circumstances are not ordinary, for
three related reasons.

First, these California drug convictions arise exceedingly
frequently in federal cases applying the categorical
approach.

Second, our question, although of exceptional
importance in federal criminal (and immigration) cases, is
not, at the end of the day, a question of federal law. Instead,
despite the majority’s eagerness to conclude otherwise, we
are faced with questions of unresolved state law. Whether
section 11352(a)’s actus reus requirement is divisible under
Mathis involves purely state law questions on charging and
jury practices. See 136 S. Ct. at 2256. “Through
certification of . . . unsettled questions of state law for
authoritative answers by a State’s highest court, a federal
court may save ‘time, energy, and resources and hel[p] build
a cooperative judicial federalism.’” Arizonans for Official
English v. Arizona, 520 U.S. 43, 77 (1997) (quoting Lehman
Brothers v. Schein, 416 U.S. 386, 391 (1974)). Here, in
particular, the “more cautious approach [of certification is]
in order,” id., because, “truth be told, [I] find the state
46 UNITED STATES V. MARTINEZ-LOPEZ

decisions on [the question] contradictory and confusing,”
Descamps, 133 S. Ct. at 2291.

Third, whichever way we decide the undecided state law
questions, there will be substantial practical problems for
state courts. As such convictions under section 11352(a) and
similar drug statutes so often occur in California, the answer
to the question whether each factor listed in the statute’s
actus reus component must be proven to a jury or specifically
admitted in a guilty plea is of great consequence in the state
court system. If we accept the majority’s answer, then
prosecutors, defendants, and courts in California would be
left with some state court cases saying that defendants can
be charged and convicted for only one offense for all the
enumerated conduct, and an en banc panel of this court
saying that those cases are erroneous and that each
enumerated act is a separate element of a separate offense.
We would then invite an influx of habeas appeals relating,
for example, to duplicitous charges, convictions sustained
despite failure to ensure jury unanimity, or ambiguous guilty
pleas. Alternatively, if California courts did follow the
majority’s conclusion here, the state will have to change
widespread charging and trial practices.

If we instead followed my suggestion that the majority’s
conclusion is at the very least highly questionable and that
section 11352(a) must therefore be treated as indivisible for
federal purposes, confusion could also follow in this oft-
litigated area. As our conclusion would only be that the
California law as to the unit of charge and conviction is
unclear, we might encourage widespread challenges to
California convictions in which the specific act committed is
not unanimously found or admitted.
 UNITED STATES V. MARTINEZ-LOPEZ 47

I would therefore certify to the California Supreme Court
the question enunciated at the outset of this opinion. See Cal.
R. Ct. 8.548.

IV.

I concur, with a caveat, in the majority’s decision on the
controlled substances requirement.

The cases cited by the majority as to that aspect of
section 11352(a)—In re Adams, 536 P.2d 473 (Cal. 1975),
People v. Chung, 187 Cal. Rptr. 3d 873 (Ct. App. 2015), and
People v. Monarrez, 78 Cal. Rptr. 2d 247 (Ct. App. 1998)—
did not expressly address the validity of multiple convictions
under California Health and Safety Code § 11352 for single
acts or courses of conduct involving different controlled
substances. But, as the majority concludes, in addressing
whether multiple punishments should be upheld, the courts
appear to have necessarily assumed that the multiple
convictions were proper under California law. I also observe
that the charging and conviction documents in California
appear routinely to specify a particular drug, the opposite of
the practice with regard to the enumerated acts. See, e.g., the
cases cited supra note 4.

People v. Martin, 86 Cal. Rptr. 3d 858, 861 (Ct. App.
2008), does not support a contrary conclusion. In Martin,
the defendant was charged with possession of a controlled
substance, cocaine base, in violation of section 11350(a).
The jury received written jury instructions that specified
“cocaine,” instead of “cocaine base,” as the controlled
substance at issue. The oral instructions, on the other hand,
correctly noted “cocaine base.” In holding that any
instructional error was harmless, the Court of Appeal
highlighted that “[t]he jury was correctly instructed on the
48 UNITED STATES V. MARTINEZ-LOPEZ

elements of the crime of possession of a controlled
substance.”

I do, however, have one caution regarding the majority’s
controlled substance holding: There have been changes in
related California legal principles in recent years that may
have undermined the assumptions in Adams as to whether a
specific controlled substance is an element that must be
proven beyond a reasonable doubt to a jury or admitted by
the defendant. For many years, including when Adams was
decided, California courts understood Penal Code
section 954 to be broadly permissive of multiple convictions
wherever multiple charges were proper, including when
charges stated “different statements of the same offense.”
See Pearson, 721 P.2d at 596; People v. Tideman, 370 P.2d
1007, 1011 (Cal. 1962). On that understanding, the
assumption in Adams that there could be separate
convictions under section 11352 for each particular
controlled substance was appropriate.

The California Supreme Court has recently clarified,
however, that Penal Code section 954 is not as broad as
believed at the time of Adams. In particular, multiple
convictions cannot stand when charges simply state
“different statements of the same offense,” as opposed to
“different offenses of the same class of crimes.” Vidana,
377 P.3d at 816; see also Cal. Pen. Code § 954. No
California court has yet addressed whether Vidana changes
the multiple convictions analysis in cases involving drugs of
various types. Until California courts address that issue, I
see no reason to question the weight of California authority,
as well as common practice, which indicate that a specific
controlled substance generally must be named—and usually
is—in both the criminal charge and the jury instructions.
 UNITED STATES V. MARTINEZ-LOPEZ 49

I therefore concur in the majority’s decision as to the
divisibility of the controlled substance component. If, after
Vidana, California courts revise the treatment of multiple
charges and convictions based on one criminal activity
involving multiple types of controlled substances, we might
have to revisit this issue.

* * * * *

I respectfully dissent from the majority’s decision with
respect to Part II.B. and, to the extent it relies on the
conclusions of Part II.B, Part II.C.

I concur in Part II.A. of the decision.

BYBEE, Circuit Judge, concurring in part and dissenting in
part, but frustrated with the whole endeavor:

In Mathis, the Supreme Court promised that “[the]
threshold inquiry—elements or means?—is easy in this case,
as it will be in many others.” Mathis v. United States, 136 S.
Ct. 2243, 2256 (2016); see also Descamps v. United States,
133 S. Ct. 2276, 2285 n.2 (2013) (“[I]f the dissent’s real
point is that distinguishing between ‘alternative elements’
and ‘alternative means’ is difficult, we can see no real-world
reason to worry.”). Six years ago I wrote: “In the twenty
years since Taylor [v. United States, 495 U.S. 575 (1990)],
we have struggled to understand the contours of the Supreme
Court’s framework. Indeed, over the past decade, perhaps
no other area of the law has demanded more of our
resources.” United States v. Aguila-Montes de Oca,
655 F.3d 915, 917 (9th Cir. 2011) (en banc) (citing nine prior
en banc decisions of our court addressing the
50 UNITED STATES V. MARTINEZ-LOPEZ

categorical/modified categorical framework), overruled by
Descamps, 133 S. Ct. 2276.

The case before us is not easy, and does not bode well
for the Supreme Court’s conclusion that “indeterminacy
should prove more the exception than the rule.” Mathis,
136 S. Ct. at 2257. In my view, California Health and Safety
Code § 11352(a) functions as a new form of a “wobbler”
statute in regards to the actus reus: sometimes the acts listed
are treated as elements, as outlined in Judge Tallman’s
majority opinion, and other times they are treated as means,
as explained in Judge Berzon’s partial dissent. I cannot say
conclusively whether § 11352 identifies elements or
means—which is not surprising, since the “elements-means”
distinction is largely a recent creation by the Court. Having
failed to satisfy the “demand for certainty” required to
conclude that this statute identifies elements, Mathis, 136 S.
Ct. at 2257 (quoting Shepard v. United States, 544 U.S. 13,
21 (2005)), the sentence enhancement cannot stand.

I respectfully dissent from the actus reus portion of the
majority opinion.

REINHARDT, Circuit Judge, with whom Chief Judge
THOMAS joins, dissenting:

I join Judge Berzon’s opinion except as to Part IV.
Instead, I would certify to the California Supreme Court the
question of the divisibility of the controlled substance
provision of Section 11352(a) as well as the divisibility of
the actus reus provision of that same subsection. In other
words, not only would I ask whether the specific acts are
elements or means, but I would also ask whether the
prohibited controlled substances are elements or means.
 UNITED STATES V. MARTINEZ-LOPEZ 51

Where the divisibility of the two principal aspects of a
subsection of a statute are unclear – here, the proscribed acts
and the proscribed substances – it seems evident to me that
they should be certified together to the state supreme court
to clarify both issues. The divisibility of both acts and
substances is unclear in this case. Judge Berzon explains
convincingly why the acts provision is unclear but hesitates
with respect to the proscribed substances question. With
respect to the latter question, she notes that the California
Supreme Court’s recent decision in People v. Vidana,
377 P.3d 805 (Cal. 2016), may alter or overrule the multiple
convictions analysis advanced by the majority with respect
to In re Adams. That California’s law may have recently
been modified is sufficient in itself to prevent this court from
concluding that the statute is divisible with the “certainty”
demanded by Mathis. Mathis v. United States, 136 S. Ct.
2243, 2257 (2016) (citation omitted).

By certifying the controlled substances question now, we
could enable federal courts to properly determine the
applicability of California’s drug statutes in immigration and
sentencing guidelines cases. By failing to certify one of the
two questions, we may instead ensure, as Judge Berzon
suggests, that this court will soon again have to revisit the
issue, after the full effects of Vidana are examined by the
California courts. Rather than again undergo the torturous
process in which we are now engaged, and again risk
announcing by a 6–5 vote that California’s law provides a
clear answer to the divisibility question, we should now
certify to the California Supreme Court both questions:
whether controlled substances are elements or means in
Section 11352(a) along with the question whether actus rei
are elements or means, and thereby obtain an answer that
gives us the certainty required by Mathis.
52 UNITED STATES V. MARTINEZ-LOPEZ

Even without Vidana, the answer to the question whether
the controlled substances listed in Section 11352 are
elements or means is far from clear. California’s appellate
courts have not read In re Adams as deciding the issue in
favor of divisibility. Instead, the courts of appeal have
repeatedly upheld convictions where the identity of the
controlled substance supporting the conviction was incorrect
or unproven. See, e.g., People v. Nugent, 2010 WL 4967932,
at *3 (Cal. Ct. App. 2010) (upholding conviction where
“appellant had offered to sell either cocaine or heroin”);
People v. Bonham, 2006 WL 400366, at *9 (Cal. Ct. App.
2006) (upholding conviction where trial court wrote
“methamphetamine or amphetamine” into model jury
instructions as the controlled substance at issue); People v.
Orozco, 2003 WL 23100024, at *3 (Cal. Ct. App. 2003)
(upholding a conviction for heroin although the charge was
cocaine); People v. Pinal, 2002 WL 180271, at *1 (Cal. Ct.
App. 2002) (upholding conviction for possession of a
mixture of heroin and cocaine).

We could all assume, as the bare majority apparently
does, that the courts of appeal erred in these cases because
the California Supreme Court definitively held over forty
years ago that the controlled substances were elements rather
than means. However, such an assumption does not
demonstrate “the comity due state courts when faced with
state law questions.” Rather, the appropriate conclusion is
that, like Patterson in the context of the actus reus question,
In re Adams did not definitively answer the question of
element versus means with regard to the controlled
substances question. Given this uncertainty, the additional
uncertainty recently created by Vidana is dispositive. In the
interest of comity and judicial economy, I would certify both
questions regarding Section 11352(a) to the California
Supreme Court.
 UNITED STATES V. MARTINEZ-LOPEZ 53

I therefore dissent from the majority opinion in its
entirety.