NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 12 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10503
Plaintiff-Appellee, D.C. No.
3:16-CR-003-MMD-WGC
v.
RICHARD E. TURNER, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Argued and Submitted November 16, 2017
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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Before: GOULD, MURGUIA, Circuit Judges, and FREUDENTHAL,** Chief
District Judge
Defendant Richard Turner appeals from the district court’s judgment and
challenges the 46-month sentence imposed following his guilty plea conviction for
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and §
924(a)(2). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.
On appeal, Turner first argues the district court improperly based his sentence
on the need for education and treatment in violation of Tapia v. United States, 564
U.S. 319 (2011). Turner failed to raise this claim with the district court. We review
for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th
Cir. 2010), and conclude there is none. The district court recognized Turner’s need
for educational training and treatment as a component of the sentencing factors in
18 U.S.C. § 3553(a)(2)(D). However, the record does not support Turner’s claim
that the district court imposed or lengthened Turner’s sentence to promote education
or treatment. See, Tapia, 564 U.S. at 330.
Turner also challenges the district court’s finding that Nevada Revised Statute
(“NRS”) § 453.321 is categorically a controlled substance offense. Turner failed to
raise all of his current arguments before the district court, so we review for plain
error. Valencia-Barragan, 608 F.3d at 1108. The district court plainly erred by
**
The Honorable Nancy D. Freudenthal, Chief United States District
Judge for the District of Wyoming, sitting by designation.
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finding NRS § 453.321 is categorically a “controlled substance offense” under the
sentencing guidelines. Nevada Revised Statute § 453.321 covers substances not
contained in the federal Controlled Substances Act. “[I]t is undisputed that Nevada
law lists at least some substances that are not on the federal list, compare 21 U.S.C.
§ 802 with Nev. Admin. Code §§ 453.510–453.550 (listing Datura, hydrogen iodide
gas, human growth hormone, and Carisoprodol, as controlled substances).”
Madrigal-Barcenas v. Lynch, 797 F.3d 643, 645 (9th Cir. 2015) (discussing
Nevada’s possession of paraphernalia statute, which contains the same drug
schedules as NRS § 453.321). For these reasons, NRS § 453.321 is overbroad and
is not categorically a controlled substance offense. We remand this matter back to
the district court to determine in the first instance whether NRS § 453.321 is
divisible and, if necessary, to apply the modified categorical approach.
Having held there was a procedural error, we do not reach Turner’s claim that
his sentence was substantively unreasonable. United States v. Carty, 520 F.3d 984,
993 (9th Cir. 2008) (“On appeal, we first consider whether the district court
committed significant procedural error, then we consider the substantive
reasonableness of the sentence.”) (citation omitted).
VACATED AND REMANDED.
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