FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10066
Plaintiff-Appellee,
D.C. No.
v. 2:12-cr-00289-
JCM-PAL-1
TYRONE DAVIS,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted December 6, 2021 *
San Francisco, California
Filed May 13, 2022
Before: Carlos F. Lucero, ** Sandra S. Ikuta, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge Lucero;
Concurrence by Judge VanDyke
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Carlos F. Lucero, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2 UNITED STATES V. DAVIS
SUMMARY ***
Criminal Law
The panel affirmed Tyrone Davis’ conviction for being
a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1), vacated his sentence, and remanded for
resentencing.
Following entry of Davis’ guilty plea and his two
sentencing proceedings, the Supreme Court clarified in
Rehaif v. United States, 139 S. Ct. 2191 (2019), that to be a
felon in possession of a firearm in violation of § 922(g)(1),
a defendant must know that they belonged to the relevant
category of persons barred from possessing a firearm.
Davis made two arguments in light of Rehaif:
• He argued that the government’s failure to list the
knowledge of status element in his indictment should
invalidate his conviction. The panel held that Davis,
who had been incarcerated for more than three years
for his prior felony convictions and pointed to
nothing in the record suggesting that he would have
entered a different plea but for the indictment’s
deficiency, failed to satisfy the third and fourth
prongs of plain error review.
• He argued that the district court’s failure to advise
him of the knowledge of status element during the
***
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. DAVIS 3
plea colloquy rendered his guilty plea
unconstitutionally involuntary and unknowing. The
panel concluded that there was no plain error
requiring reversal, where none of Davis’ confusion
was related to the elements of the § 922(g)(1) charge,
this court already determined in a prior memorandum
disposition that his plea was constitutionally valid
despite any confusion, and the record contains
indisputable evidence of prior felony convictions.
Davis also argued that the district court improperly
applied a sentence enhancement pursuant to U.S.S.G.
§ 2K2.1(a) on the ground that his prior Nevada conviction
under N.R.S. § 453.337 for possession with intent to sell
marijuana constituted a conviction for a “controlled
substance offense” under U.S.S.G. § 4B1.2(b). Following
briefing, the parties notified the court that under United
States v. Bautista, 989 F.3d 698 (9th Cir. 2021) (holding that
a conviction for attempted transportation of marijuana under
Arizona law was facially overbroad and not a categorical
match for a “controlled substance offense”), Davis’
predicate conviction is not sufficient to trigger the
enhancement. The panel deferred to the government’s
concession, declining to decide whether Bautista controls.
Judge VanDyke, joined by Judge Ikuta, concurred. He
joined the majority opinion in full because the government
conceded that Bautista controls and Davis should be
resentenced without his 2011 marijuana conviction
constituting a controlled substance offense. He wrote
separately to explain why that concession was unnecessary,
why Bautista does not control this case, and why this court
should be careful not to rely on Bautista in a way that renders
impotent the realistic probability test outlined by the
4 UNITED STATES V. DAVIS
Supreme Court, thus unnecessarily piling more problems on
top of the already problematic categorical approach.
COUNSEL
Michael Tanaka, Los Angeles, California, for Defendant-
Appellant.
Christopher Chiou, Acting United States Attorney; Elizabeth
O. White, Appellate Chief; Adam Flake, Assistant United
States Attorney; United States Attorney’s Office, Los
Angeles, California; for Plaintiff-Appellee.
OPINION
LUCERO, Circuit Judge:
Tyrone Davis appeals his conviction and sentence for
being a felon in possession of a firearm. He contends that
the government and district court’s failure to advise him of
an essential element of that offense should invalidate his
conviction and guilty plea. Davis further argues, and the
government concedes, that the district court improperly
applied a sentence enhancement based on a prior drug-
related offense. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm Davis’ conviction, vacate his sentence,
and remand for resentencing.
I
On July 19, 2012, detectives from the Las Vegas
Metropolitan Police Department searched Davis’ apartment
in connection with an ongoing robbery investigation.
Detectives discovered a .22 caliber automatic pistol,
UNITED STATES V. DAVIS 5
89 rounds of ammunition, and approximately ten grams of
cocaine. Although he was never prosecuted for the robbery,
Davis was arrested and charged with possession of a firearm
by a convicted felon in violation of 18 U.S.C. § 922(g)(1),
possession of cocaine with intent to distribute in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(C), and possession of a
firearm in furtherance of a drug trafficking offense in
violation of 18 U.S.C. § 924(c)(1)(a)(i).
After rejecting several offers from the government,
Davis ultimately entered a guilty plea on all charges the
morning his trial was set to begin. During his change of plea
hearing, Davis repeatedly evinced confusion about the
charges against him and the consequences of pleading guilty,
including possible sentences. Following an extensive
colloquy and consultation between Davis and his attorney,
the district court accepted the guilty plea as knowing and
voluntary. Two weeks later, however, Davis moved pro se
to dismiss his attorney and withdraw his plea. The court
appointed new counsel, who filed a second motion to
withdraw the guilty plea. Both motions to withdraw the plea
were denied, and the district court imposed a 260-month
term of incarceration.
Davis then filed his first appeal, raising several
challenges to his conviction and sentence. This court
affirmed his conviction, specifically finding that his guilty
plea was knowing and voluntary because any confusion
Davis expressed during his change of plea hearing was
resolved through consultation with his attorney and the
sentencing judge. United States v. Davis, 744 F. App’x 490,
491 (9th Cir. 2018). However, we vacated and remanded his
sentence because the district court improperly sentenced
Davis as a career offender on the mistaken theory that Davis’
prior conviction for robbery constituted a “crime of
6 UNITED STATES V. DAVIS
violence” for purposes of the United States Sentencing
Guidelines (“U.S.S.G.”). Id. at 492; see also U.S.S.G.
§ 4B1.2. On remand, the district court sentenced Davis to
165 months in prison.
This appeal followed. Initially, Davis filed a pro se brief
arguing that his convictions violated the Double Jeopardy
Clause. See U.S. CONST. amend. V. We rejected that
contention but identified a separate arguable issue for
appellate review: whether the district court erroneously
concluded that Davis’ prior drug-related conviction under
Nevada law qualified as a “controlled substance offense,”
which triggers a sentence enhancement under federal
guidelines. See U.S.S.G. §§ 2K2.1(a)(4)(A), 4B1.2(b). 1 We
appointed new counsel and directed the parties to address
this sentencing issue.
Following that order, the Supreme Court held in Rehaif
v. United States, 139 S. Ct. 2191 (2019), that in order to
commit the offense of being a felon in possession of a
firearm, a defendant must know both that they “possessed a
firearm” and that they “belonged to the relevant category of
persons barred from possessing a firearm.” Id. at 2200. In
addition to briefing the sentencing issue raised by this court,
Davis challenged his conviction on the basis that neither the
government nor the district court advised him of the
knowledge of status element articulated in Rehaif. These are
the issues we consider today.
After the completion of briefing and shortly before
argument was scheduled to take place, the parties agreed that
1
On June 6, 2011, Davis was convicted for a felony violation of
N.R.S. § 453.337, which prohibits the possession with intent to sell
certain controlled substances.
UNITED STATES V. DAVIS 7
an intervening decision of this court requires vacatur and
remand of Davis’ sentence. See United States v. Bautista,
989 F.3d 698 (9th Cir. 2021). We ordered supplemental
briefing in light of this agreement, directing the parties to
address Bautista’s applicability to this case.
II
We begin by addressing Davis’ conviction. Following
entry of his guilty plea and both sentencing proceedings, the
Supreme Court clarified in Rehaif that to be a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1),
a defendant must know that they “belonged to the relevant
category of persons barred from possessing a firearm.”
Rehaif, 139 S. Ct. at 2200. Davis argues that: (1) the
government’s failure to list this knowledge of status element
in his indictment should invalidate his conviction; and
(2) the district court’s failure to advise him of this element
during the plea colloquy rendered his guilty plea
unconstitutionally involuntary and unknowing. However,
for the reasons outlined below, our precedents foreclose both
arguments.
A
Beginning with the indictment, it is axiomatic that “an
indictment or information which does not set forth each and
every element of the offense fails to allege an offense against
the United States.” United States v. Morrison, 536 F.2d 286,
287 (9th Cir. 1976). This principle applies to implied,
necessary elements not included on the face of a statute.
United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999).
On this basis, Davis initially argued that his indictment’s
failure to enumerate the knowledge of status element
deprived the district court of jurisdiction over his § 922(g)(1)
charge.
8 UNITED STATES V. DAVIS
In his reply brief, however, Davis concedes that pursuant
to intervening caselaw, his post-trial challenge to the
indictment’s omission of the Rehaif element is not a
jurisdictional issue, but rather subject to plain error review.
See United States v. Qazi, 975 F.3d 989, 992 (9th Cir. 2020).
“On plain error review, reversal is warranted only if (1) there
was error; (2) it was plain; (3) it affected the defendant’s
substantial rights; and (4) viewed in the context of the entire
trial, the impropriety seriously affected the fairness,
integrity, or public reputation of judicial proceedings.”
United States v. Tuan Ngoc Luong, 965 F.3d 973, 987 (9th
Cir. 2020) (internal citation and quotation omitted). To
show that a plain error implicates substantial rights after
pleading guilty, a “defendant must show a reasonable
probability that, but for the error, he would not have entered
the plea.” United States v. Bain, 925 F.3d 1172, 1178 (9th
Cir. 2019) (internal citation and quotation omitted).
Defendants carry the burden of establishing plain error.
United States v. Dominguez-Benitez, 542 U.S. 74, 82 (2004).
This court has held that an indictment’s failure to allege
the Rehaif knowledge of status element satisfies the first two
prongs of our plain error inquiry. United States v. Benamor,
937 F.3d 1182, 1188 (9th Cir. 2019). However, Davis fails
to satisfy the third and fourth prongs. He points to nothing
in the record suggesting that he would have entered a
different plea but for the indictment’s deficiency. See Bain,
925 F.3d at 1178. Because Davis had been incarcerated for
more than three years for his prior felony convictions, it
defies common sense to suggest that he was unaware of his
felon status at the time he possessed the firearm at issue. See
Greer v. United States, 141 S. Ct. 2090, 2097 (2021) (“In a
felon-in-possession case where the defendant was in fact a
felon when he possessed firearms, the defendant faces an
uphill climb in trying to satisfy the substantial-rights prong
UNITED STATES V. DAVIS 9
of the plain-error test based on an argument that he did not
know he was a felon. The reason is simple: If a person is a
felon, he ordinarily knows he is a felon.”). Therefore, Davis
has not established that his indictment’s failure to list the
knowledge of status element is plain error requiring reversal.
B
We turn next to the plea colloquy. The U.S. Constitution
requires that a guilty plea be entered voluntarily and
intelligently. Bousley v. United States, 523 U.S. 614, 618
(1998). This standard requires that a defendant understands
the essential elements of each charge prior to entering a
guilty plea. Id. at 618–19. Davis contends that because the
district court failed to advise him of the knowledge of status
element during his change of plea hearing, his guilty plea
was not entered intelligently and was thus unconstitutional.
Although the parties initially disputed the applicable
standard of review, the Supreme Court has since clarified
that omission of a Rehaif element during a plea colloquy is
reviewed for plain error. Greer, 141 S. Ct. at 2100. Thus,
we apply the same plain error framework described above.
Again, the district court’s failure to include the
knowledge of status element in its plea colloquy satisfies the
first two prongs of our plain error inquiry. Benamor,
937 F.3d at 1188. And again, Davis fails to show that this
error implicates substantial rights. See Bain, 925 F.3d
at 1178. He points to evidence in the record that he evinced
confusion and equivocation about pleading guilty before,
during, and after his plea colloquy. However, none of Davis’
confusion was related to elements of the § 922(g)(1) charge,
and this court has already determined that his plea was
constitutionally valid despite any confusion. See Davis,
744 F. App’x at 491. Moreover, when the record contains
indisputable evidence of prior felony convictions, as is true
10 UNITED STATES V. DAVIS
in this case, a trial court’s omission of the knowledge of
status element during the plea colloquy generally does not
implicate substantial rights. Benamor, 937 F.3d at 1189;
Greer, 141 S. Ct. at 2097. We therefore conclude that the
district court’s failure to recount the knowledge of status
element during the plea colloquy was not plain error
requiring reversal.
***
Because the Rehaif omissions in both Davis’ indictment
and plea colloquy do not satisfy plain error review, we affirm
his conviction for being a felon in possession of a firearm in
violation of § 922(g)(1).
III
Finally, we address Davis’ 165-month sentence. Federal
sentencing guidelines call for a six-point sentence
enhancement for defendants that have a previous conviction
for a “controlled substance offense.” See U.S.S.G.
§§ 2K2.1(a), 4B1.2(b). The district court concluded that
Davis’ 2011 conviction for possession with intent to sell
marijuana in violation of N.R.S. § 453.337 constitutes a
“controlled substance offense” and thus applied the
enhancement. Ordinarily, to qualify for this enhancement, a
state law may only proscribe possession of drugs that are
included in the federal Controlled Substances Act (“CSA”).
United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir.
2012).
The parties initially disputed whether N.R.S. § 453.337
is broader than corresponding federal law, and thus whether
the district court properly applied the “controlled substance
offense” enhancement. However, following briefing, the
parties notified the court that under our recent decision in
UNITED STATES V. DAVIS 11
Bautista, they agree that Davis’ predicate conviction is not
sufficient to trigger the sentence enhancement. In Bautista,
this court found that “[b]ecause the federal CSA excludes
hemp but Section 13-3405 of the Arizona Revised Statutes
did not,” a defendant’s conviction for attempted
transportation of marijuana under Arizona law was “facially
overbroad and not a categorical match for a ‘controlled
substance offense,’ and the district court erred in applying
the recidivist sentencing enhancement for a controlled
substance.” Bautista, 989 F.3d at 705. Specifically, the
relevant Arizona law defined “‘marijuana’ as ‘all parts of
any plant of the genus cannabis, . . . whether growing or not,
and the seeds of such plant.’” Id. (quoting Ariz. Rev. Stat.
§ 13-3401(19)). As a result, the panel concluded that the
Arizona law was broader than the federal offense. Id. The
parties agree that this logic applies to the Nevada law at issue
in this case.
We need not decide whether Bautista controls. Rather,
we defer to the government’s concession on the sentencing
issue. Specifically, the government has twice declined to
defend imposition of the “controlled substance offense”
enhancement. Under such circumstances, we decline to
decide a question of law that is not presented by the parties,
particularly when the government has made a concession in
a criminal case. Greenlaw v. United States, 554 U.S. 237,
243 (2008) (“[W]e rely on the parties to frame the issues for
decision and assign to courts the role of neutral arbiter of
matters the parties present.”); see also United States v.
LaBonte, 520 U.S. 751, 761–62 (1997) (comparing
prosecutorial discretion to seek an enhanced sentence with
their absolute discretion over charging decisions, noting that
“[s]uch discretion is an integral feature of the criminal
justice system”); United States v. Banuelos-Rodriguez,
215 F.3d 969, 975–77 (9th Cir. 2000) (en banc)
12 UNITED STATES V. DAVIS
(acknowledging the role of prosecutorial discretion in
sentencing). Accordingly, based on the government’s
concession, we vacate Davis’ sentence and remand for
resentencing without the “controlled substance offense”
enhancement.
IV
For the foregoing reasons, we AFFIRM Davis’
conviction, VACATE his sentence, and REMAND for
resentencing. The government’s motion to supplement the
record is DENIED as moot.
VANDYKE, Circuit Judge, with whom Judge IKUTA joins,
concurring:
I join the majority opinion in full because the
government conceded that Bautista controls and Davis
should be resentenced without his 2011 marijuana
conviction constituting a controlled substance offense. I
write separately, however, to explain why that concession
was unnecessary, why Bautista does not control this case,
and why we should be careful not to rely on Bautista in a
way that renders impotent the realistic probability test
outlined by the Supreme Court, see Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007), thus unnecessarily piling
more problems on top of the already problematic categorical
approach.
I. Bautista’s Analysis of an Arizona Statute Does Not
Control the Nevada Statute at Issue Here.
In Bautista, a panel of this court held that an Arizona
state law conviction for the attempted transportation of
UNITED STATES V. DAVIS 13
marijuana was not a controlled substance offense because it
determined that Arizona’s definition of “marijuana” was
broader than the federal definition (which, at the time of the
defendant’s federal sentencing, excluded hemp). 1 United
States v. Bautista, 989 F.3d 698, 705 (9th Cir. 2021).
Bautista’s categorical analysis does not control in this case
for several reasons. 2
First, Arizona’s statute encompassed a wider range of
cannabis in its definition of marijuana than Nevada’s statute.
The Arizona definition included nearly every part of the
cannabis plant, excluding only its sterilized seed and mature
stalk. A.R.S. § 13-3401(19). By contrast, the marijuana
definition referenced by N.R.S. § 453.337 is explicitly
limited to “hallucinogenic substances,” and explicitly
excludes “industrial hemp”—i.e., certain cannabis with a
THC-concentration of not more than 0.3 percent. N.A.C.
§ 453.510(4); N.R.S. §§ 453.096, 557.040. 3
1
The Agriculture Improvement Act, Pub. L. 115-334, § 12619, 132
Stat. 4490, 5018 (2018) (excluding, as of December 20, 2018, “hemp”
from the definition of marihuana in the Controlled Substances Act,
21 U.S.C. § 801, et seq.); 7 U.S.C. § 1639o(1) (defining hemp as “the
plant cannabis sativa L. and any part of that plant . . . with a delta-9
tetrahydrocannabinol [THC] concentration of not more than 0.3 percent
on a dry weight basis”) (emphasis added).
2
Bautista also determined that courts “must compare [a
defendant]’s prior state-law conviction with federal law at the time of his
federal sentencing . . .” Bautista, 989 F.3d at 704. That conclusion does
control in this case, which is why the majority opinion and this
concurrence focus on the federal and Nevada definitions of marijuana as
they existed in 2019, when Davis was federally sentenced.
3
As the defendant pointed out in Bautista, Arizona also had history
of prosecuting hemp possession under other statutes and had
14 UNITED STATES V. DAVIS
Second, Bautista’s applicability to other statutes is also
limited because it did not address the Supreme Court’s
realistic probability test, leaving that issue open for future
panels to consider in the appropriate context. Bautista seems
to have assumed, by relying on the Arizona statute’s silence
as to hemp and not its explicit text, that the Arizona statute
was broader than its federal counterpart. Right or wrong,
Bautista is obviously precedent as to the specific Arizona
statute considered in that case. But I do not think Bautista
must be read so broadly as to imply that the federal hemp-
exclusion automatically renders all state convictions
involving marijuana overbroad and therefore a categorical
mismatch to the federal generic controlled substance offense
unless the state definition happens to align precisely with the
new federal definition. As discussed more below, such a
reading of Bautista would eviscerate the Supreme Court’s
realistic probability test. Here, for example, even though the
relevant state and federal definitions of marijuana were not
mirror images of each other, there was no meaningful
difference between them at the time of Davis’s federal
sentencing. If anything, Nevada’s definition of marijuana
(explicitly limited to “hallucinogenic substances”) appears
to be narrower than the federal definition (explicitly limited
to THC concentrations that exceed 0.3 percent). 4
All of this is to say that in a future case involving a
different statute than the Arizona offense considered in
Bautista, where the issue is raised by a party and properly
criminalized unlicensed hemp transportation as drug trafficking.
Bautista Reply Br., 2020 WL 2501311, at 11–13. Here, the court is
unaware of (and the parties have not provided) any instance in which
Nevada prosecuted hemp-related conduct in the relevant time frame.
4
Compare N.A.C. § 453.510(4) with 7 U.S.C. § 1639o(1).
UNITED STATES V. DAVIS 15
contested by the government, we may not merely assume a
categorical mismatch simply because a state crime does not
explicitly exclude hemp from its definition of marijuana,
while the federal definition does. Instead, we should follow
the Supreme Court’s instruction to apply the “realistic
probability” test to any argument that a state conviction
involving marijuana is not a federal controlled substance
offense. See Duenas-Alvarez, 549 U.S. at 193; Moncrieffe
v. Holder, 569 U.S. 184, 191 (2013).
II. N.R.S. § 453.337 is a Controlled Substance Offense.
If the government had not conceded the issue, I would
conclude that Davis’s sentence was properly enhanced under
U.S.S.G. § 2K2.1(a)(4)(A) as a controlled substance offense
(defined by U.S.S.G. § 4B1.2(b)), because there is no
realistic probability that the Nevada statute Davis was
convicted under would ever be applied against hemp.
To prevail under the categorical approach and show that
his sentence was wrongly enhanced, Davis must
demonstrate that N.R.S. § 453.337 is broader than its federal
counterpart and therefore not a controlled substance offense.
Under the categorical approach, we must determine:
(1) whether the Nevada statute encompasses more conduct
(or substances) than its federal counterpart (i.e., nongeneric
conduct); and (2) even if it arguably encompasses
nongeneric conduct, whether there is genuinely a “realistic
probability” that Nevada would prosecute such conduct. See
Cortes-Maldonado v. Barr, 978 F.3d 643, 648 (9th Cir.
2020) (citations omitted). 5 Importantly, the Supreme Court
5
Here, the nongeneric conduct that Davis claims the Nevada statute
encompasses is possession of hemp (i.e., marijuana with a THC-
concentration below 0.3 percent).
16 UNITED STATES V. DAVIS
has made clear that judges should not rely on mere
hypotheticals or speculation when evaluating whether there
is a “realistic probability” that the state statute would
actually be applied to the nongeneric conduct. Duenas-
Alvarez, 549 U.S. at 193 (holding that “to find that a state
statute creates a crime outside the generic definition of a
listed crime in a federal statute requires . . . a realistic
probability, not a theoretical possibility, that the State would
apply its statute to conduct that falls outside the generic
definition of a crime”); Moncrieffe, 569 U.S. at 191
(explaining that “our focus on the minimum conduct
criminalized by the state statute is not an invitation to apply
‘legal imagination’ to the state offense . . . .”) (quoting
Duenas-Alvarez, 549 U.S. at 193).
Our circuit has held that the realistic probability test can
be satisfied in one of two ways: (1) with a prior instance of
prosecution for the alleged conduct; or (2) by showing that
the state statute is “explicitly” or “evident[ly]” broader than
its federal counterpart. Chavez-Solis v. Lynch, 803 F.3d
1004, 1009–10 (9th Cir. 2015) (explaining that when a “state
statute explicitly defines a crime more broadly than the
generic definition, no ‘legal imagination’ is required to hold
that a realistic probability exists that the state will apply its
statute to conduct that falls outside the generic definition of
the crime”) (quoting United States v. Grisel, 488 F.3d 844,
850 (9th Cir. 2007) (en banc), abrogated on other grounds
by United States v. Stitt, 139 S. Ct. 399 (2018)); United
States v. Vidal, 504 F.3d 1072, 1082 (9th Cir. 2007) (en
banc) (“[W]hen ‘[t]he state statute’s greater breadth is
evident from its text,’ a defendant may rely on the statutory
language to establish the statute as overly inclusive.”)
(quoting Grisel, 488 F.3d at 850).
UNITED STATES V. DAVIS 17
Even though Davis was given an opportunity in
supplemental briefing, he was unable to provide a single
instance of prosecution for the nongeneric conduct that he
claims the Nevada statute encompasses. Accordingly, Davis
is left with needing to show that Nevada’s statutory text is
explicitly or evidently broader than its federal counterpart.
Grisel, 488 F.3d at 850; Vidal, 504 F.3d at 1082. In other
words, the textual mismatch cannot be lurking in the
shadows or indeterminacies of a given statute—it must be
plainly obvious from an ordinary reading of the text.
It is of course possible, as Davis points out, that a state
statute could create a realistic probability of prosecution for
hemp possession even if there is no instance of actual
prosecution. For example, if Nevada had explicitly defined
marijuana to include all kinds of hemp or substances with
THC-concentrations below 0.3 percent, there would be a
realistic probability of prosecution for possessing those
substances—even without an example of prior prosecution.
But this case is different from those where the text itself
reveals a categorical mismatch, because here any theoretical
mismatch arguably lies in what the Nevada statute does not
say or what it implies by its silence as to certain low-THC
substances. Compare, e.g., Grisel, 488 F.3d at 850 (finding
a categorical mismatch because Oregon’s burglary statute
was broader than the federal crime because it explicitly
included entrance into places like booths, vehicles, boats,
and aircrafts that were explicitly excluded from the federal
definition); Vidal, 504 F.3d at 1082 (finding a categorical
mismatch because the state statute explicitly extended to an
“accessory” of vehicle-theft and the federal counterpart
explicitly eliminated accessories before the fact).
Essentially, Davis is asking that we imply the
criminalization of certain substances based on the Nevada
18 UNITED STATES V. DAVIS
statute’s silence—an argument we have rejected in other
cases. Where a federal statute explicitly excluded certain
conduct or substances from its reach, we have held that a
state statute’s mere silence as to a parallel exception is not
enough to demonstrate an explicit textual mismatch. United
States v. Burgos-Ortega, 777 F.3d 1047, 1054–55 (9th Cir.
2015) (“These cases [Grisel and Vidal] are distinguishable
because the state statute here does not expressly include
conduct not covered by the generic offense, but rather is
silent as to the existence of a parallel administering
exception.”) (emphasis added); United States v. Vega-Ortiz,
822 F.3d 1031, 1036 (9th Cir. 2016) (finding state statute
“not ‘overbroad on its face’” because it lacked a parallel
exception for “L-meth” that was present in the federal
definition).
The rationale from Burgos-Ortega and Vega-Ortiz
applies with full force here. Nevada’s 2019 definition of
marijuana explicitly excluded industrial hemp (cannabis
with a THC-concentration of 0.3 percent or less) grown in
accordance with chapter 557. N.R.S. §§ 453.096, 557.040.
But at most, the statute was silent as to whether hemp not
“grown or cultivated pursuant to the provisions of chapter
557” constituted marijuana. N.A.C. § 453.510(4). 6 A
categorical mismatch does not automatically result just
because arguably a state statute impliedly covers more
conduct or controlled substances than its federal counterpart.
See Burgos-Ortega, 777 F.3d at 1054–55; Vega-Ortiz,
822 F.3d at 1036. Instead, this is where the realistic
probability test takes center stage and requires an example
6
Nevada’s statute is not actually silent, however. The schedule’s
explicit limitation to “hallucinogenic substances” seems to indicate that
all low-THC substances would not constitute marijuana. N.R.S.
§ 453.096.
UNITED STATES V. DAVIS 19
of prior prosecution since the text is not explicitly or
evidently overbroad. 7 Just like the defendant in Burgos-
Ortega, Davis argues that prosecution under the statute for
hemp possession is theoretically possible, but he is unable to
show how that theoretical overbreadth is supported by the
explicit text of the state statute. See Burgos-Ortega,
777 F.3d at 1054–55.
Legal imagination alone cannot create a realistic
probability of prosecution, which is all Davis has offered to
support his argument that the Nevada statute could
technically cover some hemp possession. Take for example
a hypothetical state statute that criminalized carjacking but
had never been applied against someone who stole a 1972
Pinto with tinted windows and a towing hitch. It takes no
legal imagination to see that an individual would still face a
realistic probability of prosecution for stealing a 1972 Pinto
under the explicit text of the carjacking statute. On the other
hand, it does require a robust legal imagination to conclude
that the statute could technically cover stealing a toy
matchbox or radio-controlled car, because some overeager
prosecutor might argue they qualify as “cars” under the
statute. The statutory text cannot be read in a vacuum
detached from reality—and that is precisely what would be
7
See id.; see also United States v. House, — F.4th —, 2022 WL
1123809, at *12 (9th Cir. 2022) (Christen, J., concurring) (“This is why,
even when a state statute sweeps in more conduct or controlled
substances, the complete [categorical] analysis includes the reality check
the Supreme Court introduced in Duenas-Alvarez to determine whether
there is a realistic probability a state would prosecute the possession or
distribution of a particular controlled substance. This step can be
particularly illuminating in cases involving impliedly overbroad
statutes.”).
20 UNITED STATES V. DAVIS
required to find a realistic probability of a carjacking
prosecution for snatching someone’s matchbox car.
Similarly here, Davis’s attorney argues (with no example
of prior prosecution) that the Nevada statute could be read to
encompass the possession of certain low-THC substances
like hemp. But just as with the toy car example, such a
reading would require us to accept the very “legal
imagination” the Supreme Court has warned us not to rely
on in determining whether a realistic probability of
prosecution for the nongeneric conduct has been established.
Duenas-Alvarez, 549 U.S. at 193; Moncrieffe, 569 U.S. at
191. Imaginative arguments about what nongeneric conduct
could technically be prosecuted under a state statute are not
enough to defeat the categorical comparison. See, e.g.,
Burgos-Ortega, 777 F.3d at 1054–55; Vega-Ortiz, 822 F.3d
at 1036.