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United States v. Figueroa-Beltran

United States Court of Appeals, Ninth Circuit

June 6, 2018

United States of America, Plaintiff-Appellee,
v.
Gibran Richardo Figueroa-Beltran, Defendant-Appellant.

          D.C. No. 2:15-cr-00176-KJD-GWF-1

          Before: Diarmuid F. O'Scannlain and Johnnie B. Rawlinson, Circuit Judges, and Sarah S. Vance, [*] District Judge.

         ORDER CERTIFYING QUESTIONS TO THE NEVADA SUPREME COURT

         SUMMARY [**]

         Criminal Law / Certification of Questions to Nevada Supreme Court

         In an appeal from a criminal sentence, the panel certified the following questions to the Nevada Supreme Court:

1.Is Nev. Rev. Stat. § 453.337 divisible as to the controlled substance requirement?
2.Does the decision in Luqman conclude that the existence of a controlled substance is a "fact" rather than an "element" of § 453.337, rendering the statute indivisible? If so, can this conclusion be reconciled with Muller?
3.Does the decision in Muller conclude that offenses under § 453.337 comprise "distinct offenses requiring separate and different proof, " rendering the statute divisible as to the controlled substance requirement? If so, can this be reconciled with Luqman?

          ORDER

          Johnnie B. Rawlinson United States Circuit Judge, presiding.

         The issue for decision in this case is whether Nevada Revised Statute § 453.337, which criminalizes conduct related to certain controlled substances identified by reference to the Nevada Administrative Code, is divisible under federal law for the purpose of applying the federal sentencing guidelines.[1] This question of law is determinative of the matter pending before this court and we are not aware of any clearly controlling precedent in the existing decisions of the Nevada Supreme Court. Accordingly, pursuant to Rule 5 of the Nevada Rules of Appellate Procedure, [2] we respectfully request that the Nevada Supreme Court determine whether, under Nevada law, § 453.337 is divisible.

         I. Factual and Procedural Background

         In 2012, Gibran Figueroa-Beltran (Figueroa), a native of Mexico, was found in possession of one gram of cocaine and 5.8 grams of heroin during a traffic stop. He was convicted in the Eighth Judicial District Court of possession of a controlled substance with intent to sell in violation of § 453.337 and sentenced to 19 to 48 months' imprisonment. He was paroled approximately one year later, but subsequently arrested for selling a controlled substance, and removed to Mexico.

         Within two years of his removal, Figueroa illegally reentered the United States, where he was once again arrested for selling a controlled substance. While those charges were pending, Figueroa was charged with 26 other counts of drug-related offenses, including receiving stolen property, receiving a stolen vehicle, being a prohibited person in possession of firearms, operating a place for the sale of controlled substances, possessing for sale Schedule I/II controlled substances, trafficking Schedule I controlled substances (28 grams), conspiring to violate the federal Controlled Substances Act, and selling Schedule I or II controlled substances.

         A federal grand jury later indicted Figueroa for being a deported alien found unlawfully in the United States, in violation of 8 U.S.C. § 1326.[3] Figueroa pled guilty without a plea agreement and the district court imposed a low-end Guideline sentence of 41 months' imprisonment followed by a three-year term of supervised release. In calculating the 41-month sentence, the district court began with a base offense level of 8 and added a 16-level enhancement under United States Sentencing Guidelines (U.S.S.G.) § 2L1.2 due to Figueroa's 2012 conviction for possession of a controlled substance for sale. Figueroa objected to the enhancement, noting that his conviction for a violation of § 453.337 did not qualify as a drug trafficking offense.

         Figueroa filed a timely appeal challenging the district court's application of the 16-level enhancement provided for in U.S.S.G. § 2L1.2.[4]

         (b) Specific Offense Characteristic

         (1) Apply the Greatest:

If the defendant previously was deported, or unlawfully remained in the United States, after-
(A)a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense, increase by 16 levels if the conviction receives criminal history points under Chapter Four or by 12 levels if the conviction does not receive criminal history points;
(B)a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less, increase by 12 levels if the conviction receives criminal history points under Chapter Four or by 8 levels if the ...

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