Before: Diarmuid F. O'Scannlain and Johnnie B. Rawlinson,
Circuit Judges, and Sarah S. Vance, [*] District Judge.
CERTIFYING QUESTIONS TO THE NEVADA SUPREME COURT
Law / Certification of Questions to Nevada Supreme Court
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?
Johnnie B. Rawlinson United States Circuit Judge, presiding.
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. 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,  we respectfully
request that the Nevada Supreme Court determine whether,
under Nevada law, § 453.337 is divisible.
Factual and Procedural Background
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
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
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. 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.
filed a timely appeal challenging the district court's
application of the 16-level enhancement provided for in
U.S.S.G. § 2L1.2.
Specific Offense Characteristic
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 ...