and Submitted April 10, 2019 Pasadena, California
from the United States District Court No. 3:14-cr-01288-DMS-1
for the Southern District of California Dana M. Sabraw,
District Judge, Presiding.
Burstein (argued) and Jeremy Warren, Warren & Burstein,
San Diego, California, for Defendants-Appellants.
Earl Zipp (argued), Assistant United States Attorney; Helen
H. Hong, Chief, Appellate Section, Criminal Division; Adam L.
Braverman, United States Attorney; United States
Attorney's Office, San Diego, California; for
Before: Richard A. Paez and Richard R. Clifton, Circuit
Judges, and Gary S. Katzmann, [*] Judge.
panel vacated a life sentence, which the district court
imposed after concluding that the defendant had two prior
felony drug offenses under 21 U.S.C. § 841(b)(1)(A)
(2016); and remanded for re-sentencing.
defendant argued that the district court erroneously
concluded that his prior conviction for inmate drug
possession under California Penal Code § 4573.6 (2007)
qualified as a "felony drug offense" triggering a
mandatory term of life imprisonment under §
841(b)(1)(A). The panel held that § 4573.6 is overbroad
because it criminalizes controlled substances under
California law that are not regulated under federal law. In
light of the statute's plain text, state court decisions,
and the contrast to convictions under the California Health
and Safety Code, the panel held that § 4573.6 is not
divisible. The panel therefore concluded that a conviction
under § 4573.6 cannot be a categorical "felony drug
offense" triggering the mandatory life term under §
panel concluded that the district court should be permitted
to consider the defendant's submissions and impose a new
sentence, notwithstanding that the district court indicated
at the previous sentencing hearing that it would have imposed
a life sentence under the 18 U.S.C. § 3553 factors even
if the defendant was not subject to a statutorily mandated
life sentence. The panel wrote that the district court may
consider at re-sentencing what effect, if any, the recently
enacted First Step Act has on the defendant's sentence.
CLIFTON, Circuit Judge.
Alton Graves challenges the life sentence imposed by the
district court after it concluded he had two prior felony
drug offenses under 21 U.S.C. § 841(b)(1)(A), mandating
a sentence of life imprisonment. The district court concluded
that his two prior convictions, including for a violation of
California Penal Code § 4573.6, qualified as predicate
felony drug offenses. We conclude that Graves' section
4573.6 conviction does not qualify as a predicate offense and
therefore vacate his sentence and remand for
was charged with (1) conspiracy to distribute
methamphetamine, (2) conspiracy to distribute marijuana, and
(3) possession with intent to distribute methamphetamine.
Before trial, the government filed notice of its intent to
seek an enhanced penalty under 21 U.S.C. § 851.
Specifically, because Graves had two prior convictions for
felony drug offenses, he would face a mandatory term of life
imprisonment without release if he was convicted of the
instant alleged offenses. 21 U.S.C. § 841(b)(1)(A). One
prior conviction was for inmate drug possession, violating
California Penal Code § ...