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United States v. Graves

United States Court of Appeals, Ninth Circuit

May 30, 2019

United States of America, Plaintiff-Appellee,
v.
Randy Alton Graves, AKA Sweets, Defendant-Appellant.

          Argued and Submitted April 10, 2019 Pasadena, California

          Appeal 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.

          Devin Burstein (argued) and Jeremy Warren, Warren & Burstein, San Diego, California, for Defendants-Appellants.

          Daniel 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 Plaintiff-Appellee.

          Before: Richard A. Paez and Richard R. Clifton, Circuit Judges, and Gary S. Katzmann, [*] Judge.

         SUMMARY [**]

         Criminal Law

         The 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.

         The 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 § 841(b)(1)(A).

         The 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.

          OPINION

          CLIFTON, Circuit Judge.

         Randy 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 re-sentencing.[1]

         I. Background

         Graves 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 § ...


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