Today’s post is just a short update on some past posts about the indivisibility of drug statutes. You may recall two past posts about two Ninth Circuit opinions, albeit unpublished, holding the Arizona drug statutes are overbroad and indivisible — and therefore can’t qualify as prior drug offenses under the categorical and modified categorical approaches — because (1) the Arizona controlled substance schedules include controlled substances that aren’t in the federal controlled substance schedules and (2) Arizona doesn’t require jury unanimity on the type of controlled substance. (See “A Glimmer of Hope (Maybe More than a Glimmer?) on the Indivisibility of Overbroad Drug Statutes” in the May 2016 link at the right and “A Glimmer of Hope Glimmers Again” in the October 2016 link.) There was also a post about the court having granted en banc review on the divisibility of the California drug statutes, which are also overbroad in most instances. (See “Exciting News About Divisibility Challenges to the California Drug Statutes!”)
On the California statutes, the issue was argued before the en banc court and the case is still pending, so keep your fingers crossed. But what triggers this post is what I’ve heard about success several attorneys have had in district court in Arizona. In at least three cases, attorneys have convinced district judges in Arizona to follow the unpublished Ninth Circuit decisions and rule prior drug convictions don’t qualify as drug priors under the guidelines. And in at least one of the cases, probation recommended the prior didn’t qualify.
In the event you want to cite them as examples, the judges, cases, and attorneys were:
- United States v. Sepulveda-Martinez, CR 16-01284-TUC-CKJ; Judge Jorgenson; Attorney Christopher Kilburn
- United States v. James Derek Juan, CR 16-1347; Judge Jorgenson also (I think); Attorney Kathleen Williamson
- [Case name not yet obtained]; Judge Soto; Attorney Roger Sigal
I’m sure these attorneys would be glad to provide more information, and I’m told that Roger has some helpful briefing which he’d hopefully be willing to share. He mentioned to me in an e-mail that he did find and cite three Arizona Court of Appeals cases holding the jury need not be unanimous on the type of drug.
So hope is more than glimmering in Arizona, and maybe it’ll start shining in California sometime soon.