United States District Court, D. Colorado
ORDER DENYING THE GOVERNMENT'S MOTION IN
Honorable Christine M. Arguello, United States District Judge
case is before the Court on the Government's Motion
asking for “A Ruling That the Defendant's 2006
Arizona Conviction Under A.R.S.13-3041 and 13-1308 Is a Prior
Conviction for a ‘Felony Drug Offense' for Purposes
of Title 21 U.S.C. § 841(b) and Title 21 U.S.C. §
851” (“Motion”). (Doc. # 1967). Defendant
Marco Castro-Cruz (“Defendant”) filed a Response
(Doc. # 2008) and the Government filed a Reply (Doc. # 2012).
After reviewing the pleadings and the applicable law, the
Court denies the Government's Motion.
is scheduled for sentencing in this case due to his entry of
a guilty plea on February 5, 2108. In 2006, Defendant was
convicted in the Superior Court of Arizona, Maricopa County
in case number CR 2000-041188 of a narcotic drug violation
(“Arizona conviction”). The Government argues
that Defendant's sentence should be enhanced pursuant to
21 U.S.C. § 841(b) because his Arizona conviction
constitutes a prior “felony drug offense.”
Defendant admits to incurring the Arizona conviction but
contests that it qualifies as a prior “felony drug
offense” for purposes of 21 U.S.C. § 841(b).
determine whether Defendant's Arizona conviction
qualifies as a predicate offense for purposes of a 21 U.S.C.
§ 841(b) sentence enhancement, the Court first analyzes
the Arizona conviction under a “categorical
approach.” Under limited circumstances, the Court can
utilize a “modified categorical approach”
analysis. United States v. Madkins, 866 F.3d 1136,
1144-45 (10th Cir. 2017).
categorical approach requires the Court to compare the scope
of the conduct covered by the elements of the state statute,
in this case A.R.S. § 13-3408, with 21 U.S.C. §
802(44)'s definition of a “prior state felony
conviction, ” to determine whether A.R.S. §
13-3408 criminalizes a broader range of conduct than that
conduct criminalized by 21 U.S.C. § 841(b). A state
statute criminalizes a broader range of conduct than the
federal statute if its elements are broader than the elements
of the federal statute, or if the state statute allows a
conviction on the proof of fewer elements than the elements
that the federal statute requires for conviction.
Descamps v. United States, 133 S.Ct. 2276, 2283
(2013). Thus, the Court compares the elements of the prior
state conviction with the elements of the federal predicate
offense to see if there is a match. Id. If the
elements of the state conviction are the same as or narrower
than the elements of the federal offense, then the state
crime is a categorical match and the conviction qualifies as
a sentence enhancer. See Taylor v. United States,
495 U.S. 575, 599 (1990).
the categorical approach, this Court concludes that
Defendant's Arizona conviction is not available to
enhance his sentence in this case because A.R.S. §
13-3408's “narcotic drug” element
criminalizes possession of Benzylfentanyl and Thenylfentanyl,
which are not on the Federal Controlled Substance Schedule.
As such, it criminalizes conduct more broadly than 21 U.S.C.
§ 841(b). See Vera-Valdevinos v. Lynch, 649
Fed.Appx. 597 (9th Cir. 2016) (not selected) (noting that
“[a]t oral argument, the government conceded that Ariz.
Rev. Stat. § 13-3408 is overbroad because Arizona
prohibits criminal possession of two substances,
Benzylfentanyl and Thenylfentanyl, which are not on the
Federal Controlled Substance Schedule.”); United
States v. Tavizon-Ruiz, 196 F.Supp.3d 1076, 1079
(N.D.Cal. 2016) (noting that “[t]he government …
agrees that convictions under A.R.S. Section 13-3408 no
longer qualify as aggravated felonies for purposes of the
immigration laws” based on the application of
MODIFIED CATEGORICAL APPROACH
Government asserts that the Court should analyze
Defendant's conviction using the “modified
categorical approach, ” that is, by reviewing the
documents in the Defendant's Arizona conviction file to
confirm that the conviction qualifies as a sentence
enhancement. The Court may utilize the modified categorical
approach if, under a categorical approach analysis, a
conviction is not available as an enhancer,
Descamps, 133 S.Ct. at 2285, and the state criminal
statute of the conviction is divisible, Madkins, 866
F.3d at 1145. The Court cannot utilize the modified
categorical approach if it concludes that the state criminal
statute is indivisible. United States v. McKibbon,
878 F.3d 967, 974 (10th Cir. 2017). In that instance, the
Court's determination under the categorical approach that
the state conviction is unavailable for enhancement of the
Defendant's sentence becomes final.
Government argues that the Court should find that
A.R.S.13-3408 is divisible. Such a determination would
require this Court to disregard the conclusion of the court
in Vera-Valdevinos, 649 Fed.Appx. at 597, that
A.R.S.13-3408 is indivisible.
criminal statute is divisible if it sets forth the elements
of different criminal offenses rather than simply different
means by which a person commits a single ...