United States District Court, D. Colorado
ORDER DENYING GOVERNMENT'S MOTION TO
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
case is before the Court on the Government's
“Motion for Reconsideration of Order (Doc. # 2055)
Regarding 21 U.S.C. § 851 Information”
(“Motion”). (Doc. # 2074). After reviewing the
Motion and the applicable law, the Court denies the Motion.
Government argues the categorical approach, which the Court
used to resolve the Government's prior Motion in Limine,
does not apply to the issue of whether Defendant's prior
Arizona State conviction can be used to enhance his sentence
in this case. The Court rejects this position based on the
authorities cited in its Order. (Doc. # 2055).
Government also argues that 21 U.S.C. § 841(b) defines
“felony drug offense” more expansively than the
Court previously construed it. The Government contends that
because 21 U.S.C. § 802 (44)'s definition of felony
drug offense includes offenses “relating
to narcotic drugs, marihuana, anabolic steroids, or
depressant or stimulant substances” (emphasis added),
21 U.S.C. § 841(b) captures Defendant's Arizona
State conviction. It appears to this Court that, in making
this argument, the Government has taken a page from the
dissent in Mellouli v. Lynch, 135 S.Ct. 1980, 1991-2
(2015)(phrase “relating to” encompasses state
offenses included in state statutes that regulate more
substances than the federal statutes).
the Supreme Court rejected such an argument in
the defendant, a lawful permanent resident, pleaded guilty to
possession of drug paraphernalia under Kansas law, based on a
statute that regulated nine substances not included in the
federal lists. Relying on 8 U.S.C. § 1227(a)(2)(B)(i)
which renders deportable those individuals convicted under
state statutes “relating to a
controlled substance (as defined in section 802 of title 21),
the Immigration and Customs Enforcement (“ICE”)
sought to deport the defendant. ICE did not identify the
substance that the defendant possessed, because it concluded
that it did not have to do so based on the purported breadth
of § 1227(a)(2)(B)(i). Mellouli, 135 S.Ct. at
Government argued to the Supreme Court “that the
overlap between state and federal drug schedules supports the
removal of aliens convicted of any drug crime”
irrespective of whether the state statute regulates more
substances than the federal statutes. Id. at 1989.
However, the Supreme Court rejected this argument, stating:
We therefore reject the argument that any drug
offense renders an alien removable, without regard to the
appearance of the drug on a § 802 schedule. Instead, to
trigger removal under § 1227(a)(2)(B)(i), the Government
must connect an element of the alien's conviction to a
drug "defined in [§ 802]."
Id. at 1991.
achieve its goal of enhancing Mr. Castro Cruz's sentence
pursuant to 21 U.S.C. § 841(b), the Government is asking
this Court to interpret the “relating to”
language of 21 U.S.C. § 802 (44) in a manner that has
been rejected by the Supreme Court. In essence, the
Government is asking this Court to ignore the majority
decision and implement the dissent in Mellouli. The
Court declines to do so.
Government also argues that 21 U.S.C. § 851(c)(1)
requires the Court to convene a fact-finding hearing
regarding Defendant's Arizona conviction, again as a
basis to circumvent the Court's use of the categorical
approach. However, it was the Government that asked this
Court “for a ruling, in advance of the sentencing
hearing set for January 18, 2018, that the defendant's
2006 Arizona Superior Court conviction under A.R.S. 13-3041
and 13-1308 is a prior state drug felony conviction for
purposes of Title 21 U.S.C. § 841(b) and Title 21 U.S.C.
§ 851 pertaining to recidivist offenders.” (Doc. #
1967 at 1.)
pertinent language of § 851(c)(1) is as follows:
If the person denies any allegation of the information of
prior conviction, or claims that any conviction alleged is
invalid, he shall file a written response to the information.
A copy of the response shall be served upon the United States
attorney. The court shall hold a hearing to determine any
issues raised by the response which would except the person
from increased punishment.
in his response to the Government's Motion, Defendant
Castro-Cruz does not deny the allegations relating to the
prior conviction or claim that his Arizona conviction is
invalid. Rather, he contests, as a legal matter, that his
“2006 Arizona Offense qualifies as a prior
“felony drug offense” within the meaning of the
sentencing-enhancement provisions of 21 U.S.C.
§§841(b)(1) (A)(i) and 841(b)(1)(B)(ii)(II) in
light of the recently authored opinion of United States