[00:00:05] Speaker 03:
Thank you, Your Honor.

[00:00:06] Speaker 03:
Good morning and may it please the court.

[00:00:08] Speaker 03:
Sonam Henderson for the appellant, Anthony Soto.

[00:00:10] Speaker 03:
I'm planning to reserve two minutes for a bottle and I'll watch my clock.

[00:00:15] Speaker 03:
Mr. Soto's California amphetamine and methamphetamine conviction should not have counted as career offender predicates because California indivisibly graphs analogs into its definitions of amphetamine and methamphetamine and it explicitly defines analogs more broadly than federal law.

[00:00:34] Speaker 03:
By my count, there are six major points of legal disagreement here.

[00:00:37] Speaker 03:
There's the intended for human consumption requirement.

[00:00:41] Speaker 03:
There's the partially conjunctive structure of the federal analog definition.

[00:00:45] Speaker 03:
There's this court's repeated holdings that realistic probability is met by facial textual over-breath.

[00:00:51] Speaker 03:
There is the indivisibility of California analogs from the controlled substances for which they are analogs.

[00:00:57] Speaker 03:
There's the inapplicability of the Rodriguez Gamboa case, and there's the government's claim that United States v. Bautista has been effectively overruled.

[00:01:06] Speaker 03:
I'm happy to take those issues in any order the court likes, or I can just start in on issue one.

[00:01:11] Speaker 04:
All right.

[00:01:12] Speaker 04:
Well, let me go right to a question I have.

[00:01:16] Speaker 04:
Assume for the sake of argument that on some of those points, you're correct.

[00:01:21] Speaker 04:
I'm having trouble understanding why the modified categorical approach doesn't apply here even if you're right on all the rest of your arguments.

[00:01:34] Speaker 04:
As I see it, the California Court of Appeal for example in Becker makes it clear that you have to specify the drug in the indictment that that has to or the complaint that that has to be something the jury has to agree on and here the Shepard documents to me at least make clear that what your client was previously convicted of was absolutely named and we've got

[00:02:03] Speaker 04:
methamphetamine in one and amphetamine in the other.

[00:02:07] Speaker 04:
So why doesn't the modified categorical approach work?

[00:02:11] Speaker 04:
Sorry for the not short question.

[00:02:12] Speaker 03:
I appreciate knowing where the course thinking is.

[00:02:16] Speaker 03:
Because these are means and not elements, I think respectfully, Your Honor, I think the

[00:02:26] Speaker 03:
I read Becker the opposite to how you're reading Becker, which is I see in Becker a court saying that the only charge in Becker is ecstasy, which at that point was an unlisted California substance.

[00:02:39] Speaker 03:
So it has that thing written in the charging document there had no legal meaning under the California drug statute.

[00:02:48] Speaker 03:
and didn't charge it as an analog, didn't charge it as a substance containing methamphetamine.

[00:02:57] Speaker 04:
But the court said the reference in count five to ecstasy

[00:03:03] Speaker 04:
fully apprised defendant that the prosecution was alleging and would seek to prove that ecstasy was a controlled substance for the purpose of the two sections.

[00:03:12] Speaker 04:
And I don't understand why that doesn't work for the argument the government is making if we were to get to that.

[00:03:20] Speaker 03:
Because it doesn't break it out between whether it's a controlled, in Becker there were two theories.

[00:03:26] Speaker 03:
The prosecution pursued two parallel theories.

[00:03:29] Speaker 03:
One was this ecstasy is methamphetamine because it contains methamphetamine.

[00:03:36] Speaker 03:
The other one was ecstasy is an analog of methamphetamine.

[00:03:40] Speaker 03:
And when the court says there were no more needed to be in the charge, it's saying the charge didn't have to specify as between those two legal theories.

[00:03:52] Speaker 00:
But if it had been

[00:03:57] Speaker 00:
They didn't say whether it was a list of controlled substance or an analog.

[00:04:05] Speaker 00:
But suppose the jury thought it was methamphetamine.

[00:04:12] Speaker 03:
The court, in its earlier ruling about sufficiency evidence, they said there was enough there for the jury to determine that it was methamphetamine.

[00:04:23] Speaker 03:
There are two rulings in Becker.

[00:04:25] Speaker 03:
One was about the sufficiency of the evidence.

[00:04:27] Speaker 03:
The other was about the sufficiency of the charging document.

[00:04:32] Speaker 03:
And they're saying that... Sorry?

[00:04:35] Speaker 00:
Efficient to show that ecstasy is either a controlled substance or a controlled substance analog of methamphetamine.

[00:04:41] Speaker 00:
Right.

[00:04:42] Speaker 00:
But it didn't say that it was methamphetamine.

[00:04:46] Speaker 00:
So the question is whether if you allege that it's ecstasy, can it still be actually methamphetamine?

[00:04:53] Speaker 03:
I think so because ecstasy has no legal meaning in California at that time, right?

[00:05:00] Speaker 03:
It's just a street name.

[00:05:02] Speaker 04:
It's not... It doesn't seem to be what Becker says when I read it.

[00:05:08] Speaker 03:
I mean, again, it's an unlisted substance.

[00:05:11] Speaker 04:
It's... But the Becker court specifically said the prosecution was alleging and would seek to prove that ecstasy was a controlled substance.

[00:05:24] Speaker 03:
Right, but because it's not listed, the only way that it can prove that it's a controlled substance is by linking it to something that actually is a controlled substance.

[00:05:32] Speaker 03:
In that case, they chose to link it to methamphetamine, either as a substance containing methamphetamine or as a substance that is an analog of methamphetamine.

[00:05:42] Speaker 00:
You also rely for this on the actual wording of the statute.

[00:05:46] Speaker 03:
I do, and I was just about to go there, Your Honor.

[00:05:49] Speaker 03:
The statute tells us very clearly that analogues are to be treated the same as and identical to the drugs for which they are analogues under the California drug statutes.

[00:06:02] Speaker 03:
So the question for divisibility is, are these separate crimes or are these different means of committing the same crime?

[00:06:09] Speaker 01:
What about People v. Davis?

[00:06:11] Speaker 01:
The Supreme Court discusses Becker.

[00:06:13] Speaker 01:
It's essentially the opposite of Becker where they proved MDA

[00:06:21] Speaker 01:
That the defendant had MDMA, but there was no expert testimony about what MDMA is and whether it is meth or an analog of meth.

[00:06:30] Speaker 01:
Right.

[00:06:30] Speaker 01:
And the Supreme Court said the prosecution didn't prove.

[00:06:34] Speaker 01:
It said proof that MDMA qualifies as a controlled substance or analog is an element of the crimes set out in sections 11377 and 11379, which I think are parallel to 11378 as you hear.

[00:06:51] Speaker 01:
So then the way I read Davis, which is the California Supreme Court agreeing with Becker,

[00:07:01] Speaker 01:
Proving MDMA is either a controlled substance or an analog is a alternate means Approving the element required in the crime.

[00:07:12] Speaker 03:
That's the same way I read it your honor And I have it I have that same quote here in my notes.

[00:07:16] Speaker 03:
I was going to read it to you It's an element.

[00:07:18] Speaker 03:
It's not they are alternate elements of different crimes or something like that I

[00:07:27] Speaker 03:
So again, going back to the statute, it's to treat it the same as or identical to.

[00:07:33] Speaker 03:
You wouldn't be treating it identical to if you say that unlike methamphetamine, it's more like a crime of opium or heroin or some totally separate drug than just another variety of methamphetamine.

[00:07:47] Speaker 01:
I assume in California, the prosecution could choose

[00:07:54] Speaker 01:
to say we are going to prove it is actually the controlled substance.

[00:07:58] Speaker 01:
They could make a choice between those alternate means of proving the element or they could say we're not sure it's the same thing or an analog but we'll have an expert say it's one or the other and it doesn't matter

[00:08:12] Speaker 01:
Which the jury decides as long as they agree it's one or the other we've proven the element but the prosecution I assume could choose either to narrow their theory to it's an analog or It's actually the controlled substance or they can leave it to the jury matter and then they would In that in that second scenario the jury it would not matter if the jury agreed to

[00:08:40] Speaker 04:
Was except if half the jury said it's actually a meth and half the jury said it's an analog It wouldn't matter for the purposes of the conviction no because it's a means so but if we disagreed with you right and if we found that that Methamphetamine and ecstasy are not alternate means but instead alternate elements of distinct crimes possession of

[00:09:05] Speaker 04:
for sale of methamphetamine and possession for sale of ecstasy, we would apply the modified categorical approach, yes?

[00:09:14] Speaker 03:
If they are elements and not means, then that invites you to the modified categorical approach.

[00:09:19] Speaker 04:
Right, modified categorical approach.

[00:09:21] Speaker 04:
And would you agree that if we were to get to the modified categorical approach for your client, the Shepard documents here are sufficient?

[00:09:32] Speaker 03:
I read methamphetamine and amphetamine, and I don't know whether that means methamphetamine, it's salt, it's isomers, whatever.

[00:09:40] Speaker 03:
I would agree that it's a harder case for us.

[00:09:44] Speaker 03:
And I have 20 seconds left.

[00:09:45] Speaker 00:
One last question, and we'll give it some time, won't we?

[00:09:48] Speaker 00:
Yes, I appreciate it.

[00:09:50] Speaker 00:
I don't know why this is a 10-minute case.

[00:09:53] Speaker 00:
To go back to the over-breath question,

[00:10:02] Speaker 00:
We thought it was overbroad for one of your two reasons, namely

[00:10:10] Speaker 00:
that the definition of analogous is broader.

[00:10:18] Speaker 00:
Then do we need to get to the other one, human consumption?

[00:10:23] Speaker 03:
My understanding is that one is enough.

[00:10:25] Speaker 03:
You just need over-breath and if there's facial textual over-breath that gets you your realistic probability.

[00:10:32] Speaker 00:
You have to agree that it's a badly drafted statute in terms of the definition of analog under federal law.

[00:10:39] Speaker 03:
Sorry?

[00:10:39] Speaker 00:
It's a badly drafted statute.

[00:10:41] Speaker 03:
I think it is a badly drafted statute.

[00:10:45] Speaker 00:
I ultimately think I found the Third Circuit opinion persuasive, but it's not an easy question.

[00:10:52] Speaker 03:
Certainly what I would have pointed the court to is the Hodge opinion.

[00:10:55] Speaker 03:
That's the deepest exploration of the text and the other

[00:11:00] Speaker 03:
what everyone's been assuming for years, and I think there's a reason every federal, you know, even if there's some discomfort with the wording of the statute, every federal court that's read it has come out that way.

[00:11:09] Speaker 04:
All right.

[00:11:10] Speaker 04:
We'll give you two minutes for rebuttal.

[00:11:11] Speaker 03:
I appreciate it, Your Honor.

[00:11:21] Speaker 02:
Good morning and may it please the court, Rajesh Srinivasan for the United States.

[00:11:25] Speaker 02:
I would like to start where you started Judge Bennett, which is the modified categorical approach.

[00:11:30] Speaker 02:
I agree with your reading of Becker,

[00:11:34] Speaker 02:
But in addition to that, Calcrim 2302, the jury instruction, explicitly says to list whether you're charging, whether the jury needs to find a control substance or an analog.

[00:11:47] Speaker 02:
And we get to look at that.

[00:11:48] Speaker 02:
And under Shepard, you get to look at that and decide whether that shows that the statute is divisible.

[00:11:55] Speaker 02:
Moreover, Calcrim... Why do we get to look at that?

[00:11:58] Speaker 02:
The Supreme Court has said that when deciding whether a statute is divisible, sometimes it's obvious and sometimes you need to look at charging documents and jury instructions and you are allowed to do that.

[00:12:12] Speaker 02:
And in this case, it would be appropriate to look at Calcrim 2302 and notice that it's listed out as different elements.

[00:12:22] Speaker 02:
And as Taylor said, the real concern about the categorical approach is to make sure that the jury is actually finding the facts sufficient to constitute the federal definition.

[00:12:34] Speaker 02:
So if the jury is charged with finding methamphetamine, then the defendant

[00:12:41] Speaker 02:
has committed a controlled substance offense and that is exactly what calcrim 2302 tells the jury to be instructed of in addition calcrim 11401 is a separate statute doesn't really make sense to read it as modifying the definition of methamphetamine

[00:12:58] Speaker 02:
Especially because all that the statutes supposed to do as section 11 400 makes clear is make analogs equivalent for purposes of penalties and punishment.

[00:13:09] Speaker 04:
Is there any California case that says it modifies the first statute?

[00:13:14] Speaker 04:
Not that I'm aware of.

[00:13:15] Speaker 01:
How do you deal with Davis?

[00:13:18] Speaker 01:
How do you deal with people versus Davis then?

[00:13:21] Speaker 01:
California Supreme Court saying that proof that MDMA qualifies as a controlled substance or analog is an element of the crimes.

[00:13:31] Speaker 02:
One element the way I read that is it's a sufficiency case and Proving either those are alternate elements and proving either one is sufficient to uphold a conviction I don't necessarily read it as defining different means of the same element particularly in light of the other evidence we have including calc room 2302 and that's in your brief right yes If there was doubt Do you have an opinion about whether we should certify the question to the California Supreme Court?

[00:14:03] Speaker 02:
I don't know what I'm authorized to say, is my opinion.

[00:14:07] Speaker 02:
I think it is not so open of a question that certification is necessary in light of Becker and the jury instruction.

[00:14:13] Speaker 02:
But that is, of course, left to the court's discretion.

[00:14:16] Speaker 04:
How long are those taking these days, do you know?

[00:14:20] Speaker 02:
The certifications?

[00:14:21] Speaker 02:
I am not aware, but I'm sure it's a long time.

[00:14:25] Speaker 02:
I do want to move, however, to the categorical approach, as Judge Berzon was getting to.

[00:14:33] Speaker 02:
Even under the categorical approach, the statute here is not overbroad.

[00:14:38] Speaker 02:
And I'll start with the easy issue, which is the human consumption element.

[00:14:42] Speaker 02:
The defense's argument relies on an incorrect premise, which is that 21 USC 813A defines what a controlled substance analog is.

[00:14:52] Speaker 02:
That's not what Section 813A says.

[00:14:55] Speaker 02:
What it says is

[00:14:56] Speaker 02:
if an analog to the extent it's intended for human consumption lands on schedule one.

[00:15:04] Speaker 02:
But there are other schedules that controlled substances are listed on.

[00:15:07] Speaker 02:
So all it's saying is that if it's intended for human consumption, it lands on schedule one.

[00:15:12] Speaker 02:
It doesn't say it's not an analog.

[00:15:14] Speaker 02:
The definition of the analog is in section 802.32.

[00:15:19] Speaker 02:
And that definition exactly functionally mirrors California's definition.

[00:15:23] Speaker 02:
So they should be interpreted the same way.

[00:15:26] Speaker 02:
On the admittedly more complicated issue is the conjunctive versus disjunctive reading of the statute.

[00:15:33] Speaker 02:
And Judge Berzon, you mentioned Hodge as an opinion that you were looking at.

[00:15:39] Speaker 02:
There is a twofold problem with Hodge.

[00:15:42] Speaker 02:
First, on the absurdity argument, at the time Hodge was decided

[00:15:46] Speaker 02:
The court felt that the only way to prevent the absurdity in that case, the candle wax plus flour combination being an analog, was to interpret the section one to be a conjunctive requirement with two or three.

[00:16:00] Speaker 02:
That's no longer true after McFadden v. United States, because now the defendant needs to know of the nature of the substance as a controlled substance analog.

[00:16:10] Speaker 02:
And a defendant obviously would know if they're dealing with flour

[00:16:14] Speaker 02:
and candle wax, that it will not have a similar effect to an analog.

[00:16:17] Speaker 00:
But that's circular.

[00:16:18] Speaker 00:
I mean, if the definition would include the wax, then that's all he had to know.

[00:16:27] Speaker 00:
In other words, if he had to know there was a control substance analog, but a control substance analog is defined as A, B, or C, and C is something that's represented to be an analog, that's all he had to know.

[00:16:41] Speaker 02:
I understand what you're saying.

[00:16:42] Speaker 02:
I don't read McFadden that way.

[00:16:44] Speaker 02:
I read McFadden as requiring knowledge that it acts as a controlled substance.

[00:16:51] Speaker 02:
But even if that were not the case, it is the defendant's burden to show a reasonable probability under California law that California would actually prosecute something that would not be an analog under federal law.

[00:17:06] Speaker 02:
And they have not cited to a case or a substance that meets that criterion.

[00:17:12] Speaker 02:
This is particularly an area where this court should be cautious because as far as I know, the court- Wait a minute.

[00:17:24] Speaker 00:
The California statute is either or, but it doesn't have the third category.

[00:17:29] Speaker 02:
That's correct.

[00:17:30] Speaker 00:
Right?

[00:17:31] Speaker 00:
So in some sense, it's narrower, not broader.

[00:17:34] Speaker 02:
So what the California statute does is combine section two or three.

[00:17:38] Speaker 00:
One does have some language in there about it, yes.

[00:17:40] Speaker 02:
And Section 1 is the same requirement.

[00:17:44] Speaker 02:
And it's an either-or requirement, as you pointed out.

[00:17:47] Speaker 02:
But there's not been a showing of a realistic probability that California would prosecute candle wax and flour as an analog, particularly... But the federal government did.

[00:17:59] Speaker 02:
The federal government did in Hodge.

[00:18:01] Speaker 02:
And my position is that they would no longer be able to do that under McFadden.

[00:18:07] Speaker 02:
So the absurdity that Hodge addressed is no longer present under McFadden.

[00:18:14] Speaker 02:
The other problem with applying the absurdity canon is even pre-McFadden, the absurdity canon is meant for exceptional circumstances in which there's a clear drafting error.

[00:18:26] Speaker 00:
That's not the whole of the story according to Hodge, right?

[00:18:30] Speaker 00:
That's sort of the ultimate, that's what was really bothering them because the case seems silly.

[00:18:35] Speaker 00:
But the linkage is to a grammatical or observation about the oddity of the way this thing is drafted so that it could either be and or or essentially.

[00:18:57] Speaker 00:
And at least the rule of lenity leads you to the conclusion that it's and not or.

[00:19:03] Speaker 02:
The rule of Lendi applies where there is actual uncertainty.

[00:19:07] Speaker 02:
But the parallel grammatical reasoning of Hodge is suspect.

[00:19:13] Speaker 02:
Because part of the rationale was that which could apply the term which in sections two and three could have an antecedent basis in either the word substance or the word chemical structure.

[00:19:27] Speaker 02:
And they said it makes more sense to interpret it.

[00:19:30] Speaker 02:
as having an antecedent basis in chemical structure.

[00:19:33] Speaker 02:
But if that's the antecedent basis, it would be very odd for someone to say the chemical structure of something has a stimulant effect, or the chemical structure is something that the person represents to have a stimulant or depressant effect.

[00:19:50] Speaker 02:
The better reading of this would be that all three sections are parallel.

[00:19:54] Speaker 02:
Section one also includes which, the chemical structure of which, and the antecedent basis, each which, links back to substance.

[00:20:03] Speaker 02:
Even if the court didn't agree with that argument, there is another narrowing word in Section 32A, and that's the word substance.

[00:20:13] Speaker 02:
Substance doesn't necessarily need to mean any substance in the world.

[00:20:18] Speaker 02:
When we refer to substance abuse, we're referring to harmful substances like drugs or alcohol.

[00:20:25] Speaker 02:
So without resorting to twisting the language and adding an and after subsection one and then demoting subsections two and three into alternate elements, instead of doing that tortured reading, the court could simply interpret substance to have a limiting principle on its own.

[00:20:43] Speaker 02:
And if it did that, there is a categorical match between California's law and the federal law.

[00:20:51] Speaker 02:
And finally, very briefly, I will touch on this court could also avoid the categorical approach entirely by adjoining six other circuits and interpreting the guideline according to its plain language.

[00:21:06] Speaker 02:
But that is something that I may have an opportunity to address in the next case.

[00:21:12] Speaker 04:
All right, thank you.

[00:21:13] Speaker 04:
Thank you.

[00:21:24] Speaker 03:
Thank you, Your Honor.

[00:21:26] Speaker 03:
I'm not sure that the court has questions.

[00:21:27] Speaker 03:
I could just jump in on the intended for human consumption requirement.

[00:21:33] Speaker 03:
I heard some skepticism from the court on that.

[00:21:36] Speaker 03:
I heard arguments from the government as if that were somehow obvious in the other direction.

[00:21:41] Speaker 00:
And I don't... I mean, that one seems subject to the suggestion that do we have any evidence that California would ever prosecute.

[00:21:54] Speaker 00:
for something that was used for animals.

[00:21:57] Speaker 00:
I don't even know what it means exactly.

[00:22:01] Speaker 03:
It's less whether California would truly prosecute something that's truly not intended for human consumption as opposed to whether that's an element they have to prove.

[00:22:13] Speaker 03:
And that is a barrier in federal prosecutions.

[00:22:16] Speaker 03:
Federal prosecutors have complained that that makes it harder for them to do these things.

[00:22:20] Speaker 03:
And it's a barrier that's there in federal law.

[00:22:23] Speaker 03:
It's absent in state law.

[00:22:28] Speaker 03:
A set of provisions that the government's pointing to is creating an intended for human consumption requirement.

[00:22:33] Speaker 03:
To me, 11401C3 reads very obviously as a research exemption.

[00:22:39] Speaker 03:
It's, you know, the language is before an exemption is specified in paragraph two takes place.

[00:22:44] Speaker 00:
Well, but it's before, I don't even, that's the oddity.

[00:22:48] Speaker 00:
is actually certified as an experiment.

[00:22:51] Speaker 03:
So I think I can explain.

[00:22:52] Speaker 03:
If you look at paragraph two, that's an exemption for personal, sorry, for investigational use, quote, with respect to a particular person.

[00:23:01] Speaker 03:
And then it's saying,

[00:23:02] Speaker 03:
Before you get that exemption, you're a particular person.

[00:23:06] Speaker 03:
You're an investigator of analog-like chemical substances.

[00:23:11] Speaker 03:
Before you apply for your exemption, before you get your exemption, as long as the thing that you're working with is not intended by you for human consumption, you're fine.

[00:23:21] Speaker 03:
That's how I read that.

[00:23:23] Speaker 03:
I don't think it says anything more than that.

[00:23:25] Speaker 00:
So is this supposed to be protecting

[00:23:28] Speaker 00:
animal experimenters?

[00:23:30] Speaker 00:
Is that what we're talking about?

[00:23:31] Speaker 03:
Not animal.

[00:23:31] Speaker 03:
I mean it could be any kind of chemist who's making, you know the chemist could be making bath salts that are really bath salts and they're trying to invent the perfect bath salt and someone out there might take this bath salt and snort it or smoke it or whatever but this chemist is just you know truly

[00:23:45] Speaker 03:
honestly focused on, you know, the bath salt industry, right?

[00:23:49] Speaker 03:
I don't think it needs to be animal experimentation or anything.

[00:23:52] Speaker 01:
It's like glue.

[00:23:53] Speaker 01:
I mean, people make glue and then other people use it as a drug.

[00:23:56] Speaker 03:
Some people make glue, some people sniff glue, yes.

[00:23:59] Speaker 04:
All right.

[00:24:00] Speaker 04:
Thank you, counsel.

[00:24:00] Speaker 03:
Thank you very much.

[00:24:01] Speaker 04:
We thank both counsel for their arguments.

[00:24:02] Speaker 04:
The case just argued is submitted.

[00:24:05] Speaker 04:
With that, we'll move to the related case, United States versus Reed, which is also set for 10 minutes.