USA V. JERMAINE MITCHELL, No. 20-10196 (9th Cir. 2021)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED DEC 13 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. U.S. COURT OF APPEALS 20-10196 D.C. No. 3:04-cr-00010-HDM-VPC-1 v. JERMAINE ALONZO MITCHELL, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding Argued and Submitted October 22, 2021 San Francisco, California Before: MURGUIA, Chief Judge, and BERZON and BEA, Circuit Judges. Jermaine Mitchell appeals the district court’s order granting him a reduced sentence pursuant to the First Step Act of 2018 (“F.S.A.”). We review the district court’s sentencing decision for abuse of discretion, see United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc), and we affirm. Mitchell was convicted in 2007 of possession with intent to distribute * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. cocaine base in excess of 50 grams, in violation of federal law. Because of his prior controlled substances convictions, Mitchell received a mandatory life sentence. After Mitchell filed a motion for a reduced sentence under the F.S.A., the district court reduced his sentence from a term of life to a term of 360 months. Mitchell appeals the district court’s decision not to reduce his sentence further. Mitchell argues that he no longer qualifies as a career offender today because, due to changes in Nevada law, his prior conviction for violating Nevada Revised Statutes (“N.R.S.”) § 453.337 no longer qualifies as a predicate offense for a career offender enhancement under the federal sentencing guidelines. Mitchell argues that the district court therefore should have assigned him a noncareer offender guideline range and, alternatively, that the district court erroneously believed it could not consider Mitchell’s purported non-career offender status as a sentencing factor under 18 U.S.C. § 3553(a). Mitchell’s assertion that, due to changes in law since his 2007 conviction, his N.R.S. § 453.337 conviction no longer qualifies as a predicate is incorrect.1 In United States v. Figueroa-Beltran (Figuera-Beltran I), 892 F.3d 997 (9th Cir. 2018), this Court held that N.R.S. § 453.337 was not a categorical match with the federal Controlled Substances Act (“C.S.A.”) but certified to the Nevada Supreme 1 The parties do not dispute that one of Mitchell’s other prior offenses, his conviction for violating California Health and Safety Code § 11351.5, still qualifies as a career offender predicate. 2 Court the question whether the statute is divisible, see id. at 1002–04. In turn, the Nevada Supreme Court held that “the identity of a substance” listed in N.R.S. § 453.337 “is an element that must be proven to sustain a conviction under” the statute, “rather than a means of committing the offense.” Figueroa-Beltran v. United States (Figueroa-Beltran II), 136 Nev. 386, 396 (2020). “In light of the guidance provided by the Nevada Supreme Court,” this Court then held “that § 453.337 is a divisible statute.” United States v. Figueroa-Beltran (FigueroaBeltran III), 995 F.3d 724, 733 (9th Cir. 2021). Mitchell is therefore incorrect to assert that N.R.S. § 453.337 is indivisible. Mitchell argues that whether his N.R.S. § 453.337 conviction is a career offender predicate remains an open question because Figueroa-Beltran III did not specifically address the retroactivity of the Nevada Supreme Court’s interpretation of the statute. But “[t]he theory of a judicial interpretation of a statute is that the interpretation gives the meaning of the statute from its inception, and does not merely give an interpretation to be used from the date of the decision.” United States v. City of Tacoma, 332 F.3d 574, 580 (9th Cir. 2003). The Nevada Supreme Court’s and this Court’s conclusion that N.R.S. § 453.337 is divisible therefore applies to Mitchell’s Nevada conviction. Because the Nevada statute is divisible, this Court applies the modified categorical approach to determine whether Mitchell’s N.R.S. § 453.337 conviction 3 was for possession of a controlled substance listed in the C.S.A., thereby qualifying as a career offender predicate. Figueroa-Beltran III, 995 F.3d at 733. To apply the modified categorical approach, a federal court “examine[s] judicially noticeable documents of conviction ‘to determine which statutory phrase was the basis for the conviction.’” United States v. Martinez-Lopez, 864 F.3d 1034, 1039 (9th Cir. 2017) (en banc) (quoting Descamps v. United States, 570 U.S. 254, 263 (2013)). Such judicially noticeable documents include “a limited class of materials, such as charging documents, plea agreements, and judgments of conviction.” Figueroa-Beltran III, 995 F.3d at 731; see also Shepard v. United States, 544 U.S. 13, 16 (2005). Here, the Nevada information from Mitchell’s N.R.S. § 453.337 conviction charges that he “unlawfully and knowingly ha[d] in his possession and under his dominion and control a Schedule I controlled substance, to wit: cocaine.” Similarly, Mitchell’s guilty plea memorandum states that, as to the N.R.S. § 453.337 count, he “willfully, unlawfully and knowingly ha[d] in [his] possession . . . cocaine” with the intent to distribute. The C.S.A. lists cocaine as a Schedule II controlled substance. See 21 U.S.C. § 812. Mitchell’s conviction under N.R.S. § 453.337 accordingly constitutes a career offender predicate offense because he “pled or was found guilty of the elements constituting a federal” controlled substances offense. Martinez-Lopez, 864 F.3d at 1039. 4 Because, under current law, Mitchell has at least two prior felony convictions for a controlled substance offense, he still qualifies as a career offender. See U.S.S.G. § 4B1.1(a). Mitchell’s argument that the district court erred by not considering his purported non-career offender status therefore fails. AFFIRMED. 5

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