Opinion
4:20-CV-04112-KES
12-23-2024
JUSTIN THOMAS MORALES, Movant, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE
INTRODUCTION
This matter is before the court on remand following an appeal to the Eighth Circuit. Justin Thomas Morales moves the court for an order vacating, setting aside, or correcting his sentence pursuant to 28 U.S.C. § 2255. See Docket Nos. 1 & 48. The United States (“government”) resists the motion. See Docket Nos. 52 & 55. This matter was referred to this magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and DSD LR Civ. 72.1.
This opinion references documents filed in Mr. Morales' civil habeas file by citing to the docket number therein. References to documents in Mr. Morales' underlying criminal case, United States v. Morales, 4:16-cr-40124 (D.S.D.) are cited by inserting “CR” before the docket number of the document in the criminal case.
FACTS
The facts of this matter were discussed in detail in this court's prior report and recommendation. That prior recitation of facts is incorporated by reference herein. See Docket No. 25 at pp. 2-6. The court reiterates the following facts pertinent to deciding the instant motion.
Mr. Morales was indicted in this court on a charge of conspiracy to distribute a controlled substance on November 9, 2016. CR Docket No. 1. Attorney Janet Olson was appointed to represent him. CR Docket Nos. 17 & 21. Additional charges and co-defendants were added later. CR Docket No. 49. The government filed an information pursuant to 21 U.S.C. § 851(a), later amended, indicating it would seek increased punishment in the event of a conviction based on Mr. Morales' prior drug possession conviction in the state of Kansas, Sedgwick County, dated November 23, 2004. CR Docket Nos. 128 & 236.
Mr. Morales went to trial and was convicted by a unanimous jury of conspiracy to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine. CR Docket No. 186. Prior to sentencing, defense counsel attacked the government's § 851(a) information by arguing the offense in question was essentially a misdemeanor and that the conviction was not final because it was then being collaterally attacked. CR Docket Nos. 217, 218 & 266 at p. 65.
A sentencing hearing was held on May 1 and 18, 2018. See CR Docket No. 256 & 266. The court rejected defense counsel's § 851(a) argument, finding that the government had proved Mr. Morales was convicted of a felony drug offense in Kansas in 2004, and that the conviction was final. CR Docket No. 266 at p. 67. Based on the court's findings and conclusions, it held that the § 851 enhancement applied in Mr. Morales' federal sentencing. Id. at p. 69. Specifically, the § 851 information changed the mandatory minimum term of imprisonment applicable to Mr. Morales from 10 years to 20 years. See 21 U.S.C. § 841(b)(1)(A)(viii) (2018). It also served to increase the mandatory minimum term of supervised release from 5 years to 10 years. Id.
The court then calculated Mr. Morales' USSG range to be life imprisonment based on a total offense level of 43 and a criminal history category of IV. See CR Docket No. 256 at pp. 132-33. Although the court emphasized Mr. Morales' extensive criminal history, based on counsel's argument that the Kansas crime for which Mr. Morales was convicted of a felony was now a misdemeanor under Kansas law, the court departed downward to a sentence of 360 months' imprisonment. Id. at pp. 134-35; CR Docket No. 245. The increased mandatory minimum term of supervised release of 10 years was also ordered. CR Docket No. 245 at p. 3.
Mr. Morales filed a timely notice of appeal. See CR Docket No. 248. No issue was raised on appeal concerning the propriety or sufficiency of the government's § 851 information. United States v. Guzman, 926 F.3d 991, 9991003 (8th Cir. 2019). The Eighth Circuit affirmed Mr. Morales' sentence and conviction in all respects. Id. at 1003.
In his § 2255 motion, Mr. Morales asserted the singular claim that his trial counsel was ineffective in failing to argue that the Kansas conviction recited in the government's § 851 information could not be used for sentence enhancement purposes because the Kansas conviction was not a “felony drug offense” under 21 U.S.C. §§ 841(b)(1)(A) and 851(a) and Mathis v. United States, 579 U.S. 500, 503 (2016). Docket No. 2 at p. 5. He asserted his lawyer was constitutionally deficient in failing to raise this argument in contravention of the government's § 851(a) information. Id. at pp. 10-11.
Furthermore, he pointed out that with the § 851 information he was subject to a mandatory minimum sentence of 20 years while without the § 851 enhancement the mandatory minimum sentence would have been only 10 years. See id. at pp. 12-13. Because his mandatory minimum sentence was increased by 10 years as a result of his lawyer's allegedly ineffective representation, Mr. Morales asserted he was thereby prejudiced. Mr. Morales sought a full resentencing without application of the § 851 penalty enhancement. See Docket No. 1 at p. 12.
In this court's first analysis of Mr. Morales' motion, the court declined to decide whether defense counsel had been ineffective because, the court concluded, Mr. Morales had not shown prejudice. Docket No. 25 at pp. 22-23. Even if Mr. Morales had been sentenced without reference to the government's § 851(a) information, this court noted that Mr. Morales' United States Sentencing Guidelines (“USSG”) range was life imprisonment. Id. at p. 22. Also, this court noted that the sentencing court had departed downward from the USSG range and imposed a sentence of 360 months' imprisonment. Id. Because the actual sentence imposed in Mr. Morales' case exceeded the statutory mandatory minimum sentence-with or without the § 851(a) enhancement-the court concluded Mr. Morales had failed to show prejudice. Id. at pp. 22-23.
The Eighth Circuit disagreed, correctly noting that Mr. Morales was subject to not only an enhanced term of imprisonment because of the § 851 information, but also an enhanced term of supervised release. Morales v. United States, No. 21-2363, 2023 WL 2608009, at *1-2 (8th Cir. Mar. 23, 2023) (per curiam). Because there was potential prejudice if counsel was ineffective due to the increased supervised release term, the Eighth Circuit remanded the matter “for further consideration, including the threshold determination of whether counsel was deficient.” Id. at *2. Accordingly, after receiving the parties' briefing, the court now considers the issue
DISCUSSION
A. Arguments of the Parties
Mr. Morales argues that his 2003 Kansas conviction does not qualify as a “felony drug offense” conviction whereby his federal sentence could have properly been enhanced. Docket No. 49 at p. 8. When a state court conviction is used for enhancement under § 851(a), Mr. Morales argues the court must apply the categorical approach to determine if the state conviction qualifies as a “felony drug offense.” Id. at p. 9. Because Kansas law at the time of Mr. Morales' conviction criminalized three substances not included in the federal schedule of controlled substances, Mr. Morales argues that his Kansas conviction was improperly used in the government's § 851(a) information. Id. at pp. 10-15. He argues his defense counsel was constitutionally ineffective for failing to raise this argument at his sentencing hearing. Id. at pp. 2, 20-21, 23-24.
The government's § 851(a) information recited a November 2004 Kansas conviction (see CR Docket No. 236), but Mr. Morales has produced a copy of the judgment and asserts that the conviction was actually in November 2003. See Docket No. 49-1 at pp. 10 & 13.
The government does not dispute Mr. Morales' arguments and analysis about the application of the categorical approach or the end conclusion regarding whether Mr. Morales' Kansas conviction was properly used to enhance his sentence. Docket Nos. 52 & 55. Rather, the government stakes its position on the assertion that the argument against the use of the Kansas conviction was a novel argument at the time of Mr. Morales' sentencing hearing. Docket No. 52 at pp. 6-12; Docket No. 55 at pp. 6-13. Since counsel is not constitutionally ineffective for failing to raise novel claims, the government argues that Mr. Morales' defense counsel was not ineffective. Docket No. 52 at pp. 6-12; Docket No. 55 at pp. 6-13.
Mr. Morales counters that the government did not properly raise the novel-issue-of-law issue on appeal and asserts that this court should not consider the argument. Docket No. 60 at p. 2. Mr. Morales also argues that the issue was not novel at the time of his sentencing. Id. at pp. 3-9.
The court finds that the government raised the novelty argument at the first opportunity. In the government's very first brief to this court on Mr. Morales' § 2255 motion, the government did not use the term “novel” but argued that counsel was not ineffective because the Mathis decision had not been extended to arguments under § 851. See Docket No. 23 at p. 6. Because Mathis had not been so extended, the government argued that defense counsel had not been ineffective for failing to raise a challenge to Mr. Morales' § 851(a) information based on the analysis of Mathis. Id. at pp. 6-7. This was, in essence, an argument by the government that defense counsel was not ineffective for failing to raise a novel legal argument in Mr. Morales' defense.
That argument-raised on an undecided issue-may now be revived on remand. When this court first considered Mr. Morales' motion, it found it unnecessary to decide whether counsel was deficient, because it believed Mr. Morales was unable to show prejudice. Docket No. 25 at pp. 21-25. It therefore would have been inappropriate for the government to raise the novelty argument on appeal, because an appellate court “do[es] not normally consider issues which the district court [did] not rule upon.” First Union Nat'l Bank v. Pictet Overseas Trust Corp., 351 F.3d 810, 816 (8th Cir. 2003). But on remand, an argument that was timely raised in the district court on an undecided issue may be revived. United States v. Castellanos, 608 F.3d 1010, 1019 (8th Cir. 2010). Here, the Eighth Circuit remanded Mr. Morales' case for the district court to decide the issue of counsel deficiency. Morales, 2023 WL 2608009, at *2. Because the novelty argument was properly raised in the first instance, the court finds it was not waived and now addresses it.
B. Standard for Claims of Ineffective Assistance of Counsel
The Sixth Amendment of the Constitution of the United States affords a criminal defendant the right to assistance of counsel in criminal cases. U.S. CONST. amend. VI. The Supreme Court “has recognized that ‘the right to counsel is the right to the effective assistance of counsel.' ” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). Strickland is the benchmark case for determining if counsel's assistance was so defective as to violate a criminal defendant's Sixth Amendment rights and require reversal of a conviction. United States v. Kehoe, 712 F.3d 1251, 1253 (8th Cir. 2013).
Mr. Morales must satisfy the following test in order to show his counsel was constitutionally ineffective:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.Strickland, 466 U.S. at 687. The petitioner must meet both prongs of the above test; if a court believes the petitioner has failed to show prejudice, the court need not analyze whether counsel's performance was deficient and vice versa. Id. at 697.
The right to effective assistance of counsel guaranteed by the Sixth Amendment applies to all critical stages of criminal proceedings, including at sentencing. Lafler v. Cooper, 566 U.S. 156, 165 (2012). “Any amount of additional jail time [as a result of counsel's deficiencies] has Sixth Amendment significance.” Id. (cleaned up). In order to show prejudice from an alleged error by counsel at sentencing, the habeas petitioner must show that there is reasonable probability he would have received a lesser sentence if counsel had not erred. Id. at 167-68. “The favorable sentence that eluded the defendant in the criminal proceeding appears to be the sentence he or others in his position would have received in the ordinary course, absent the failings of counsel.” Id.
“There is a presumption that any challenged action was sound trial strategy and that counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment.” Hall v. Luebbers, 296 F.3d 685, 692 (8th Cir. 2002) (quoting state-court decision below, Missouri v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998)). It is the petitioner's burden to overcome this presumption, and a “petitioner cannot build a showing of prejudice on a series of errors, none of which would by itself meet the prejudice test.” Id. (citation omitted). Counsel's conduct must be judged by the standards for legal representation which existed at the time of the representation, not by standards promulgated after the representation. Bobby v. Van Hook, 558 U.S. 4, 7-9 (2009) (per curiam). American Bar Association standards and similar directives to lawyers are only guides as to what reasonableness of counsel's conduct is; they are not its definitive definition. Id. (citing Strickland, 466 U.S. at 688). The Supreme Court distinguishes between those cases in which the new evidence “would barely have altered the sentencing profile presented to the sentencing judge,” and those that would have had a reasonable probability of changing the result. Porter v. McCollum, 558 U.S. 30, 41 (2009) (per curiam) (quoting Strickland, 466 U.S. at 700). It is not necessary for the petitioner to show “that counsel's deficient conduct more likely than not altered the outcome” of his case, only that there is “a probability sufficient to undermine confidence in [that] outcome.” Id. at 44 (quoting Strickland, 466 U.S. at 693-94) (alteration in original). Judicial scrutiny of attorney performance is “highly deferential,” with a “strong presumption that counsel's conduct falls within the . . . range of reasonable professional” conduct. Strickland, 466 U.S. at 689.
A “counsel's failure to raise a novel argument” or an issue of unsettled law “does not render his performance constitutionally ineffective.” Basham v. United States, 811 F.3d 1026, 1029 (8th Cir. 2016) (citation omitted) (cleaned up); New v. United States, 652 F.3d 949, 952 (8th Cir. 2011); Anderson v. United States, 393 F.3d 749, 754 (8th Cir. 2005). Even where an issue is percolating in the lower courts, or where a split of authority exists among the courts, counsel's performance “falls within the wide range of professionally competent assistance” if such an issue is not raised. Basham, 811 F.3d at 1029; Fields v. United States, 201 F.3d 1025, 1027-28 (8th Cir. 2000). “[F]ailure to raise arguments that require the resolution of unsettled legal questions generally does not render” a lawyer's assistance constitutionally ineffective. Basham, 811 F.3d at 1029 (quoting New, 652 F.3d at 952).
The district court assigned to this matter has previously ruled that there must be United States Supreme Court or Eighth Circuit precedent on the direct issue before an issue will be determined not to be novel. Sorensen v. United States, 4:19-cv-04190-KES, 2021 WL 3733024, at *4 (D.S.D. Aug. 24, 2021). If the case law the § 2255 movant relies upon for the ineffective assistance claim is not “clearly controlling” (i.e. Supreme Court or Eighth Circuit precedent), then counsel is not ineffective. Id. (citing Kelly v. United States, 819 F.3d 1044, 1050-51 (8th Cir. 2016)).
C. Application of Strickland to Mr. Morales' Claim
1. Outline of the Ineffective Assistance Claim
a. Statutory Scheme
In order to analyze whether the claim Mr. Morales is now making was a novel claim at the time of his May 2018 sentencing, the court finds it necessary to set forth the law undergirding that claim.
According to the law applicable in May 2018, an § 851(a) information had the effect of increasing a defendant's penalty for a violation of 21 U.S.C. § 841(a) if the defendant had previously been convicted of a “felony drug offense” as listed in the information. See 21 U.S.C. § 841(b)(1)(A)(viii) (2018).
Changes to the federal statutes discussed in the body of this opinion were wrought by the passage of the First Step Act (“FSA”) in December 2018. See generally Pub. L. No. 115-391, 132 Stat. 5194 (2018).
“Felony drug offense” was defined in May 2018 as “an offense that is punishable by imprisonment for more than one year under any law of the United States or a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44) (2018).
Following passage of the FSA, only a prior conviction for a “serious drug felony” serves to increase the penalty for an offense under § 841(a) and the increase is only 5 more years added, not 10, to the mandatory minimum term of incarceration. See 21 U.S.C. § 841(b)(1)(A)(viii) (2023) (emphasis added); § 401, 132 Stat. at 5220-21. The increase to the mandatory minimum term of supervised release remains the same post-FSA: 10 years. Compare 21 U.S.C. § 841(b)(1)(A)(viii) (2018) with § 841(b)(1)(A)(viii) (2023). A “serious drug felony” is now defined as “an offense described in section 924(e)(2) of Title 18 for which- (A) the offender served a term of imprisonment of more than 12 months; and (B) the offender's release from any term of imprisonment was within 15 years of the commencement of the instant offense.” 21 U.S.C. § 802(57).
Federal law describes the drug crimes of manufacturing, distributing, dispensing, or possessing with the intent to manufacture, distribute, or dispense as doing so with regard to a “controlled substance.” See 21 U.S.C. § 841(a)(1). The specific substances covered by the the general term “controlled substance” are found in detailed schedules numbered I - V. See 21 U.S.C. § 812. Methamphetamine, depending on its form, is found in either schedule II or III of the schedules of federal controlled substances. See 21 U.S.C. § 812, Schedules II(c) & III(a)(3).
Many states' statutory drug schemes resemble the federal scheme in that possession or distribution of a “controlled substance” generally is criminalized. One must then refer to a separate schedule of controlled substances to determine if the specific substance a suspect possessed or distributed was on the prohibited list. See, e.g. SDCL §§ 22-42-2, -3, -4.2, -5 (criminalizing various acts with regard to “controlled substances”); SDCL §§ 34-20B-10 to -26 (listing schedules of substances which are controlled).
b. Mathis v. United States
In Mathis v. United States, Mathis' sentence for unlawful possession of a firearm was enhanced under the Armed Career Criminal Act (ACCA), which “prescribe[d] ¶ 15-year mandatory minimum sentence” when a defendant had “three prior convictions for a violent felony.” Mathis, 579 U.S. at 503 (citing 18 U.S.C. § 924(e)(1)). Mr. Mathis had five prior Iowa convictions for the violent felony of “burglary.” Id. at 503, 507-08; see 18 U.S.C. 924(e)(2)(B)(ii). Settled law established that a prior state court conviction for burglary qualified as a burglary under the ACCA for purposes of enhancing a federal defendant's sentence “if, but only if, its elements are the same as, or narrower than, those of the generic offense” of burglary. Mathis, 579 U.S. at 503. Settled law also established that generic burglary meant a crime containing “the following elements: an unlawful or unprivileged entry into . . . a building or other structure, with intent to commit a crime.” Id. at 504 (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)).
The Court explained that, to determine whether a prior conviction for burglary fits the definition of generic burglary under the ACCA, “courts apply . . . the categorical approach: They focus solely on whether the elements of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the particular facts of the case.” Id. Distinguishing between elements of an offense and facts is central to the determination. Id.
“Elements are the constituent parts of a crime's legal definition-the things the prosecution must prove to sustain a conviction.” Id. (cleaned up) (quotations omitted). Elements must be proven beyond a reasonable doubt and found by a jury in order to convict the defendant. Id. (citation omitted). At a plea hearing, the defendant must admit each element in order for the plea to be valid. Id. (citation omitted).
Facts, sometimes called “brute facts,” by contrast, are “circumstances or events having no legal effect or consequence.” Id. (cleaned up) (quotations omitted). They do not have to be “found by a jury nor admitted by a defendant.” Id. Another term used to describe facts are “means,” or “mere means.” Id. at 506, 514 (citation omitted).
Under the categorical approach, if the crime of conviction has elements that are the same as or narrower than the generic offense, it counts as a valid “violent felony” under the ACCA. Id. But if the elements of the crime of conviction include conduct broader than the generic offense, it is not a qualifying prior conviction for purposes of sentence enhancement under the ACCA. Id. Under the categorical approach, courts are limited to comparing the elements of the offense of conviction-without regard to the facts or means of the crime-with the elements of the generic offense, in Mathis' case, burglary. Id. at 504-05. Thus, if the elements of the conviction are broader than the elements of generic burglary, the conviction cannot constitute a “violent felony” under the ACCA, even if the actual facts of the defendant's crime of conviction would fit within the definition of generic burglary. Id. at 505.
The Court noted it had allowed a modified categorical approach allowing the sentencing court to look to a limited list of sources relevant to the crime of conviction if a statute had a “divisible structure.” Id. at 505 (cleaned up). A statute with a divisible structure is one that “list[s] elements in the alternative, and thereby define[s] multiple crimes.” Id. Under these circumstances, the sentencing court may look to the indictment, jury instructions or the plea to determine which of the alternative substantive crimes the defendant was actually convicted of. Id. at 505-06. But the modified categorical approach is only applicable where a statute contains an alternative list of elements. Id. It cannot be applied to a statute that lists alternative means. Id. at 512-13.
In Mathis' case, he had five prior Iowa convictions for burglary and the statute of conviction covered conduct broader than that covered by generic burglary-in addition to criminalizing unlawful entry into a building or other structure like generic burglary, the Iowa statute also made it a crime to enter “vehicle[s],” which was a location not covered by generic burglary. Id. at 507 (citation omitted). The Court, with reference to Iowa state court opinions, held that the statute defined one crime, with one set of elements, while specifying multiple factual means of satisfying the locational element, only some of which were congruent with the elements of generic burglary. Id. (citations omitted).
The district court had looked to Mathis' underlying conviction documents and determined he had actually burgled a structure. Id. at 507-08. The court then applied the ACCA enhancement by looking behind the elements of the state offense and examining state court documents that described Mathis' actual actions. Id. The Eighth Circuit affirmed, holding that whether a statute delineated alternative means of committing a crime, or alternative elements, either circumstance would permit the sentencing court to “look behind” the statute itself and examine old record materials to determine what conduct the defendant had actually engaged in that was the basis of his conviction. Id. at 508. The Supreme Court reversed. Id. at 513, 521.
The Court stated it had “often held, and in no uncertain terms, that a state crime cannot qualify as an ACCA predicate if its elements are broader than those of a listed generic offense.” Id. at 509. How a defendant actually committed the crime is not relevant. Id. That rule, the Court emphasized, applies whether the statute set forth a single means of committing the crime, or several alternative possible means of commission. Id. The state legislature's prerogative to list alternative means in a single statute “gives a sentencing court no special warrant to explore the facts of an offense, rather than to determine the crime's elements and compare them with the generic definition.” Id.
The Court held that the modified categorical approach serves “solely” to “identify the elements of the crime of conviction when a statute's disjunctive phrasing renders one (or more) of [the elements] opaque.” Id. at 513. Lower courts are not allowed to repurpose the modified categorical approach to discover whether the facts of a defendant's prior conviction would match the generic definition under the ACCA. Id. at 513-14.
The Mathis Court's exasperation with lower courts improperly evading application of the categorical approach's comparison of elements only is palpable in the opinion. The Court stated its holding had been the law for more than a quarter of a century. Id. at 509 (citing Taylor, 495 U.S. at 601). The Court stated Taylor's holding “became a mantra in our subsequent” decisions. Id. at 510. The Court stated it had “held, over and over” that courts are to compare elements only and disregard specific facts of a crime. Id. at 519. “At the risk of repetition (perhaps downright tedium),” the court laid out examples from its recent opinions:
--the ACCA “refers to predicate offenses in terms not of prior conduct but of prior ‘convictions' and the ‘element[s]' of crimes.” Shepard v. United States, 544 U.S. 13, 19 (2005).
--“[W]e have avoided any inquiry into the underlying facts of [the defendant's] particular offense, and have looked solely to the elements of [burglary] as defined by [state] law.” James v. United States, 550 U.S. 192, 214 (2007).
--“[W]e consider [only] the elements of the offense[,] without inquiring into the specific conduct of this particular offender.” Sykes v. United States, 564 U.S. 1, 7 (2011) (quoting James, 550 U.S. at 202).
--“The key [under ACCA] is elements, not facts.” Descamps v. United States, 570 U.S. 254, 261 (2013).Mathis, 579 U.S. at 510.
Further, the Mathis Court emphasized it has hewed to the same precedent in cases outside the ACCA, such as in immigration cases, where it has stated a sentencing judge “must look at the ‘formal element[s] of a conviction[,] rather than to the specific facts underlying the crime,' in deciding whether to deport an alien for committing an ‘aggravated felony.' ” Id. at 510 n.2 (quoting Kawashima v. Holder, 565 U.S. 478, 482-83 (2012)) (alterations in original).
The Court articulated three reasons in support of its precedent. Id. at 510-11. First, Congress intended application of the categorical approach by using the language “previous convictions” instead of “an offense committed.” Id. This legislative choice of words, the Court held, indicated sentencing courts should only ask whether “the defendant had been convicted of crimes falling within certain categories,” and not ask about the specific facts behind a conviction. Id. at 511 (quoting Taylor, 495 U.S. at 600).
Second, the Court in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), held that the Sixth Amendment forbids sentencing courts from finding facts that serve to increase a defendant's punishment, except for finding “the simple fact of a prior conviction.” Mathis, 579 U.S. at 511. That means a sentencing court may only look to the elements of the statute of conviction, it cannot scour through the defendant's underlying state file trying to “find facts” which would place the defendant within the ACCA's definition of generic burglary and thereby increase his punishment. Id. at 511-12.
Third, statements of facts in an underlying record, the proof of which are unnecessary to the establishment that a crime has been committed, are unreliable. Id. at 512. Because the facts are not required for conviction, at a trial and, even more, at a plea hearing, a defendant may have zero incentive to contest facts which do not affect the outcome of his case, and he may even be precluded from doing so by the court. Id. at 512. Furthermore, a prosecutor or judge's inaccurate statement of means (as opposed to elements) are likely to go uncorrected. Id.
Remember, the Mathis Court was construing a statute which listed alternative means of committing the crime of burglary, not alternative elements. The whole question was whether the modified categorical approach could be applied when the alternatively listed things were means, not elements. Mathis, 579 U.S. at 512, 517-18.
The Court concluded by stating that Congress' use of the term “convictions” in the ACCA still supports an elements-based inquiry and “directly refutes” a fact-based approach. Id. The Court stated its decision in Descamps “made clear that when the Court had earlier said (and said and said) ‘elements,' it meant just that”; it did not mean “means.” Id. at 515-16.
c. Mellouli v. Lynch
In June 2015, the Supreme Court decided Mellouli v. Lynch, 575 U.S. 798 (2015). In Mellouli, the Court construed a deportation law which was defined with reference to federal drug laws. Id. at 800. Specifically, 8 U.S.C. § 1227(a)(2)(B)(i) of the immigration laws authorized the removal of an alien “convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in § 802 of Title 21).” Id. Under § 802(6), the term “controlled substance” was limited to a “ ‘drug or other substance' included in one of five federal schedules.” Id. at 801 (quoting 21 U.S.C. § 802(6)).
Immigration authorities sought to deport Mellouli based on his 2010 conviction under Kansas state law for possessing drug paraphernalia. Id. at 800. Under Kansas law, it was illegal to possess any drug paraphernalia used to store or conceal a “controlled substance.” Id. at 802 (citing KAN. STAT. ANN. § 21-5709(b)). The term “controlled substance” was defined with reference to Kansas' own schedules of drugs. Id. (citing KAN. STAT. ANN. § 21-5701(a)). As of the date of Mellouli's conviction-2010-the Kansas controlled substances schedules contained at least nine substances which were not controlled under the federal schedules. Id.
The Eighth Circuit denied Mellouli's petition for review of his deportation order. Id. at 804. The Supreme Court reversed. Id.
The Court explained that the catergorical approach is used in determining whether a state conviction provides grounds for alien removal under the immigration statute. Id. “Because Congress predicated deportation ‘on convictions, not conduct,” the court explained, “the approach looks to the statutory definition of the offense of conviction, not to the particulars of an alien's behavior.” Id. at 805 (citation omitted). Only if the state law definition of the crime of conviction “falls within a category of removable offenses defined by federal law” will the state law provide grounds for removal. Id.
The Court stated that the “categorical approach has been applied routinely to assess whether a state drug conviction triggers removal.” Id. at 806. Discussing a 1965 case, the Court explained an alien convicted of offering to sell a “narcotic drug” under California law did not complete a deportable offense because the California law controlled peyote, which was not listed as a controlled substance under federal law. Id. at 807-08 (discussing Matter of Paulus, 11 I. & N. Dec. 274, 275-76 (1965)). That was because, applying the categorical approach, it was possible that the conviction involved possession of peyote which would not have qualified as a federal drug crime. Id. at 808.
Applying the categorical approach to Mellouli's case, the Court held his Kansas conviction did not qualify as a deportable offense. Id. That was because Kansas law controlled nine substances that were not controlled under federal law. Id. The Court also rejected the Eighth Circuit's application of a special carve-out rule that had arisen in immigration courts for state court convictions for possession of drug paraphernalia. Id. at 809. The Court concluded that interpretation of the immigration removal statute “must be faithful to the text, which limits the meaning of ‘controlled substance' . . . to the substances controlled under [21 U.S.C.] § 802.” Id. at 813.
d. Eighth Circuit Case Law Prior to May 2018
Because Mathis is an Armed Career Criminal case and Mellouli was an immigration case, neither case satisfies the district court's requirement of a case directly on point-i.e. one applying the categorical approach to enhanced drug sentences under 21 U.S.C. § 851(a). Sorensen, 2021 WL 3733024, at *3-6. There must be such a case or the issue is deemed a novel one and counsel cannot be ineffective for raising the issue on Mr. Morales' behalf. Id.
In addition to Mathis and Mellouli, Mr. Morales cites to six Eighth Circuit cases in his post-remand brief in support of his assertion that the law provided that the categorical approach should be applied in the case of an § 851(a) information: United States v. Brown, 598 F.3d 1013 (8th Cir. 2010); United States v. McMillan, 863 F.3d 1053 (8th Cir. 2017); Martinez v. Sessions, 893 F.3d 1067 (8th Cir. 2018); United States v. Boleyn, 929 F.3d 932 (8th Cir. 2019); United States v. Vanoy, 957 F.3d 865 (8th Cir. 2020); and United States v. Oliver, 987 F.3d 794 (8th Cir. 2021). Docket No. 49 at pp. 9-10, 15-16, 18. Of these, only Brown and McMillan need be considered as these are the only two decisions that would have been issued and available for defense counsel to consider at the time of Mr. Morales' sentencing in May 2018.
The McMillan case is inapposite as that case involved the question whether a 2009 state court conviction in Minnesota for third-degree riot constituted a “crime of violence” under USSG § 2K2.1(a)(2). McMillan, 863 F.3d at 1055. That is not to say that the McMillan case is irrelevant to the ultimate question whether Mr. Morales' Kansas state conviction is a “felony drug crime” for purposes of enhancement under § 851(a)-the case has lessons to be gleaned about that analysis. But because McMillan does not involve the precise issue presented here-determination of whether a Kansas drug conviction like Mr. Morales' can be used for enhancement in a federal drug sentencing-the case is not a reference point for the standard of care required of Mr. Morales' defense counsel in May 2018 when Mr. Morales was sentenced.
Only the Brown case is of the right date (pre-May 2018) and involves the same factual context presented in Mr. Morales' case. Brown requires greater scrutiny.
The Brown case “presented] the question whether a prior conviction for delivery of a ‘simulated controlled substance' under Iowa law qualifies as a ‘felony drug offense' under a recidivism provision of the Controlled Substances Act.” Brown, 598 F.3d at 1013. Brown was charged in federal court with “distributing crack cocaine within 1,000 feet of a protected location, in violation of 21 U.S.C. § 860.” Id. at 1014. Prior to trial, the government filed a § 851(a) information indicating it would seek increased punishment upon conviction because Brown had three prior state court convictions in Iowa: two were for delivery of a simulated controlled substance and one was for delivery of cocaine. Id.
Iowa law defined delivery of a simulated controlled substance as “a substance which is not a controlled substance but which is expressly represented to be a controlled substance, or a substance which is not a controlled substance but which is impliedly represented to be a controlled substance and . . . would lead a reasonable person to believe it to be a controlled substance.” Id. (citing IOWA CODE § 204.101(27) (1991) (recodified at § 124.101(27) (2007) (ellipsis in original)).
The district court held the Iowa convictions did constitute “felony drug offenses” and sentenced Brown to a mandatory life imprisonment. Id. at 101415. Brown appealed that issue. Id. at 1015. The Eighth Circuit squarely addressed the question whether Brown's Iowa convictions constituted “felony drug offenses” under 21 U.S.C. §§ 802(44) and 841(b)(1)(A) for purposes of enhanced sentencing penalties. Id. at 1015.
The court focused its analysis on the language “relating to” in § 802(44). Id. (reciting the statute's language as “an offense . . . under any law of . . . a State . . . that prohibits or restricts conduct relating to narcotic drugs”) (emphasis supplied). The court concluded that Congress never intended the “relating to” language to reach the possession or trafficking in substances that were not actual controlled substances under federal law. Id. at 1016-17. First, the court noted that the federal schedule of controlled substances criminalizes only actual, not simulated or look-alike, controlled substances. Id. at 1016.
The history of § 851(a) also supported the court's interpretation because the enhanced penalty for recidivists originally applied only to those defendants who had a prior federal felony drug conviction. Id. Congress amended the enhanced penalty law in 1984 to allow enhancement for defendants who also had state court or foreign felony drug convictions. Id. at 1016-17. The court concluded the natural inference to draw from the 1984 amendment was that the expansion of the enhancement applied only to “state and foreign convictions of the type as those previously covered under federal law.” Id. at 1017.
The government urged the court to look to the actual facts underlying Brown's state court convictions which, the government argued, showed “Brown used funds obtained from the sale of a simulated controlled substance to facilitate trade in actual drugs.” Id. The court rejected this approach, noting that looking to the underlying facts of a particular defendant's state court conviction would result in that state court conviction “sometimes count[ing] toward the [federal] sentencing enhancement and sometimes not, depending on the facts of the [state court] case.” Id. The court noted that § 802(44) spoke in categorical terms: “an offense” stemming from “conduct relating to narcotic drugs.” Id.
The court's conclusion was that “Brown's convictions for delivering simulated controlled substances, in violation of Iowa [law] do not qualify as ‘felony drug offenses' within the meaning of 21 U.S.C. § 802(44).” Id. at 1018. The court held that Brown was not, therefore, subject to mandatory life imprisonment under § 841(b)(1)(A) and remanded for further proceedings. Id.
The Brown court never used the term “categorical approach” as such, but it is clear that the court was applying the analysis dictated by the categorical approach. The Brown court cited Taylor v. United States in support of its holding. Id. at 1017 (citing 495 U.S. at 601-02). The Taylor decision was, of course, pointed to by the Mathis Court as evidence that the categorical approach had been the law for at least 25 years, beginning with Taylor. Mathis, 579 U.S. at 508 (discussing Taylor, 495 U.S. at 601).
Also, the Brown court's holding is dictated by the categorical approach. As under the categorical approach, a state court conviction may not be used for enhancement of a federal drug crime if the state crime described is broader than the term “federal drug crime” as defined under the Controlled Substances Act. Cf. Mathis, 579 U.S. 509 (state burglary conviction cannot be a predicate offense under the ACCA if it covers a greater swath of conduct than the federal definition of burglary); Mellouli, 575 U.S. at 808, 813 (state court drug conviction cannot be a removable offense if it covers a greater swath of criminal drug behavior than that described by the federal Controlled Substance Act). The fact that the Iowa statute swept more broadly than the federal Controlled Substances Act was key to the Brown court's holding. Brown, 598 F.3d at 1016.
In addition, the categorical approach requires analysis of what the state statute criminalizes and forbids analyzing the issue based on the facts of a defendant's particular state court convictions. Mathis, 579 U.S. at 511 (noting that a sentencing court would run afoul of Apprendi if it embarked on factfinding with regard to a state court conviction for the purpose of increasing a defendant's penalty). The Brown court hewed to this tenet of the categorical approach also, refusing to consider the facts of Brown's Iowa convictions. Brown, 598 F.3d at 1017. In short, the Brown court cited to the categorical approach established in Taylor and it followed the dictates of the categorical approach in its analysis. Whether the Brown court used the term “categorical approach” or not, the court was applying that precedent to the context of a federal drug sentencing.
The dissent in Brown, while reaching the opposite conclusion about whether Brown's Iowa convictions constituted “felony drug offense[s],” nevertheless made explicit that the majority's citation of Taylor indicated that the categorical approach must be applied to the determination. Brown, 598 F.3d at 1019 (Shepherd, J., dissenting) (stating that “to determine whether [Brown's] prior offense[s] qualif[y] as . . . predicate offense[s] for the purpose of a sentence enhancement, federal courts apply a categorical approach”) (citing, inter alia, Taylor, 495 U.S. at 600) (alterations in original).
It was clear in May 2018 that the categorical approach should be applied any time a prior conviction was relied upon in federal court for applying an enhanced penalty against a defendant. In Taylor, the seminal case, the court applied the categorical approach to determine if a state conviction from Missouri could be used to enhance a federal defendant's sentence for unlawful possession of a firearm under 18 U.S.C. § 922(g). Taylor, 495 U.S. at 577-78. In Kawashima v. Holder, the Court applied the categorical approach to determine if petitioners' prior conviction for willfully making and subscribing a false income tax return had committed an “aggravated felony” subjecting them to deportation. 565 U.S. at 482-83. And in Brown, the court applied the rules of the categorical approach to determine whether a prior state court conviction in Iowa could be used to enhance a federal drug defendant's sentence pursuant to an § 851(a) information. Brown, 598 F.3d at 1016-18.
Nor was the Brown decision an outlier. Prior to Mr. Morales' May 2018 sentencing hearing, several other federal courts of appeals had applied the categorical approach in determining whether a federal drug defendant's sentence could be enhanced by a prior conviction. See, e.g. United States v. Ocampo-Estrada, 873 F.3d 661, 667-69 (9th Cir. 2017) (applying categorical approach to decide if a California conviction was a “felony drug offense”); United States v. Brown, 500 F.3d 48, 59 (1st Cir. 2007) (applying Taylor to determine “categorically” if a prior conviction constituted a “felony drug offense”); United States v. Nelson, 484 F.3d 257, 261 n.3 (4th Cir. 2007) (applying the modified categorical approach to determine whether a conviction under 18 U.S.C. § 924(c)(1) is a “felony drug offense”); United States v. Curry, 404 F.3d 316, 320 (5th Cir. 2005) (per curiam) (applying the modified categorical approach to determine if a prior conviction for possessing contraband in prison was a “felony drug offense”). The Seventh Circuit applied the categorical approach in the alternative (without deciding that that was the right analysis) to determine whether an Indiana conviction was a “felony drug offense.” Brock-Miller v. United States, 887 F.3d 298, 307 (7th Cir. Apr. 3, 2018).
Furthermore, a post-Brown decision by the Eighth Circuit (an ACCA case) cited Brown as an example of the application of the categorical approach to analyzing whether a state court conviction constituted a “felony drug offense.” See United States v. Ford, 888 F.3d 922, 930 (8th Cir. Apr. 25, 2018) (applying the modified categorical approach to Ford's Iowa convictions and acknowledging that the Brown opinion found the Iowa drug statute to be overbroad under the categorical approach). This opinion, too, was issued prior to Mr. Morales' May 2018 sentencing hearing and was thus available to defense counsel prior to that hearing.
The Eighth Circuit cases of Brown and Ford, as well as the cases from the First, Fourth, Fifth, Seventh, and Ninth circuits cited above show that prior to May 2018 appellate courts were understanding and applying the categorical/modified analysis to drug enhancements based on prior drug convictions. The court rejects the government's bald assertion that in May 2018 “no defense attorneys were making the arguments that [Mr. Morales] now makes because no courts had decided these questions.” Docket No. 55 at p. 6.
The government also argues that Brown did not alert defense lawyers to make the categorical argument because “Brown was far afield from where the categorical approach has since taken litigants and courts who much later began debating” the issue. Id. at p. 8. This assertion overlooks the Brown court's reliance on Taylor for its analysis and conclusion as well as the fact that the dissent made explicit what was implicit in the majority opinion: that the categorical analysis was being applied to resolve the question.
The government also suggests that the Eighth Circuit itself, in Stewart v. United States, held that the first time it applied the categorical approach to evaluate a conviction in an § 851(a) conviction was in 2019. Docket No. 55 at p. 9 (citing Stewart, No. 21-2791, 2022 WL 3135296, at *2 (8th Cir. Aug. 5, 2022) (per curiam) (unpublished)). However, the Stewart court never stated that its 2019 decision in United States v. Boleyn, 929 F.3d 932, 936 (8th Cir. 2019), was the first time the court had applied the categorical approach to the enhancement of a drug sentence. 2022 WL 3135296, at *2 (stating that “[m]ore than one year after Stewart's sentencing, we held that the categorical approach should be used to determine whether a statute qualifies as a predicate conviction under certain federal sentencing enhancement schemes, including the Controlled Substances Act”). Furthermore, the Stewart decision is an unpublished decision and it did not acknowledge or discuss the Brown decision.
What is necessary for Mr. Morales to clear the first hurdle of showing ineffective assistance of counsel is a decision from either the Eighth Circuit or the Supreme Court applying the categorical approach to the federal drug recidivist statute and concluding that state court convictions under state statutory schemes that criminalize drug conduct not criminalized under federal law do not qualify as “felony drug offense[s]” for purposes of §§ 851(a) and 841(b)(1)(A). The decision must have been published prior to Mr. Morales' sentencing. Brown fulfils both the context and timing requirements.
This court notes that the district court held in Sorensen that no Eighth Circuit or Supreme Court case existed extending the categorical approach to the analysis of the federal drug recidivist statute. Sorensen, 2021 WL 3733024, at *4-5. But the Sorensen court did not identify or discuss the Brown decision. Id. The Ford decision was decided after Sorensen's sentencing, but before Mr. Morales' sentencing; therefore, the Ford decision was not something that Sorensen's counsel could have considered with regard to Sorensen's own § 851(a) information. For both of these reasons, Sorensen does not preclude this court's conclusion that Brown establishes sufficient legal precedent so as to have rendered defense counsel's failure to raise the categorical argument on Mr. Morales' behalf non-novel.
e. Application of the Categorical Approach to Mr. Morales' Case
That does not mean, necessarily, that Mr. Morales' defense counsel was ineffective for failing to argue that his Kansas conviction should not be used applying the categorical approach. Counsel is not ineffective for failing to raise a frivolous or losing issue. Rodriguez v. United States, 17 F.3d 225, 226 (8th Cir. 1994) (per curiam). This court must then turn to an analysis of whether such an argument, had it been raised, would have been colorable. This informs both the issue of whether counsel was deficient for failing to raise the issue and also the issue of prejudice. If the argument had no chance of success, Mr. Morales would be unable to show prejudice. If the argument was colorable and had some opportunity for success, then Mr. Morales was prejudiced by the failure to raise the claim at his sentencing.
i. Mr. Morales' Argument
At the time of Mr. Morales' sentencing on May 18, 2018, sections 841(b)(1)(A) and 851 of Title 21 increased the penalty for a current drug felony if the defendant had a prior conviction for a “felony drug offense.” See 21 U.S.C. §§ 841(b)(1)(A) and 851 (2018). A “felony drug offense” pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 802(44) is a conviction that “is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44) (2018).
The First Step Act of 2018 (“FSA”), Pub. L. No. 115-391, § 401, 132 Stat. 5194, 5220-21 (Dec. 21, 2018), changed the language of 21 U.S.C. § 841(b)(1)(A) from “felony drug offense” to “serious drug felony.” Cases predating the FSA discuss the phrase “felony drug offense” while cases arising after passage of the FSA discuss “serious drug felony.” At the time Mr. Morales was sentenced on May 18, 2018, the operative term was “felony drug offense” under the old version of the statute.
Mr. Morales argues that, applying the categorical approach, the drugs made illegal under Kansas' controlled substances statutory scheme are more broad that the federal schedule of controlled substances because, for example, Kansas law at the time of his 2003 conviction criminalized at least three substances that are not and were not criminalized under the federal Controlled Substances Act: butyl nitrite, benzylfentanyl, and thenylfentanyl. Docket No. 49 at p. 10.
ii. The Kansas Statute Was Overbroad
Mr. Morales has supplied the court with the documents from his 2003 Kansas state court conviction and the applicable 2003 Kansas statutes. Mr. Morales entered a plea of “no contest” to count two, a violation of Kansas Statutes Annotated (K.S.A.) § 65-4162(a) (2003). See Docket Nos. 49-1 at pp. 5, 6 & 10. Section 65-4162(a), which Mr. Morales was convicted of, made it a crime to possess any depressant, stimulant, hallucinogenic drug, or any substance otherwise set forth in a separate schedule of substances that are controlled. Docket No. 49-2 at p. 1. The separate schedules of controlled substances are found at K.S.A. 2003 §§ 65-4105 through -4111. Docket Nos. 49-3, 49-4, 49-5 & 49-6. Marijuana is found at § 65-4105(d)(16)-within schedule I. Docket No. 49-3 at p. 5.
As the Supreme Court established three years prior to Mr. Morales' sentencing, the Kansas drug statutes set forth “at least nine substances not included in the federal” drug schedules. Mellouli, 575 U.S. at 802. The government in this matter does not take issue with this finding by the Mellouli Court nor does the government suggest that the 2003 version of Kansas' drug laws differed materially from the 2010 version of Kansas law examined by the Mellouli Court. Docket Nos. 52 & 55. The government does not dispute Mr. Morales' assertion that in 2003, the Kansas drug schedules included at least three substances that were not criminalized under federal law. Id. This magistrate judge concludes that Mr. Morales has successfully shown that Kansas drug laws were overbroad as compared to the federal Controlled Substances Act. Under the categorical approach, then, Mr. Morales' 2003 Kansas conviction should not have been used to enhance his federal sentence unless the modified categorical approach applies.
iii. The Kansas Statute is Divisible
To reiterate, if a statute is indivisible, the categorical approach applies; if the statute is divisible, the modified catetegorical approach can be applied. Mathis, 579 U.S. at 505. But the modified categorical approach is only applicable where a statute contains an alternative list of elements. Id. at 50506. It cannot be applied to a statute that lists alternative means. Id. Courts begin the process of determining if a statute is divisible by examining the statute's text and structure. Vanoy, 957 F.3d at 868.
Comparing the Kansas statute to the federal statute, the Kansas statute is more detailed in terms of specifying drugs. While the federal statute merely makes it a crime to distribute (in Mr. Morales' case) a “controlled substance,” the Kansas statute he was convicted of makes it a crime to possess “any depressant,” “any stimulant,” “any hallucinogenic drug,” “any substance designated in subsection (g) of K.S.A. 65-4105,” or “any anabolic steroid.” Compare 21 U.S.C. § 841(a) (2003), with K.S.A. 2003 § 65-4162. While the federal statute does not lend itself to a conclusion of divisibility, the Kansas statute by virtue of its list of categories of drugs does.
Mr. Morales argues that the Kansas statute is indivisible because it contains a list of alternative means of violating the statute, not an alternative list of elements. Docket No. 49 at pp. 15-20. Mr. Morales points out that K.S.A. 2003 § 65-4162(a) merely sets forth different categories of drugs, the possession of which results in violation of the statute, but that the penalty for possession of any of the drugs is the same. Docket No. 49 at p. 16. Where a statute clearly sets forth different drug types and quantities which carry differing penalties, the statute is divisible. Vanoy, 957 F.3d at 868. But where a statute contains several parts all having the same penalty, the Eighth Circuit has found this structure is not determinative of the issue whether a statute is divisible. McMillan, 863 F.3d at 1057 (8th Cir. 2017) (the fact that a statute prescribes uniform punishment for all alternatives “does not provide helpful guidance.”).
If the text and structure of a statute do not clearly indicate whether it is divisible, a court should consult other state statutes and state cases. Mathis, 579 U.S. at 517-18. Mr. Morales states he has been unable to find any Kansas state cases directly addressing whether the different drug types listed in § 65-4162(a) are elements of the offense or alternative means of committing the offense. Docket No. 49 at p. 16. He does point to analogous cases.
In State v. Thompson, 200 P.3d 22, 25-26 (Kan. 2009), the Kansas Supreme Court interpreted K.S.A. § 65-7006(a). That statute made it unlawful to “possess ephedrine, pseudoephedrine, red phosphorus, lithium metal, sodium metal, iodine, anhydrous ammonia, pressurized ammonia or phenylpropanolamine, or their salts, isomers or salts of isomers with the intent to use the product to manufacture a controlled substance.” Id. at 27. Thompson was accused of possessing two of the prohibited items on this list, and the state charged him with two counts of violating the statute. Id. The court held, applying the rule of lenity, that charging Thompson with two counts was multiplicitous as the possession was part of a “single impulse” and a “unitary intent” to conduct one drug manufacturing process. Id. at 30.
The state had made an analogous argument with reference to § 65-4160(a), stating it was obvious that a defendant who possessed heroin, cocaine and methamphetamine could clearly be prosecuted for the possession of each drug, not just one count. Id. The court did not definitively answer this hypothetical question, but stated that “ordinarily” the possession of “heroin would be prompted by a separate impulse from possession of cocaine or possession of methamphetamine.” Id. “As such, under K.S.A. 2007 Supp. 65-4160(a), it is very likely a double jeopardy analysis would end with a determination the conduct was not unitary.” Id. In other words, the court stated in dicta that a defendant could likely be prosecuted in multiple charges for possession of multiple substances under § 65-4160(a) if the possession of each separately-charged substance stemmed from a different impulse or purpose.
In an unpublished decision from the Court of Appeals of Kansas, the court reviewed for clear error whether a jury instruction was erroneous because it failed to name the controlled substance. State v. Stotts, No. 101,828, 2011 WL 6382737, at *8-9 (Kan Ct. App. Dec. 16, 2011) (unpublished). There, Stotts had been charged with possession of drug paraphernalia under a statute that made it a crime to “possess with intent to use . . . any drug paraphernalia to use, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance.” Id. at *8. The trial court's jury instruction instructed the jury that it could find Stotts guilty if it found he “knowingly possessed with the intent to use drug paraphernalia to introduce a controlled substance into the human body.” Id. at *9. Stotts maintained the instruction should have specified that the glass pipe found in his vehicle was used for marijuana and that the generic use of the term “controlled substance” rendered the instruction erroneous. Id. at *8.
Clear error review applied because Stotts had failed to lodge any objection to the jury instruction contemporaneously.
The court noted that the instruction mirrored the statutory language and noted when instructions do so, they are generally acceptable, adding that “it can't be said that identifying the substance as marijuana was an essential element of the crime.” Id. at *9. In any case, the court went on to note that the prosecutor made clear in its closing argument that the substance the pipe was used in conjunction with was marijuana, so there was no clear error. Id. at *10.
Another unpublished opinion from the Court of Appeals of Kansas is instructive. In State v. Housworth, the defendant faced three charges for his simultaneous possession of oxymorphone, morphine, and oxycodone, all grouped under the category of “opiates” in the Kansas drug schedules. No. 115,836, 2017 WL 2834502, at *13 (Kan.Ct.App. Apr. 27, 2018) (unpublished). Housworth argued this was multiplicitous and that he should have been charged with a single offense. Id.
The court applied a two-step analysis that asked first, whether the possession of all three substances stemmed from a unitary impulse and the court agreed that because Housworth possessed the drugs all at the same time in the same place, that there was a unitary impulse. Id.
The second step the court considered was determining whether the legislature intended to permit multiple charges under the statute or only a single unit of prosecution. Id. at *14. The statute Housworth was prosecuted under was similar to the one Mr. Morales was prosecuted under: it “include[d] seven subsections of different kinds of controlled substances that are illegal to possess . . . including opiates, depressants, stimulants, hallucinogens, and anabolic steroids.” Id. (citing K.S.A. 2016 Supp. § 21-5705(a)(1)-(7)). The court held that if a defendant were charged with violating different subsections (i.e. opiates and hallucinogens) he could permissibly be charged with separate offenses under the statute. Id. However, the court went on to conclude that, because the statute prohibited the possession with intent to distribute “any of the following controlled substances,” that Housworth could be prosecuted separately for each type of opiate he possessed. Id. (emphasis added).
The case of State v. Graham, No. 83,214, 2000 WL 36746390 (Kan.Ct.App. July 14, 2000) (unpublished) is in a similar vein to Housworth. In that case, Graham was charged with three counts of violating a statute that made it unlawful for any person to possess opiates, opium or narcotic drugs, or any stimulant listed in the Kansas schedule II of controlled substances. Id. at *1 (citing K.S.A. 1999 Supp. § 65-4160); see K.S.A. 1999 § 65-4107. Graham argued that because he possessed cocaine, amphetamine and methamphetamine simultaneously, he should have faced only one count. Id. The court held the statute permitted the three separate charges because “the legislature intended to treat different controlled substances as separate offenses.” Id. “[E]ach drug represents a separate violation of the statute.” Id. at *2.
In addition to the above, Kansas courts have approved of the model Kansas jury instruction for possession of a controlled substance which indicates the name of the particular controlled substance is to be included in the instruction. See, e.g. State v. Berberich, 811 P.2d 1192, 1194 (Kan. 1991); (approving the trial court's jury instruction for possession of a controlled substance under K.S.A. § 65-4127b(a)(2) where that instruction specified the substance defendant possessed was methamphetamine); State v. Lundquist, 55 P.3d 928, 931-32 (Kan.Ct.App. 2002) (approving jury instruction for possession of marijuana that included a specific assertion that the jury must find the defendant possessed marijuana by name).
Abrogated on other grounds, State v. Hensley, 313 F.3d 814 (Kan. 2013). The Hensley decision abrogated the Berberich court's holding that a defendant could be convicted of both possession of methamphetamine and failure to have a tax stamp for the methamphetamine. Hensley, 313 P.3d at 826.
In State v. Rizal, 445 P.3d 734, 736, 740-41 (Kan. 2019), the defendant was convicted of possessing with the intent to distribute synthetic marijuana, which was a controlled substance under Kansas law. She argued that she believed she possessed incense (a lawful substance), so her conviction should be overturned. Id. at 736. The court held the state crime of possession of a controlled substance with intent to distribute requires the state to show “that the defendant possessed-meaning knowingly exercised control-over any controlled substance with the intent to distribute it.” Id. at 740. The court further established that “knowingly” meant the state had to show the person knew the essence of the substance she possessed. Id. at 741. This requires showing the defendant “either knew the identity of the substance or knew that the substance was controlled.” Id. The Rizal decision would seem to support the conclusion that the Kansas drug statutes are divisible as it is implicit in its statement that the prosecution is required to prove a specific substance at trial, not just a generic “controlled substance.”
This court has searched for and not been able to identify any federal cases analyzing whether K.S.A. § 65-4162(a) in particular is divisible. There are federal cases evaluating Kansas convictions to determine if they are “felony drug convictions” under § 841(b)(1)(A), but none of those decisions involve application of the modified categorical approach or any investigation into the divisibility of the Kansas statute(s). It may be unlikely that any decision will ever emerge addressing K.S.A. § 65-4162 specifically. In 2009, Kansas overhauled its drug laws and repealed §§ 65-4158 through 65-4166, replacing them in Title 21 of the Kansas Statutes Annotated. According to the disposition table found where § 65-4162 used to appear, K.S.A. § 21-5706 is the newly enacted corollary to the former § 65-4162.
There are cases accepting a Kansas state court drug conviction as a “felony drug conviction” sufficient to increase the penalty under § 851(a), but none of those cases contain any discussion as to whether the Kansas drug statutes are divisible. See, e.g. United States v. Robinson, 462 F.3d 824, 826 (8th Cir. 2006); United States v. Trevino-Rodriguez, 994 F.2d 533, 536 (8th Cir. 1993) (defendant's prior Kansas drug stamp violation constituted a “felony drug offense” for purposes of enhancement pursuant to 21 U.S.C. § 851(a)); United States v. Dyke, 718 F.3d 1282, 1292-93 (10th Cir. 2013) (holding Kansas state court conviction for conspiring to sell cocaine could be used to enhance defendant's federal drug sentence pursuant to § 841(b)(1)(A)); United States v. Huskey, 502 F.3d 1196, 1198-99 (10th Cir. 2007) (holding there was no plain error in the district court's use of a Kansas conviction for attempted cocaine possession to enhance defendant's federal sentence under § 851(a)) (no discussion of whether the Kansas statute was divisible). The Eighth Circuit rejected the use of a Kansas state court conviction under § 851(a) in United States v. Haltiwanger, 637 F.3d 881, 883-84 (8th Cir. 2011), but the rejection was based on the court's conclusion that the defendant's crime was a misdemeanor, not a felony-the court's decision did not discuss divisibility.
An Eighth Circuit case, Rincon v. Garland engaged in the categorical/modified categorical analysis as to that newly enacted corollary, and found that § 21-5706(a) is divisible. See generally 70 F.4th 1080 (8th Cir. 2023). In Rincon, an immigration case similar to Mellouli, the Eighth Circuit found the Thompson analysis determinative as to whether § 21-5706(a) was divisible. See id. at 1082, 1084-85. The statute at issue-very much like the statute in Mr. Morales' Kansas conviction-prohibited the possession of “any opiates, opium or narcotic drugs, or any stimulant designated [in another statute] or a controlled substance analog thereof.” Id. (quoting KAN. STAT. ANN. § 21-5706(a)). Relying on Thompson, as well as Kansas' approved jury instructions (which required that the name of the specific drug be inserted into the required elements of proof), the Eighth Circuit held the Kansas statute was divisible because the specific drug type a defendant possesses is an element of the offense, not just a means of committing the offense. Id. at 1084-85.
The court also conveyed an understanding that § 21-5706(b) is divisible. See 70 F.4th at 1085 (citations omitted).
None of these cases is direct authority because none are interpreting Mr. Morales' statute of conviction: § 65-4162. The statements in Thompson are dicta and the Stotts, Housworth, and Graham opinions are unpublished, intermediate appellate court opinions (which also did not construe § 65-4162). The Berberich and Lundquist opinions merely approve jury instructions containing specific mention of a named controlled substance, but the cases do not hold that such specification is necessary to appropriately state the element of the offense of possession of a controlled substance. Rizal comes the closest to being on point and leans in the direction of finding K.S.A. § 65-4162(a) to be divisible. Both the Thompson court and the Rincon court reached that same conclusion that the very-similar Kansas statutes at issue in both cases were divisible. It appears the Kansas courts would interpret § 65-4162 as a divisible statute with each drug possessed by a defendant constituting a separate crime. Each drug represents a separate element, not a “mere means” of violating the statute. Rincon, 70 F.4th at 1086.
The statements in Thompson were dicta as to the statute involved in Rincon too, but the Rincon court accepted the statements from Thompson as though they were binding Kansas precedent.
Having determined that state law construes (or would likely construe) the statute of Mr. Morales' conviction as divisible, the court may examine a “limited class of documents” including the charging document in the defendant's underlying state court case in order to determine if Mr. Morales' Kansas conviction involved a substance listed on the federal drug schedules. Mathis, 579 U.S. at 505, 518-19; Vanoy, 957 F.3d at 867-68; United States v. Maldonado, 864 F.3d 893, 898 (8th Cir. 2017). Because the charging document can be expected to contain every element a “prosecutor must prove to a jury beyond a reasonable doubt,” it may be helpful to make the means-vs.-elements distinction. Mathis, 579 U.S. at 518-19. It is important to determine if the charging document uses “a single umbrella term” like “controlled substance,” or whether the charging document specifies a particular way in which the statute was violated. Id. at 519.
Here, Mr. Morales' charging document was a complaint/information that specified that “Morales did then and there unlawfully, intentionally possess a controlled substance, to wit: marijuana.” Docket No. 49-1 at p. 2. His written plea states he was pleading to “possession of marijuana after prior conviction”-the term “controlled substance” was not used at all to describe the crime to which Mr. Morales was pleading. Id. at p. 6. The journal entry of judgment entered in his Kansas case recited the offense of conviction as “possession of marijuana after prior conviction.” Id. at p. 10. Again, the crime was not described as possession of a “controlled substance.”
iv. Mr. Morales' Conviction is a “Felony Drug Offense”
The court concludes that, based on Kansas state law, the statute Mr. Morales was convicted of in November 2003 was a divisible statute. Applying the modified categorical approach, the court further finds that based on the charging document, the written plea, and the journal entry of judgment, Mr. Morales was convicted of possession of marijuana, which is a separate crime from possession of other drugs in the Kansas drug schedules such as butyl nitrite, benzylfentanyl, and thenylfentanyl, as well as others. As such, the crime Mr. Morales was convicted of in Kansas state court in November 2003 fits the federal definition of “felony drug crime” because the federal schedules of controlled substances also control the drug marijuana. See 21 U.S.C. § 812, Schedule I(c)(10). Finally, because this is the court's conclusion, the court finds that defense counsel at Mr. Morales' trial was not ineffective for failing to raise this issue nor was Mr. Morales prejudiced. Had counsel objected to the government's § 851(a) information on the basis of the categorical approach, the sentencing court would have nevertheless found that information to be well-founded and would have enhanced Mr. Morales' sentence.
This court's conclusion is at odds with the decision in Mellouli construing the Kansas drug paraphernalia statute. The Mellouli Court never discussed whether the modified categorical approach should apply in that case nor did the Court explore any Kansas state court cases that might have shed light on whether the statute was divisible or indivisible. As the Court explained in a footnote, it declined to express any opinion as to whether the modified categorical approach should be employed regarding the Kansas conviction because the government did not argue for the application of the modified categorical approach. Mellouli, 575 U.S. at 805 n.4.
The government's decision not to raise the issue of application of the modified categorical approach was for good reason: “the only documents reflecting [Mellouli's] Kansas conviction that [could have been] considered in applying the modified categorical approach did not identify a particular controlled substance.” Mellouli v. Holder, 719 F.3d 995, 999 (8th Cir. 2013), overruled by Mellouli, 575 U.S. 798. In other words, if the Mellouli Court had read and considered the same Kansas cases discussed herein, and if the Court had concluded the Kansas drug paraphernalia statute was divisible, the next step would have been for the Court to examine the “limited class of documents” (indictment, plea agreement, jury instructions) to determine under which subdivision of the statute the defendant was actually convicted. Mathis, 579 U.S. at 505, 518-19.
We know from the Eighth Circuit's recitation of the facts that an examination of the limited class of documents in Mellouli's Kansas state case would have been unavailing: they did not identify which substance Mellouli was charged with in connection with his drug paraphernalia possession. Mellouli, 719 F.3d at 996. This would have dictated the result that the Supreme Court ultimately reached-that the Kansas statute was overbroad and, whether the statute was divisible or not, there was no way to tell what substance Mellouli had been charged with. Under those circumstances, the Kansas conviction could not be used to remove Mellouli, whether the categorical approach was used or the modified categorical approach was used. It was just as likely that Mellouli had been convicted of a substance not criminalized under federal law as that he had been so convicted. A similar set of facts led to the same result in United States v. Oliver, 987 F.3d 794, 806-08 (8th Cir. 2021) (wherein the court found an Illinois drug statue to be overbroad but divisible, and held that Oliver's Illinois drug conviction could nevertheless not be used to enhance his sentence under § 851(a) because the underlying state court documents related to the Illinois conviction did not reveal which particular substance Oliver had been convicted of).
Here, Mr. Morales' circumstances are far different. The state court cases point toward, though they do not strictly dictate, a finding that the statute he was convicted under was divisible. The application of the modified categorical approach clearly shows the substance that Mr. Morales was charged with was marijuana. And though the Kansas drug scheme is overbroad, the actual substance Mr. Morales was convicted of possessing (marijuana) is criminalized by both Kansas and federal law. This justifies a different outcome in this case as opposed to the outcome in the Mellouli case.
CONCLUSION
Based on the foregoing facts, law and analysis, this magistrate judge respectfully recommends that Mr. Morales' renewed motion to vacate, correct, or set aside his sentence be denied [Docket No. 48], that his original motion be denied [Docket No. 1], and that judgment be entered on behalf of the government.
NOTICE TO PARTIES
The parties have fourteen (14) days after service of this report and recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1), unless an extension of time for good cause is obtained. Failure to file timely objections will result in the waiver of the right to appeal questions of fact. Objections must be timely and specific in order to require de novo review by the district court. Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir. 1986).