Modified Categorical Approach Applies to California Drug Statute

U.S. v. Rogers, 2017 WL 2557130 (6/13/17) (Okl.) (unpub'd) - A bad Mathis/controlled-substances-offense decision. Following a 9th Circuit case, the 10th holds California's drug statute, Cal. Health & Safety Code § 11378, is divisible by the type of controlled substance. California law treats the type of controlled substance as a separate element, the 10th says. So a sentencing court would use the modified categorical approach to decide what type of controlled substance the defendant was accused of distributing. In this case, the defendant's methamphetamine offense was a "controlled substance offense" under the career-offender guidelines because methamphetamine is illegal under the federal Controlled Substances Act. If the statute was not divisible, then the fact that California criminalizes some drugs that the feds don't would doom any claim that a California drug offense was a career-offender predicate.