                                                                 FILED BY CLERK
                           IN THE COURT OF APPEALS                   FEB 13 2009
                               STATE OF ARIZONA                      COURT OF APPEALS
                                 DIVISION TWO                          DIVISION TWO


THE STATE OF ARIZONA,                        )
                                             )
                              Appellee,      )     2 CA-CR 2006-0347
                                             )     DEPARTMENT B
                   v.                        )
                                             )     OPINION
ANSON RYDELL NORRIS,                         )
                                             )
                              Appellant.     )
                                             )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                              Cause No. CR-20054495

                          Honorable Howard Hantman, Judge

                        VACATED IN PART AND REMANDED


Terry Goddard, Arizona Attorney General
 By Kent E. Cattani and Aaron J. Moskowitz                                Phoenix
                                                            Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender
 By Stephan J. McCaffery                                                    Tucson
                                                            Attorneys for Appellant


E C K E R S T R O M, Presiding Judge.
¶1            Following a jury trial, appellant Anson Norris was convicted of second-degree

burglary, a class three felony. After determining Norris had a prior felony conviction, the

trial court enhanced his sentence under former A.R.S. § 13-604 1 and imposed a presumptive,

6.5-year prison term. See 2005 Ariz. Sess. Laws, ch. 188, § 1. Norris argued on appeal that

the trial court erred by finding his prior federal conviction qualified as a historical prior

conviction pursuant to § 13-604. We affirmed his sentence without reaching the merits of

his argument, consistent with State v. Song, 176 Ariz. 215, 860 P.2d 482 (1993). See State

v. Norris, No. 2 CA-CR 2006-0347, ¶¶ 5, 7-8 (memorandum decision filed Feb. 14, 2008).

The supreme court subsequently granted review of Norris’s case and remanded it to this court

for reconsideration in light of State v. Smith, 219 Ariz. 132, ¶¶ 20, 22, 194 P.3d 399, 403

(2008), which overruled Song and held a defendant is not precluded from claiming for the

first time on appeal that his prison sentence was improperly enhanced with a prior foreign

conviction. We now reach the merits of Norris’s original claim, vacate his sentence, and

remand his case for the reasons set forth below.

                          Factual and Procedural Background

¶2            The jury in this case found Norris guilty of the sole count with which he was

charged: burglary in the second degree, committed on October 25, 2005. For sentence-

enhancement purposes, the state alleged Norris previously had been convicted of “Possession


       1
        The sentencing provisions in Arizona’s criminal code were renumbered, effective
January 1, 2009. See 2008 Ariz. Sess. Laws, ch. 301, §§ 1-120. In this opinion, we refer to
the statute as numbered at the time Norris committed the present offense in October 2005.

                                             2
with intent to distribute Marijuana” in the United States District Court for the District of

Arizona. At a hearing to establish Norris’s prior conviction, the state introduced into

evidence certified copies of his federal indictment, plea agreement, and judgment of

conviction. The judgment provided, in relevant part:

                 THE COURT HAS ADJUDICATED THAT THE
                 DEFENDANT IS GUILTY OF THE FOLLOWING
                 OFFENSE(S): violating Title 21, USC § 841(a)(1) & (b)(1)(C),
                 Possession with Intent to Distribute Marijuana, a class C Felony
                 Offense, as charged in Count 4 of the . . . Indictment.

The indictment reflected that Norris committed the federal offense on October 25, 2000.2

The judgment indicated he entered a plea of guilty on August 2, 2002, and was sentenced

October 15, 2002.

¶3               At the hearing, the state elicited testimony from Norris’s federal probation

officer that the amount of marijuana Norris had possessed, according to the federal

indictment, was fifty to one hundred kilograms. When the state and Norris rested, the

following exchange occurred:

                         [THE STATE]: The State’s position is that the
                 defendant, during the trial, if the Court remembers, admitted that
                 the reason why[,] when he went outside and he tried to run[,] he
                 was afraid about his probation officer finding out. He admitted
                 that he had a prior felony, that the documents here, the certified
                 documents, clearly illustrate that he has this prior felony, which
                 is a historical prior, and would be the equivalent of a class 2
                 felony here in Superior Court, and it stands as a historical prior




       2
           We disagree with Norris that this date merely represents the date of his prior arrest.

                                                 3
              to [the] conviction that he was found guilty o[f] on July 20,
              2006.

                     THE COURT: Defense position?

                     [DEFENSE]: We’ll submit.

                    THE COURT: The Court finds the State has borne it[]s
              burden concerning there is one historical prior conviction.

¶4            The court then imposed the enhanced, presumptive sentence of 6.5 years, and

this appeal followed.

                                         Discussion

¶5            Norris now claims his enhanced sentence is illegal because the federal offense

of which he was convicted “does not encompass all of the elements of any Arizona felony

statute[].” Specifically, he argues the mens rea required for a conviction under 21 U.S.C.

§ 841(a)(1) would not necessarily support a conviction under state law. We review this

question of law de novo, State v. Crawford, 214 Ariz. 129, ¶ 6, 149 P.3d 753, 755 (2007),

and agree with Norris’s argument.

¶6            Section 13-604(B) provides an enhanced sentencing range for a class three

felony committed by a defendant who has “a historical prior felony conviction.” 2005 Ariz.

Sess. Laws, ch. 188, § 1. A foreign conviction is a historical prior felony conviction only if

the foreign offense would have constituted a felony if committed in Arizona. See 2005 Ariz.

Sess. Laws, ch. 188, § 1 (former § 13-604(N)); State v. Phillips, 139 Ariz. 327, 329-30, 678

P.2d 512, 514-15 (App. 1983) (conviction in Arizona district court may be historical prior


                                              4
felony conviction under § 13-604). When making this determination, a sentencing court

examines whether the foreign conviction entailed a finding by the former trier of fact, beyond

a reasonable doubt, of “every element that would be required to prove an enumerated

Arizona offense.” State v. Ault, 157 Ariz. 516, 521, 759 P.2d 1320, 1325 (1988). This

requires a court to “compar[e] the statutory elements of the foreign crime with those in the

relevant Arizona statute.” Crawford, 214 Ariz. 129, ¶ 7, 149 P.3d at 755. A sentencing court

may consider a foreign court’s documents “‘only to narrow the foreign conviction to a

particular subsection of the statute that served as the basis of the foreign conviction.’” Id.

¶ 11, quoting State v. Roque, 213 Ariz. 193, ¶ 88, 141 P.3d 368, 392 (2006) (emphasis

added); see also State v. Thompson, 186 Ariz. 529, 532, 924 P.2d 1048, 1051 (App. 1996).

A court may not, however, consider the factual nature of the offense underlying the

conviction. Crawford, 214 Ariz. 129, ¶¶ 7-9, 11, 149 P.3d at 755-56.3

¶7            As indicated by his federal judgment of conviction, Norris was convicted under

21 U.S.C. § 841(a)(1) and (b)(1)(C).4 In general, § 841(a) specifies unlawful conduct



       3
        This court has observed in dicta that pertinent jurisprudence preceding Crawford
appears to allow sentencing courts to consider “‘conclusive records made or used in
adjudicating guilt’” to ascertain the precise elements of a foreign conviction under a broad
statute. State v. Joyner, 215 Ariz. 134, ¶ 26, 158 P.3d 263, 272 (App. 2007), quoting
Shephard v. United States, 544 U.S. 13, 21 (2005). But the state offered no such materials
here nor has it suggested it was entitled to do so. We therefore need not address what types
of records, if any, beyond those specifically itemized in Crawford, a court may appropriately
consider for that purpose.
       4
       The version of the statute in effect at the time Norris committed the offense is the
same in relevant part and can be found in 114 Stat. 9, 10, 13.

                                              5
involving controlled substances while § 841(b)(1) provides various maximum sentencing

ranges based upon the type and quantity of drug. United States v. Toliver, 351 F.3d 423, 426

n.1 (9th Cir. 2003). Section 841(a)(1) is a broad, disjunctive provision making it unlawful

for a person knowingly “to manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance.” A “controlled substance” is

any drug or substance listed on the schedules I through V. Drug Abuse Prevention and

Control Act, Pub. L. No. 106-172, § 3(c), 5(a), 114 Stat. 9, 10 (current version at 21 U.S.C.

§ 802(6)); see also Drug Abuse Prevention and Control Act, Pub. L. No. 98-473, Title II,

§§ 508, 509(a), 98 Stat. 2071, 2072, Pub. L. No. 101-647, Title XIX, § 1902(a), 104 Stat.

4851 (allowing amendment to drug schedules by Attorney General) (current versions at 21

U.S.C. §§ 811, 812(a)-(b)); 21 C.F.R. §§ 1308.11-1308.15 (current code listing amended

drug schedules). Norris’s judgment of conviction, which expressly incorporates count four

of his indictment, narrows the statutory basis of his conviction to 21 U.S.C. §§ 802(16) and

812(c)—specifically, schedule I(c)(10)—and establishes that his drug offense involved

marijuana. See Thompson, 186 Ariz. at 532, 924 P.2d at 1051.

¶8            But the mens rea of the federal statute differs from that required to convict a

defendant for a parallel crime in Arizona. Under § 841(a)(1), the government may secure a

conviction for possession with intent to distribute by proving the defendant knowingly

possessed any controlled substance; knowledge of the particular type of drug is not required.

United States v. Carranza, 289 F.3d 634, 644 (9th Cir. 2002); United States v. Lopez-



                                             6
Martinez, 725 F.2d 471, 471, 474 (9th Cir. 1984). By contrast, under Arizona law, the state

must prove the defendant knew the drug to be marijuana in order to convict the defendant of

a marijuana-related offense.

¶9            Section 13-3405, A.R.S., provides:

                     A. A person shall not knowingly:

                     1. Possess or use marijuana.

                     2. Possess marijuana for sale.

                     3. Produce marijuana.

                      4. Transport for sale, import into this state or offer to
              transport for sale or import into this state, sell, transfer or offer
              to sell or transfer marijuana.

1996 Ariz. Sess. Laws, ch. 217, § 1. The plain language of § 13-3405 indicates the culpable

mental state of “knowingly” applies to each element of the listed offenses. See A.R.S. § 13-

202(A). Hence, the state cannot secure a conviction under § 13-3405 without proving the

defendant knew the drug involved to be marijuana. See State v. Fierro, 546 Ariz. Adv. Rep.

3, ¶ 5 (Ct. App. Dec. 22, 2008) (proof of knowledge that drug was marijuana required for

conviction of transporting marijuana under § 13-3405(A)(4)). Although this court has

previously held such knowledge may be proven by circumstantial evidence and, in the

context of A.R.S. § 13-3408(A), may be proven by evidence that a defendant took actions

to avoid learning the type of drug involved, see State v. Diaz, 166 Ariz. 442, 445, 803 P.2d

435, 438 (App. 1990), vacated in part on other grounds, 168 Ariz. 363, 813 P.2d 728 (1991),



                                               7
our jurisprudence has never relieved the state of the burden of proving the culpable mental

state set forth in § 13-3405(A)(4). See Fierro, 546 Ariz. Adv. Rep. 3, ¶¶ 6-9.

¶10           In sum, to secure Norris’s conviction under 21 U.S.C. § 841(a)(1), the

government was not required to demonstrate that Norris knew that the substance he

unlawfully possessed was marijuana.          But under § 13-3405(A), Arizona’s statute

criminalizing marijuana-related offenses, proof of such knowledge is required. Because the

elements of the federal statute therefore did not include every element necessary to constitute

an enumerated crime under the Arizona statute, the trial court erred when it concluded Norris

had a historical prior felony conviction for purposes of sentence enhancement under

§ 13-604(B). See Crawford, 214 Ariz. 129, ¶ 7, 149 P.3d at 755.5

¶11           The sentence is vacated and Norris’s case remanded for resentencing in

accordance with this opinion.




                                                ____________________________________
                                                PETER J. ECKERSTROM, Presiding Judge




       5
         We recognize that we would likely reach a different result if, under our jurisprudence,
trial courts were entitled to consider the facts underlying the foreign conviction when
assessing whether that conviction necessarily would constitute a felony under Arizona law.
Indeed, nothing in the documentation of Norris’s federal conviction suggests Norris
maintained he was unaware that he possessed marijuana. But, as discussed, because our
settled jurisprudence requires that we exclusively focus on the elements of the respective
foreign and Arizona offenses, without regard to the specific facts underlying the foreign
conviction, we must come to the arguably counterintuitive result here.

                                               8
CONCURRING:




____________________________________
J. WILLIAM BRAMMER, JR., Judge




____________________________________
GARYE L. VÁSQUEZ, Judge




                                   9
