                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 15-50471
                 Plaintiff-Appellee,
                                                     D.C. No.
                      v.                           3:12-cr-3850-
                                                      JAH-2
 LUIS OCAMPO-ESTRADA, AKA Luis
 Enrique Ocampo,
              Defendant-Appellant.                   OPINION


        Appeal from the United States District Court
           for the Southern District of California
         John A. Houston, District Judge Presiding

             Argued and Submitted April 4, 2017
                    Pasadena, California

                     Filed August 29, 2017

        Before: David M. Ebel,* Milan D. Smith, Jr.,
           and N. Randy Smith, Circuit Judges.

                     Opinion by Judge Ebel




    *
      The Honorable David M. Ebel, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2            UNITED STATES V. OCAMPO-ESTRADA

                          SUMMARY **


                          Criminal Law

    The panel affirmed a conviction for conspiracy to
distribute methamphetamine, vacated the sentence, and
remanded for resentencing.

    The panel held that the district court did not abuse its
discretion in denying the defendant’s requested theory-of-
defense jury instruction on the buyer-seller exception to
conspiracy liability.

    The panel held that California Health & Safety Code
§ 11378 is a divisible statute that is susceptible to the
modified categorical approach. The panel held that using the
modified categorical approach, the government failed to
demonstrate that the defendant’s § 11378 conviction was
based on a guilty plea to a controlled-substance element that
is included within the “felony drug offense” definition set
forth in 21 U.S.C. § 802(44). The panel therefore concluded
that the defendant’s prior conviction does not qualify as a
felony drug offense that would enhance his statutory
mandatory minimum sentence under 21 U.S.C.
§ 841(b)(1)(A).




    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
           UNITED STATES V. OCAMPO-ESTRADA                   3

                         COUNSEL

Devin Burstein (argued), Warren & Burstein, San Diego,
California, for Defendant-Appellant.

Daniel Earl Zipp (argued), Assistant United States Attorney;
Helen H. Hong, Chief, Appellate Section; Criminal
Division, United States Attorney’s Office, San Diego,
California; for Plaintiff-Appellee.


                         OPINION

EBEL, Circuit Judge:

    Defendant Luis Ocampo-Estrada (Ocampo) was
convicted of conspiracy to distribute methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1) and 846. The district
court then determined that Ocampo had previously been
convicted of a state offense, which qualified as a “felony
drug offense” under 21 U.S.C. § 841(b)(1)(A), thereby
triggering a twenty-year mandatory minimum sentence. The
predicate offense was California Health & Safety Code
section 11378, which prohibits the possession of certain
controlled substances for sale.

    Ocampo appeals both his federal conviction and
sentence. Because the district court did not abuse its
discretion in denying Ocampo’s requested jury instruction,
his conviction is AFFIRMED. The sentence however does
not survive. We hold that California Health & Safety Code
section 11378 is a divisible statute that is susceptible to the
modified categorical approach.         However, using the
modified categorical approach, the government failed to
prove that Ocampo had pleaded guilty to violating a
4         UNITED STATES V. OCAMPO-ESTRADA

controlled-substance element under section 11378 that is
encompassed by the federal definition for “felony drug
offense,” 21 U.S.C. § 802(44). Accordingly, his sentence is
VACATED and the matter is REMANDED to the district
court for resentencing.

                   I. BACKGROUND

    For almost a year, Ocampo would regularly supply
methamphetamine to Norman Nooris who, in turn, would
distribute it to buyers. Homeland Security Investigations
(HSI) first observed this supplier-dealer relationship on
October 18, 2011, when Nooris told undercover agents he
needed to “reload his supply.” ER 351. A short time later,
Ocampo arrived driving a black SUV and handed Nooris
some methamphetamine, which Nooris then sold to the
undercover agents.

   On October 25, 2011, the same agents arranged for
another drug purchase from Nooris. Nooris asked Ocampo
to “front[]” him the methamphetamine, i.e., to require
payment only after the sale was complete. ER 148–49.
Ocampo agreed to front Nooris the drugs, drove him to the
parking lot where the sale was to take place, and then he
waited in the car while Nooris sold an ounce of
methamphetamine to the undercover agents. After the sale
was completed, Nooris rejoined Ocampo in the car, and the
two drove off.

    After these two arranged purchases, HSI officers
obtained authorization to monitor cell-phone conversations
between Nooris and Ocampo. On December 6, 2011, Nooris
told Ocampo that Nooris had customers waiting and asked
when Ocampo would have the drugs. Ocampo updated him
on the forthcoming supply, explaining it would be available
           UNITED STATES V. OCAMPO-ESTRADA                 5

in a few hours after his courier delivered it from across the
Mexican border.

   The next day, Ocampo informed Nooris that he had “two
bomb ones” available, ER 119, and Nooris asked again if
Ocampo could front him the drugs. Ocampo agreed and
provided the methamphetamine on credit. Later that day,
Nooris called to give Ocampo an update on the sale,
explaining that his customer “only wanted a half.” ER 129.

    A few weeks later, agents intercepted another series of
calls in which Ocampo and Nooris arranged for more drug
sales. On December 26, 2011, Nooris asked if Ocampo
could deliver the drugs immediately in order to satisfy one
of Nooris’s buyers, “the white dude.” ER 636. Ocampo
responded that he would come immediately. A few days
after that, Nooris asked Ocampo to bring more
methamphetamine so that Nooris could sell it while Ocampo
waited in the car. That same night, Ocampo and Nooris met
again for another resupply.

    On January 19, 2012, Nooris arranged to sell some of
Ocampo’s supply on consignment, i.e., on credit, offering
assurance that Ocampo would receive payment as soon as
the methamphetamine could be sold that evening. Nooris
kept Ocampo apprised of the status of the sales during that
night. The next day, Nooris called again for a resupply,
commenting that he had most of the money needed to pay
down his “tab” with Ocampo. ER 158, 711. Nooris said one
of his customers “wanted to get somethin kinda big,” ER
717, and so Ocampo agreed to the resupply.

   The frequency and duration of the dealings were
substantial. Over the course of this relationship, Ocampo
was     Nooris’s    “most     consistent     source”   of
methamphetamine, and Nooris obtained the drugs from
6          UNITED STATES V. OCAMPO-ESTRADA

Ocampo for “almost a year.” ER 82, 197. Sometimes, the
two would meet “two or three times a day.” ER 142.

    On January 22, 2012, Nooris was pulled over for
speeding and, after officers searched his car and discovered
methamphetamine, they arrested him. While in custody at
the county jail, Nooris spoke with Ocampo on a recorded jail
call. In that call, Ocampo asked permission to sell the drugs
to Nooris’s customers while Nooris was incarcerated.
Nooris agreed and gave Ocampo advice on how to find these
customers, what to watch out for, and how much to sell.
Eventually federal agents arrested Ocampo on October 19,
2012, and the United States charged both Nooris and
Ocampo with conspiracy to distribute methamphetamine
under 21 U.S.C. §§ 841 and 846.

    Nooris pleaded guilty, but Ocampo went to trial. After
the jury convicted Ocampo, the district court applied a
twenty-year mandatory minimum sentence based on a
determination that Ocampo’s prior California conviction
qualified as a felony drug offense under 21 U.S.C.
§ 841(b)(1)(A). Ocampo now appeals his conviction and
sentence.

                     II. DISCUSSION

    A. The Evidence was Insufficient to Support a Buyer-
       Seller Instruction

    We begin with Ocampo’s conviction. Before closing
argument, Ocampo requested a theory-of-defense jury
instruction on the buyer-seller exception to conspiracy
liability. That exception provides that a mere sales
transaction does not constitute an “agreement” sufficient to
support a conspiracy conviction—there must be proof of
some further agreement to commit a crime other than the sale
           UNITED STATES V. OCAMPO-ESTRADA                     7

itself, i.e., “to further distribute the drug in question.” E.g.,
United States v. Moe, 781 F.3d 1120, 1124–25 (9th Cir.
2015). The district court found insufficient evidence to
warrant the instruction and denied it. We review that
decision for abuse of discretion. United States v. Bello-
Bahena, 411 F.3d 1083, 1089 (9th Cir. 2005).

    “A criminal defendant has a constitutional right to have
the jury instructed according to h[is] theory of the case,
provided that the requested instruction is supported by law
and has some foundation in evidence.” Moe, 781 F.3d at
1127 (emphasis added). The question is whether “there is
evidence upon which the jury could rationally sustain the
defense.” United States v. Jackson, 726 F.2d 1466, 1468
(9th Cir. 1984); accord Moe, 781 F.3d at 1128.

    We hold that the district court did not abuse its discretion
in denying Ocampo’s requested buyer-seller instruction
because the evidence established at trial was not sufficient to
sustain that theory of defense. Ocampo was Nooris’s most
consistent source for drugs and the relationship persisted for
almost a year, with distributions to Nooris occurring
frequently. Moreover, the majority of Ocampo’s sales to
Nooris were made on some form of credit, and involved
amounts given to Nooris that exceeded the amount typical
for personal use. Ocampo knew that Nooris was dividing up
the drugs for resale, and the two of them advised each other
on the conduct of their respective roles in the business. The
force of the government’s evidence, coupled with the lack of
contradictory evidence, compel our conclusion that the
district court did not abuse its discretion in declining the
requested buyer-seller instruction.

    We now turn to the sentence of imprisonment.
8          UNITED STATES V. OCAMPO-ESTRADA

    B. Failure to Show Prior Conviction Qualifies as
       Felony Drug Offense

       1. Sentencing Proceedings

    Before trial, the government filed an Information under
21 U.S.C. § 851 notifying Ocampo that it would enhance his
statutory mandatory minimum sentence to twenty years
based on Ocampo’s prior felony drug conviction under
California law. The enhancement was to be based on
Ocampo’s September 9, 1998 conviction under California
Health & Safety Code section 11378, which criminalizes the
possession of certain controlled substances for sale. The
United States took the position that this conviction qualified
as a “felony drug offense” under 21 U.S.C. § 841(b)(1)(A).
The term “felony drug offense” is defined in 21 U.S.C.
§ 802(44) as “an offense 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.” (emphasis
added.) To support its burden, the government introduced
the state-court minutes from the pronouncement of
judgment, and the abstract of judgment of the state
proceeding. While these materials clearly show Ocampo
pleaded guilty to California Health & Safety Code
section 11378, they do not describe which controlled
substance under California law Ocampo pleaded guilty to
possessing for sale.

    Ocampo attacked the proposed federal sentence
enhancement on several grounds, but he did not challenge it
on the basis that his prior conviction failed to qualify as a
felony drug offense. However, neither did the district court
advise him that he was required to make timely challenges
to the proposed enhancement in order to avoid a statutory
             UNITED STATES V. OCAMPO-ESTRADA                           9

waiver under 21 U.S.C. § 851(c)(2) (“Any challenge to a
prior conviction, not raised by response to the information
before an increased sentence is imposed in reliance thereon,
shall be waived . . . .”).

    After the trial, when it came time for sentencing,
Ocampo made several objections to the presentence report,
which had concluded that Ocampo’s criminal behavior was
escalating. He countered by stating that his prior California
state conviction only “involve[d] 57 grams of
Methamphetamine.” ER 779. 1 Again, however, he did not
object that his prior California conviction did not qualify as
a felony drug offense.

    Because the argument was not raised, the district court
did not analyze whether Ocampo’s prior conviction qualified
as a felony drug offense. Thus, without discussion of that
issue, the district court proceeded to impose the twenty-year
mandatory minimum sentence under 21 U.S.C.
§ 841(b)(1)(A). Ocampo now argues on appeal for the first
time that his California section 11378 conviction does not
qualify as a felony drug offense. 2


    1
       The federal definition of “felony drug offense” encompasses
methamphetamine. See 21 U.S.C. § 802(44) (defining felony drug
offense to include “depressant or stimulant substances,” which is further
defined by § 802(9)(B) to include amphetamines); see also United States
v. Mincoff, 574 F.3d 1186, 1201 (9th Cir. 2009). But as explained below,
we do not rely on this statement in Ocampo’s objections to the instant
federal presentence report to conclude that Ocampo necessarily pleaded
guilty in the state prosecution to possession of methamphetamine for
sale.
    2
      Ocampo also argues that the definition of felony drug offense in
21 U.S.C. § 802(44) is unconstitutionally vague on its face, but we do
not reach that question because it does not affect the result.
10         UNITED STATES V. OCAMPO-ESTRADA

       2. Ocampo Did Not Waive This Challenge

    The United States contends that Ocampo waived this
challenge by failing to raise it before the district court as
required by 21 U.S.C. § 851(c)(2). That statute sets forth the
procedures for establishing prior convictions for the purpose
of sentencing enhancements. Preliminarily, before trial or
entry of a guilty plea, the United States must file an
Information identifying “the previous conviction[] to be
relied upon” to enhance the defendant’s sentence. Id.
§ 851(a)(1).

    Then after conviction but before imposing the sentence,
the district court “shall . . . inquire of the [offender] . . .
whether he affirms or denies [the prior conviction] . . . , and
shall inform him that any challenge to a prior conviction” is
waived if not made before sentencing. Id. § 851(b)
(emphasis added). “We require strict compliance with the
procedural aspects of section 851(b). The § 851(b) colloquy
is not merely a procedural requirement. It serves a
functional purpose to place the procedural onus on the
district court to ensure defendants are fully aware of their
rights.” United States v. Rodriguez, 851 F.3d 931, 946 (9th
Cir. 2017) (internal quotation marks and citation omitted).

    The problem here is that the district court never asked
Ocampo whether he affirmed or denied the 1998 conviction
as alleged, nor did the court advise Ocampo that failure to
make a timely challenge would constitute waiver. That
defeats any argument by the United States that Ocampo
waived his challenge, as Ocampo “was not required to affirm
or deny the convictions or file a written response until
addressed personally by the district court and advised of his
obligation to do so and—importantly—that any failure to do
             UNITED STATES V. OCAMPO-ESTRADA                            11

so waived any objections.” Id. at 947. Accordingly, we
proceed to the merits of the argument. 3

         3. Prior Conviction Does Not Qualify As a Felony
            Drug Offense

    To determine whether Ocampo’s conviction under
California Health & Safety Code section 11378 would
qualify as a federal felony drug offense, we look to the
statutory elements under which the offender was previously
convicted, rather than the underlying conduct or facts giving
rise to that conviction. See United States v. Hollis, 490 F.3d
1149, 1157 (9th Cir. 2007), abrogated on other grounds by
DePierre v. United States, 564 U.S. 70 (2011); accord
United States v. Hernandez, 312 F. App’x 937, 939 (9th Cir.
2009) (unpublished) (applying the categorical approach to
the “felony drug offense” definition). This analysis requires
a categorical comparison between the predicate offense of
conviction and the federal definition. First, “we ask whether
the statute of conviction is a categorical match to the generic
predicate offense; that is, if the statute of conviction
criminalizes only as much (or less) conduct than the generic
offense.” Medina-Lara v. Holder, 771 F.3d 1106, 1112 (9th
Cir. 2014). The parties do not dispute that the statute of
conviction is “overbroad.” See id. Thus, we next “ask if the
statute of conviction’s comparatively ‘overbroad’ element is
divisible.” Id.

   If a predicate statute is divisible—i.e., it lists alternative
elemental versions of the offense within the same statute,
    3
      It is also settled “that failure to comply with section 851(b) renders
the sentence illegal,” subject to a harmlessness analysis. Rodriguez,
851 F.3d at 946 (quoting United States v. Housley, 907 F.2d 920, 921
(9th Cir. 1990)). However, Ocampo never makes this argument on
appeal, so we do not address it.
12         UNITED STATES V. OCAMPO-ESTRADA

rather than simply separate means for committing a single
offense—then the modified categorical approach is used to
determine which elemental version of the offense was
committed. See Mathis v. United States, 136 S. Ct. 2243,
2249 (2016). In such a case, “a sentencing court looks to a
limited class of documents” from the record of a prior
conviction to determine which version of the offense was the
basis for that conviction. Id. (citing Shepard v. United
States, 544 U.S. 13, 26 (2005)). The limited class of
documents includes “the terms of the charging document,
the terms of the plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for
the plea was confirmed by the defendant, or to some
comparable judicial record of this information.” Shepard,
544 U.S. at 26. In the context of a guilty plea, that inquiry
is “limited to assessing whether the defendant ‘necessarily
admitted’ the elements of the particular statutory alternative
that is a categorical match” with the federal definition.
United States v. Sahagun-Gallegos, 782 F.3d 1094, 1100
(9th Cir. 2015) (quoting Descamps v. United States,
133 S. Ct. 2276, 2284 (2013)).

    With this in mind, the threshold question then is whether
California Health & Safety Code section 11378 is a divisible
statute. We hold that it is. In United States v. Martinez-
Lopez, — F.3d —, No. 14-50014, 2017 WL 3203552, at *5
(9th Cir. July 28, 2017) (en banc), our en banc Court recently
held that a similar statute, California Health & Safety Code
section 11352, is divisible with respect to its controlled-
substance requirement. In other words, the controlled
substances referenced in section 11352 are treated as listing
separate offenses, rather than merely listing separate means
of committing a single offense.
            UNITED STATES V. OCAMPO-ESTRADA                       13

    The rationale of Martinez-Lopez applies with equal force
to section 11378, the statute before us. Martinez-Lopez
relied principally on a California Supreme Court decision, In
re Adams, 536 P.2d 473, 479 (Cal. 1975), which implicitly
approved of multiple convictions under a single drug statute
when the conduct involved different types of drugs.
2017 WL 3203552, at *5 (“As a result of Adams and its
progeny, defendants are routinely subjected to multiple
convictions under a single statute for a single act as it relates
to multiple controlled substances.”). That means that the
particular drug at issue is not an alternative means of
committing a single offense, but in fact constitutes a distinct
offense. Id. This principle logically extends past section
11352 to other California drug laws that criminalize an
activity relating to other referenced controlled substances
including section 11378. 4

    Martinez-Lopez also pointed out that California jury
instructions require a jury to fill in a blank identifying the
controlled substance implicated under section 11352.
2017 WL 3203552, at *5. So too for § 11378. Judicial
Council of California Criminal Jury Instructions
(CALCRIM) 2302. Finally, the Court’s citation to scholarly
commentary on California law—that “‘[a] specified
controlled substance’ [is] an element common to all criminal
drug offenses”—applies to § 11378 as it does to many other
California criminal drug laws. 2017 WL 3203552, at *5
(quoting 2 Witkin, Cal. Crim. Law § 102(1)(a) (4th ed.
2012)). Thus, as a simple extension of Martinez-Lopez’s
logic to a different but similarly structured statute, we hold

    4
       The en banc Court recognized in its opening sentence that its
holding would necessarily have implications beyond section 11352: “We
took this case en banc to revisit the divisibility of California drug
statutes.” Martinez-Lopez, 2017 WL 3203552, at *1 (emphasis added).
14          UNITED STATES V. OCAMPO-ESTRADA

that section 11378 is also divisible. This holding enables
sentencing courts to use the modified categorical approach
to determine which controlled-substance element necessarily
formed the basis of an offender’s prior conviction under
section 11378.

    Looking to the “limited class of documents” from the
record of the prior conviction, Mathis, 136 S. Ct. at 2249,
there is simply no indication of which controlled-substance
element Ocampo pleaded guilty to as part of his
section 11378 conviction. The United States shoulders the
burden to prove a prior conviction qualifies as a felony drug
offense, see United States v. Pimentel-Flores, 339 F.3d 959,
968 (9th Cir. 2003), but here the government’s proof is
inadequate. The government offers from the record of
conviction only the abstract of judgment and the state-court
minutes from the pronouncement of judgment, but neither
document answers the central question before us: whether
Ocampo pleaded guilty to a controlled-substance element of
section 11378, which is encompassed by the federal “felony
drug offense” definition in 21 U.S.C. § 802(44).

    Lacking such proof, the United States hangs its case on
Ocampo’s statement made when objecting to the
presentence report in the case before us. Ocampo stated his
prior offense “involve[d] 57 grams of Methamphetamine.” 5
ER 779. But there are two problems with relying upon this
statement as a basis to enhance Ocampo’s sentence. First,
Ocampo’s statement made in the instant case appears in a

     5
        California Health & Safety Code section 11378 includes
methamphetamine within its ambit. Subsection (5) of that statute
incorporates by reference the substances listed in California Health &
Safety Code section 11055(d), which in turn includes methamphetamine,
see id. § 11055(d)(2).
             UNITED STATES V. OCAMPO-ESTRADA                          15

document that is outside the “limited class of documents”
from the record of a prior conviction upon which a
sentencing court may rely to determine which version of an
offense was the basis for a prior conviction. Mathis, 136 S.
Ct. at 2249.

    Second, this statement does not constitute an admission
that methamphetamine was the element of section 11378 to
which Ocampo pleaded guilty—at best it indicates that the
conduct giving rise to his prior conviction “involve[d]”
methamphetamine. ER 779. We cannot assume from
Ocampo’s statement here that his section 11378 conviction
was predicated on a plea of guilty to the controlled-substance
element of methamphetamine in particular. To do so would
clash with the Supreme Court’s “demand for certainty” when
attempting to match a predicate offense with a federal
statute. Shepard, 544 U.S. at 21. In fact, the Supreme Court
has expressly forbidden reliance upon the underlying facts
of a prior conviction to determine whether the prior offense
categorically matches the federal statute at issue. Descamps,
133 S. Ct. at 2287 (a sentencing court cannot “discover what
the defendant actually did” and then use those discovered
facts to establish a categorical match); see also Sahagun-
Gallegos, 782 F.3d at 1100–01 (same). 6

    With no judicially noticeable documents from the record
of conviction that answer the question, and without resorting
to Ocampo’s statement in his objections to the presentence

    6
      Nor do we treat this statement as a waiver or concession that his
1998 conviction qualifies as a felony drug offense. He did not say he
was waiving the argument that his section 11378 conviction is not a
felony drug offense. In fact, the context of his statement was that he was
opposing the probation office’s conclusion that his criminal behavior
was escalating—he was not intentionally relinquishing his right to
challenge the government’s effort to establish a categorical match.
16         UNITED STATES V. OCAMPO-ESTRADA

report, we hold that the United States has failed to
demonstrate that Ocampo’s section 11378 conviction was
based on a guilty plea to a controlled-substance element that
is included within the federal “felony drug offense”
definition. Accordingly, we cannot say that Ocampo’s prior
conviction categorically qualified as a felony drug offense.
The sentence therefore is vacated.

                   III. CONCLUSION

    The conviction is AFFIRMED. The sentence is
VACATED, and the matter is REMANDED for
resentencing.
