                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 07 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10312

              Plaintiff-Appellee,                D.C. No.
                                                 1:12-cr-01301-DKW-1
 v.

ALAN L. MAPUATULI,                               MEMORANDUM*

              Defendant-Appellant.


                  Appeal from the United States District Court
                            for the District of Hawaii
                 Derrick Kahala Watson, District Judge, Presiding

                     Argued and Submitted February 13, 2019
                               Honolulu, Hawaii

Before: TALLMAN, BYBEE, and N.R. SMITH, Circuit Judges.

      A jury convicted Alan Mapuatuli of two counts of possessing/distributing

methamphetamine, as well as one count of possessing a firearm in furtherance of a

drug trafficking offense. Mapuatuli appeals both his conviction and his sentence.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm

Mapuatuli’s conviction, but vacate his sentence and remand for re-sentencing.

                                          I.

      The district court did not abuse its discretion when it allowed the jury to use

a transcript of an audio recording played at trial. United States v. Turner, 528 F.2d

143, 167 (9th Cir. 1975) (per curiam) (“[A]ccurate typewritten transcripts of sound

recordings, used contemporaneously with the introduction of the recordings into

evidence . . . [may be used] to assist the jury in following the recordings while they

are being played.”); see also United States v. Delgado, 357 F.3d 1061, 1070 (9th

Cir. 2004), abrogated on other grounds by United States v. Nevils, 598 F.3d 1158,

1167 (9th Cir. 2010) (en banc). The district court reviewed the transcript to ensure

its accuracy, gave an appropriate limiting instruction, and allowed Mapuatuli to

point out any inaccuracies or inconsistencies between the recording and the

transcript. Mapuatuli has not identified any inaccuracies in the transcript, and any

prejudice he suffered from its introduction was minimal and is easily outweighed

by the other incriminating evidence produced at trial. Mapuatuli identifies no other

alleged errors affecting the jury’s verdict. We therefore affirm his conviction.




                                           2
                                          II.

      When it sentenced Mapuatuli, the district court found that he was subject to

a mandatory sentence of life imprisonment pursuant to 21 U.S.C. § 841. This

finding was due, in part, to his 1988 conviction for maintaining a property for

purposes of manufacturing a controlled substance in violation of section

11366.5(a) of the California Health & Safety Code.1 The district court concluded

that this offense was a prior felony drug conviction. See 21 U.S.C. § 802(44)

(defining “felony drug offense” as any offense “punishable by imprisonment for

more than one year under any law under 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”). We disagree

that Mapuatuli’s 1988 conviction is a qualifying predicate conviction for these

purposes.

      The statute of conviction, section 11366.5(a), prohibits maintaining property

“for the purpose of unlawfully manufacturing, storing, or distributing any

controlled substance for sale or distribution.” We have previously ruled “that


      1
        It is clear from the record that Mapuatuli’s 1988 conviction was under
section 11366.5(a), because the judgment indicates that the conviction was for
maintaining a property for the purposes of manufacturing a controlled substance,
and manufacture is only mentioned and prohibited by subsection (a) of that statute.


                                           3
California law regulates the possession and sale of numerous substances that are

not similarly regulated by the [Federal Controlled Substances Act].” Ruiz-Vidal v.

Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007), abrogated on other grounds by

Kwong v. Holder, 671 F.3d 872 (9th Cir. 2011). Because a conviction under

Section 11366.5(a) can stem from a substance that is not regulated by federal law,

this statute is broader than the federal definition and is not a categorical match.

United States v. Ocampo-Estrada, 873 F.3d 661, 666-67 (9th Cir. 2017).

Therefore, Mapuatuli’s 1988 conviction does not qualify as a predicate offense

under the categorical approach. Medina-Lara v. Holder, 771 F.3d 1106, 1112 (9th

Cir. 2014).

      Nor does Mapuatuli’s 1988 conviction qualify as a predicate offense under

the modified categorical approach. Section 11366.5(a) lists a number of acts in the

alternative, but we cannot “assume that a statute . . . defines multiple crimes simply

because it contains a disjunctive list.” United States v. Martinez-Lopez, 864 F.3d

1034, 1039 (9th Cir.) (en banc), cert. denied, 138 S. Ct. 523 (2017) (citing Mathis

v. United States, 136 S. Ct. 2243, 2249 (2016)). Instead section 11366.5(a) sets out

a single offense—i.e. maintaining a property for drug related purposes—along with

a list of “illustrative examples” of the means by which this offense may be

committed, all of which are subject to the same punishment. Mathis, 136 S. Ct. at


                                           4
2256 (internal citation omitted); cf. id. (“If statutory alternatives carry different

punishments, then . . . they must be elements.”). Since we find that the statute is

not divisible, the modified categorical approach has no application here.2

      Because section 11366.5(a) is neither a categorical match with the federal

definition nor a divisible statute, the district court erred when it concluded that

Mapuatuli’s 1988 conviction was a qualifying predicate conviction for purposes of

21 U.S.C. § 841. Therefore, we must vacate Mapuatuli’s sentence and remand for

re-sentencing.3 We do not reach the other arguments raised by Mapuatuli

regarding his 1988 conviction, because they are moot in light of our finding that




      2
        Even if we could apply the modified categorical approach here, the district
court relied on documents that are insufficient to establish that the 1988 conviction
is a qualifying predicate offense under that approach. The district court relied on
an admission made “in a 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.”
Ocampo-Estrada, 873 F.3d at 669-70 (quoting Mathis, 136 S. Ct. at 2249)
(emphasis omitted).
      3
         The district court indicated at sentencing that it would have imposed a life
sentence even if Mapuatuli was not subject to a statutorily mandated life sentence
based on his two prior felony drug convictions. We express no views regarding the
appropriateness of such a sentence in these circumstances. However, when the
district court re-sentences Mapuatuli, it may also consider what effect (if any) the
recently enacted First Step Act has on Mapuatuli’s sentence. See Pub. L. No.
115-391, § 401(a), 132 Stat. 5194 (Dec. 21, 2018).
                                            5
section 11366.5(a) is neither a categorical match with the federal definition nor a

divisible statute.

                                         III.

       Mapuatuli also raises other arguments on appeal not raised prior to

sentencing. We would ordinarily deem those arguments waived. See 21 U.S.C.

§ 851(c). However, because the district court failed to conduct a proper 21 U.S.C.

§ 851(b) colloquy, the waiver rule does not apply. See United States v. Rodriguez,

851 F.3d 931, 946 (9th Cir. 2017); see also Ocampo-Estrada, 873 F.3d at 666-67.

Yet, we review the arguments not raised by Mapuatuli below for plain error.

United States v. Chi Mak, 683 F.3d 1126, 1133 (9th Cir. 2012).

A.     The district court did not err when it found that Mapuatuli’s 1990 conviction

under section 11352 of the California Health & Safety Code was a qualifying

predicate offense for purposes of 21 U.S.C. § 841. Mapuatuli’s conviction under

section 11352 was properly assessed under the modified categorical approach. See

Martinez-Lopez, 864 F.3d at 1043. The documents of the sort relied on by the

district court, i.e., an information and an abstract of judgment, properly established

the elements of the prior conviction. Ramirez-Villalpando v. Holder, 645 F.3d

1035, 1040 (9th Cir. 2011). The district court did not err, plainly or otherwise,

when it found that these documents (which demonstrate that Mapuatuli was


                                           6
charged with and pled guilty to selling cocaine) sufficiently establish that this

conviction is a qualifying prior felony drug offense.

B.    The definition of “felony drug offense” in 21 U.S.C. § 802(44) is not void

for vagueness. We have previously rejected such an argument. See United States

v. Mincoff, 574 F.3d 1186, 1201 (9th Cir. 2009); United States v. Van Winrow, 951

F.2d 1069, 1072 (9th Cir. 1991) (per curiam). Additionally, Mapuatuli does not

argue that § 802(44) is vague as applied to him. Instead, he merely asserts that its

application to convictions under other statutes is uncertain. However, “[a] plaintiff

who engages in some conduct that is clearly proscribed cannot complain of the

vagueness of the law as applied to the conduct of others.” Holder v. Humanitarian

Law Project, 561 U.S. 1, 18-19 (2010) (citation omitted). Unlike the provision at

issue in Johnson v. United States, 135 S. Ct. 2551 (2015),4 21 U.S.C. § 802(44)

provides a standard that we have previously ascertained and readily applied. See

Mincoff, 574 F.3d at 1201; Van Winrow, 951 F.2d at 1072.

C.    Finally, because we are vacating Mapuatuli’s sentence and remanding for re-

sentencing, Mapuatuli’s cumulative error argument is moot. Mapuatuli’s request




      4
       Johnson considered the residual clause of the Armed Career Criminal Act,
18 U.S.C. § 924(e)(2)(B).
                                           7
to supplement his opening brief or to re-open argument is moot as well, and is

denied on that basis.

      AFFIRMED in part, VACATED in part and REMANDED.




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