                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF                            No. 16-10388
 AMERICA,
      Plaintiff-Appellee,                    D.C. No.
                                    2:15-cr-00176-KJD-GWF-1
               v.
                                       ORDER CERTIFYING
 GIBRAN RICHARDO                       QUESTIONS TO THE
 FIGUEROA-BELTRAN,                     NEVADA SUPREME
    Defendant-Appellant.                    COURT


                        Filed June 6, 2018

    Before: Diarmuid F. O’Scannlain and Johnnie B.
  Rawlinson, Circuit Judges, and Sarah S. Vance,* District
                          Judge.




    *
      The Honorable Sarah S. Vance, United States District Judge for the
Eastern District of Louisiana, sitting by designation.
2           UNITED STATES V. FIGUEROA-BELTRAN

                            SUMMARY**


    Criminal Law / Certification of Questions to Nevada
                     Supreme Court

    In an appeal from a criminal sentence, the panel certified
the following questions to the Nevada Supreme Court:

         1. Is Nev. Rev. Stat. § 453.337 divisible as to
         the controlled substance requirement?

         2. Does the decision in Luqman conclude that
         the existence of a controlled substance is a
         “fact” rather than an “element” of § 453.337,
         rendering the statute indivisible? If so, can
         this conclusion be reconciled with Muller?

         3. Does the decision in Muller conclude that
         offenses under § 453.337 comprise “distinct
         offenses requiring separate and different
         proof,” rendering the statute divisible as to the
         controlled substance requirement? If so, can
         this be reconciled with Luqman?




    **
       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. FIGUEROA-BELTRAN                       3

                                 ORDER

     The issue for decision in this case is whether Nevada
Revised Statute § 453.337, which criminalizes conduct
related to certain controlled substances identified by reference
to the Nevada Administrative Code, is divisible under federal
law for the purpose of applying the federal sentencing
guidelines.1 This question of law is determinative of the
matter pending before this court and we are not aware of any
clearly controlling precedent in the existing decisions of the
Nevada Supreme Court. Accordingly, pursuant to Rule 5 of
the Nevada Rules of Appellate Procedure,2 we respectfully
request that the Nevada Supreme Court determine whether,
under Nevada law, § 453.337 is divisible.



    1
        Section 453.337 provides in pertinent part:

           Except as otherwise authorized by the provisions of
           NRS 453.011 to 453.552, inclusive, it is unlawful for a
           person to possess for the purpose of sale flunitrazepam,
           gamma-hydroxybutyrate, any substance for which
           flunitrazepam or gamma-hydroxybutyrate is an
           immediate precursor or any controlled substance
           classified in schedule I or II.

Nev. Rev. Stat. § 453.337 (2017).
    2
        Rule 5(h) provides:

           The written opinion of the Supreme Court stating the
           law governing the questions certified shall be sent by
           the clerk under the seal of the Supreme Court to the
           certifying court and to the parties and shall be res
           judicata as to the parties.

Nev. R. App. P. 5(h).
4             UNITED STATES V. FIGUEROA-BELTRAN

    I. Factual and Procedural Background

    In 2012, Gibran Figueroa-Beltran (Figueroa), a native of
Mexico, was found in possession of one gram of cocaine and
5.8 grams of heroin during a traffic stop. He was convicted
in the Eighth Judicial District Court of possession of a
controlled substance with intent to sell in violation of
§ 453.337 and sentenced to 19 to 48 months’ imprisonment.
He was paroled approximately one year later, but
subsequently arrested for selling a controlled substance, and
removed to Mexico.

    Within two years of his removal, Figueroa illegally
reentered the United States, where he was once again arrested
for selling a controlled substance. While those charges were
pending, Figueroa was charged with 26 other counts of drug-
related offenses, including receiving stolen property,
receiving a stolen vehicle, being a prohibited person in
possession of firearms, operating a place for the sale of
controlled substances, possessing for sale Schedule I/II
controlled substances, trafficking Schedule I controlled
substances (28+ grams), conspiring to violate the federal
Controlled Substances Act, and selling Schedule I or II
controlled substances.

    A federal grand jury later indicted Figueroa for being a
deported alien found unlawfully in the United States, in
violation of 8 U.S.C. § 1326.3 Figueroa pled guilty without




    3
        Section 1326 provides in pertinent part:

           [A]ny alien who–
             UNITED STATES V. FIGUEROA-BELTRAN                         5

a plea agreement and the district court imposed a low-end
Guideline sentence of 41 months’ imprisonment followed by
a three-year term of supervised release. In calculating the 41-
month sentence, the district court began with a base offense
level of 8 and added a 16-level enhancement under United
States Sentencing Guidelines (U.S.S.G.) § 2L1.2 due to
Figueroa’s 2012 conviction for possession of a controlled
substance for sale. Figueroa objected to the enhancement,
noting that his conviction for a violation of § 453.337 did not
qualify as a drug trafficking offense.

    Figueroa filed a timely appeal challenging the district
court’s application of the 16-level enhancement provided for
in U.S.S.G. § 2L1.2.4



          (1) has been denied admission, excluded, deported, or
          removed or has departed the United States while an
          order of exclusion, deportation, or removal is
          outstanding, and thereafter

          (2) enters, attempts to enter, or is at any time found in,
          the United States, unless (A) prior to his reembarkation
          at a place outside the United States or his application
          for admission from foreign contiguous territory, the
          Attorney General has expressly consented to such
          alien’s reapplying for admission; or (B) with respect to
          an alien previously denied admission and removed,
          unless such alien shall establish that he was not
          required to obtain such advance consent under this
          chapter or any prior Act . . .

8 U.S.C. § 1326.
    4
        Section 2L1.2 provided:

          (a) Base Offense Level: 8
6          UNITED STATES V. FIGUEROA-BELTRAN




        (b) Specific Offense Characteristic

            (1) Apply the Greatest:

        If the defendant previously was deported, or unlawfully
        remained in the United States, after–

                 (A) a conviction for a felony that is (i) a drug
                 trafficking offense for which the sentence
                 imposed exceeded 13 months; (ii) a crime of
                 violence; (iii) a firearms offense; (iv) a child
                 pornography offense; (v) a national security or
                 terrorism offense; (vi) a human trafficking
                 offense; or (vii) an alien smuggling offense,
                 increase by 16 levels if the conviction receives
                 criminal history points under Chapter Four or
                 by 12 levels if the conviction does not receive
                 criminal history points;

                 (B) a conviction for a felony drug trafficking
                 offense for which the sentence imposed was
                 13 months or less, increase by 12 levels if the
                 conviction receives criminal history points
                 under Chapter Four or by 8 levels if the
                 conviction does not receive criminal history
                 points;

                 (C) a conviction for an aggravated felony,
                 increase by 8 levels;

                 (D) a conviction for any other felony, increase
                 by 4 levels; or

                 (E) three or more convictions for
                 misdemeanors that are crimes of violence or
                 drug trafficking offenses, increase by 4 levels.

U.S.S.G. § 2L1.2 (2015).
          UNITED STATES V. FIGUEROA-BELTRAN                 7

   II. Governing Federal Law

    Section 2L1.2 applied to defendants who “unlawfully
enter[ed] or remain[ed] in the United States.” U.S.S.G.
§ 2L1.2. At the time of Figueroa’s sentencing on August 24,
2016, Guideline § 2L1.2(b)(1)(A) provided for a base offense
level of 8, plus a 16-level enhancement if the defendant was
“previously . . . deported” and had a previous conviction for
a “drug trafficking offense” with a sentence exceeding
13 months. Id. § 2L1.2(b)(1)(A). The commentary to
Guideline § 2L1.2 defined a “drug trafficking offense” as:

       an offense under federal, state, or local law
       that prohibits the manufacture, import, export,
       distribution, or dispensing of, or offer to sell
       a controlled substance (or a counterfeit
       substance) or the possession of a controlled
       substance (or a counterfeit substance) with
       intent to manufacture, import, export,
       distribute, or dispense.

Id. § 2L1.2, cmt. app. n.l (B)(iv) (2015).

    To assess whether a prior conviction under § 453.337
qualified as a drug trafficking offense under Guideline
§ 2L1.2, we employ a “three-step analysis.” United States v.
Martinez-Lopez, 864 F.3d 1034, 1038 (9th Cir. 2017) (en
banc) (citation omitted). At the first step, “we ask whether
[§ 453.337] is a categorical match with a federal drug
trafficking offense.” Id. (citation omitted). In so doing, “we
look only to the statutory definitions of the corresponding
8          UNITED STATES V. FIGUEROA-BELTRAN

offenses.”5 Id. (citation and internal quotation marks
omitted). If § 453.337 “proscribes the same amount of or less
conduct than that qualifying as a federal drug trafficking
offense, then the two offenses are a categorical match,” and
the conviction under that statute “automatically qualifies as
a predicate drug trafficking offense.” Id. (citations and
internal quotation marks omitted).

    If § 453.337 is not a categorical match, we proceed to the
second step of the analysis. At this step, “we ask whether
[§ 453.337] is a divisible statute which sets out one or more
elements of the offense in the alternative” and “thereby
defines multiple crimes.” Id. at 1038–39 (citations,
alterations, and internal quotation marks omitted). A statute
is not necessarily divisible because it is couched in terms of
a disjunctive list. Rather than relying on the disjunctive-list
articulation, we “consult authoritative sources of state law to
determine whether a statute contains alternative elements
defining multiple crimes or alternative means by which a
defendant might commit the same crime.” Id. at 1039
(citation and internal quotation marks omitted). If “(1) a
state court decision definitively answers the question, or
(2) the statute on its face resolves the issue,” our analysis
ends. Id. (citation, alterations, and internal quotation marks
omitted).




    5
      The federal comparator statute is the Controlled Substances Act
(CSA), 21 U.S.C. § 801 et seq. See Martinez-Lopez, 864 F.3d at 1037
(comparing the CSA with California drug trafficking statute for the
purpose of determining applicability of a sentencing enhancement
pursuant to U.S.S.G. § 2L1.2). Similarly to § 453.337, the CSA cross-
references federal drug schedules. See 21 U.S.C. § 802.
          UNITED STATES V. FIGUEROA-BELTRAN                   9

    The elements of a statute “are the constituent parts of a
crime’s legal definition—the things the prosecution must
prove to sustain a conviction.” Mathis v. United States,
136 S. Ct. 2243, 2248 (2016) (citation and internal quotation
marks omitted). In contrast, the means used to fulfill an
element is “extraneous to the crime’s legal requirements.” Id.
The facts underlying the means “need neither be found by a
jury nor admitted by a defendant” for a conviction. Id. Our
divisibility inquiry thus turns on whether the elements of a
crime of conviction “are broader than those of a listed generic
offense,” without regard to “[h]ow a given defendant actually
perpetrated the crime.” Id. at 2251.

    If § 453.337 is divisible, we “proceed to the third step in
our analysis and apply the modified categorical approach” in
which “we examine judicially noticeable documents of
conviction to determine which statutory phrase was the basis
for the conviction.” Martinez-Lopez, 864 F.3d at 1039
(citation omitted). “If the defendant pled or was found guilty
of the elements constituting a federal drug trafficking offense,
the prior state conviction [of violating § 453.337] may serve
as a predicate offense under the sentencing guidelines.” Id.
(citation omitted). We may apply this approach only if
§ 453.337 is divisible.

    Section 453.337 prohibits the “possess[ion] for the
purpose of sale . . . any controlled substance classified in
schedule I or II.” Nev. Rev. Stat. § 453.337. To determine if
the statute is a categorical match for its federal counterpart,
we examine whether § 453.337 “proscribes the same amount
of or less conduct” than the federally defined offense.
Martinez-Lopez, 864 F.3d at 1038. As the government has
conceded, the schedules referenced in § 453.337 criminalize
more substances than are listed in the federal Controlled
10            UNITED STATES V. FIGUEROA-BELTRAN

Substances Act. Consequently, as in Martinez-Lopez, “[t]his
case . . . turns on the second step of our analysis,” whether
§ 453.337 is divisible and thereby susceptible to examination
under the modified categorical approach. Id. at 1039.
However, we are aware of no controlling Nevada precedent
definitively resolving whether or not § 453.337 is a divisible
statute.

     III.      Parties’ Arguments

    Figueroa contends that the Nevada Supreme Court
decision of Sheriff v. Luqman, 697 P.2d 107 (Nev. 1985),
established that § 453.337 is not divisible as to the identity of
the controlled substance possessed by the accused.
According to Figueroa, Luqman established that, under
Nevada’s post-1981 statutory drug scheme, which
encompasses § 453.337, the identity of the controlled
substance is “merely a fact”—rather than an “element of the
offense.”

    At issue in Luqman was the authority of the state board of
pharmacy to “classify drugs into various schedules according
to the drug’s propensity for harm and abuse,” thereby setting
the penalties for violations of the relevant statutory
provisions. 697 P.2d at 109–10. The Nevada Supreme Court
explained:

            [T]he legislature can make the application or
            operation of a statute complete within itself
            dependent upon the existence of certain facts
            or conditions, the ascertainment of which is
            left to the administrative agency. In doing so
            the legislature vests the agency with mere fact
          UNITED STATES V. FIGUEROA-BELTRAN                11

       finding authority and not the authority to
       legislate. . . .

Id. (citations omitted). Luqman held that, “[a]lthough the
legislature may not delegate its power to legislate,” such
authorization to the board properly “delegate[d] the power to
determine the facts or state of things upon which the law
makes its own operations depend,” because the agency, by
classifying controlled substances, was “only authorized to
determine the facts which will make the statute effective.”
Id. (citations omitted). Figueroa seizes upon this language to
describe the identity of the controlled substance as a “fact”
rather than an “element” of § 453.337.

    The government counters that the Nevada Supreme Court
decision of Muller v. Sheriff, 572 P.2d 1245 (Nev. 1977),
establishes that § 453.337 is divisible as to its controlled
substance requirement. In Muller, the defendant-appellant
contended that where “the sale of [two] different controlled
substances was consummated simultaneously in one
transaction, his conduct d[id] not constitute two separate
offenses for which he may be charged.” 572 P.2d at 1245.
The Nevada Supreme Court disagreed, holding that:

       The sale of heroin and the sale of cocaine are
       distinct offenses requiring separate and
       different proof. Here the record shows that
       two distinct offenses were (probably)
       committed since the sale of each controlled
       substance requires proof of an additional fact
       which the other does not, viz., the particular
       identity of the controlled substance sold.
12         UNITED STATES V. FIGUEROA-BELTRAN

Id. (citations, alterations, and internal quotation marks
omitted).

    The government relies on this language to assert that the
Muller decision establishes the divisibility of § 453.337. The
government distinguishes Luqman on the basis that Luqman
“did not address whether the identity of a controlled
substance is an element of Nevada controlled substance
offenses.”

    Luqman and Muller seemingly stand in conflict. Luqman
suggests that the identity of a controlled substance is a non-
elemental factual determination. In contrast, Muller appears
to conclude that the sale of one controlled substance is an
offense distinct from the sale of another, and proof of the
identity of the controlled substance at issue is required.
Without further guidance, we cannot say with confidence that
the Nevada precedent definitively answers the question
whether § 453.337 is divisible as to the identity of a
controlled substance.

     IV.   Certified Questions and Further Proceedings

     When engaging in a divisibility inquiry, we look to such
authoritative sources of state law as state court decisions and
the wording of the relevant state statute. See Mathis, 136 S.
Ct. at 2256. If we cannot readily discern the nature of the
statute from these sources, we may further look to the record
documents—indictments, jury instructions, plea colloquies
and plea agreements—for guidance. See id. at 2256–57 and
n.7.

    With this framework, we respectfully certify the
following questions of law to the Nevada Supreme Court:
          UNITED STATES V. FIGUEROA-BELTRAN                 13

       1. Is Nev. Rev. Stat. § 453.337 divisible as to
       the controlled substance requirement?

       2. Does the decision in Luqman conclude that
       the existence of a controlled substance is a
       “fact” rather than an “element” of § 453.337,
       rendering the statute indivisible? If so, can
       this conclusion be reconciled with Muller?

       3. Does the decision in Muller conclude that
       offenses under § 453.337 comprise “distinct
       offenses requiring separate and different
       proof,” rendering the statute divisible as to the
       controlled substance requirement? If so, can
       this conclusion be reconciled with Luqman?

    “Our phrasing of the questions should not restrict the
Court’s consideration of the issues involved. We
acknowledge that the Court may reformulate the relevant
state law questions as it perceives them to be, in light of the
contentions of the parties . . .” Raynor v. United of Omaha
Life Ins. Co., 858 F.3d 1268, 1273 (9th Cir. 2017) (citation
and alternations omitted). We will abide by the decision of
the Nevada Supreme Court, as specified in Nevada Rule of
Appellate Procedure 5(h). See Chapman v. Deutsche Bank
Nat’l Trust Co., 651 F.3d 1039, 1048 (9th Cir. 2011). “If the
Court determines that the questions presented in this case are
inappropriate for certification, or if it declines the
certification for any other reason, we will resolve the
questions according to our best understanding of [Nevada]
law.” Raynor, 858 F.3d at 1273.

   We accordingly direct the Clerk of this court to forward
a copy of this order, under official seal, to the Nevada
14         UNITED STATES V. FIGUEROA-BELTRAN

Supreme Court, together with copies of all briefs and excerpts
of record that have been filed in this court, with a certificate
of service on the parties.

    We stay further proceedings involving this case pending
a response from the Nevada Supreme Court. This appeal is
withdrawn from submission and will be resubmitted
following the conclusion of proceedings in the Nevada
Supreme Court. The Clerk is directed to administratively
close this docket, pending further order. We direct the parties
to notify the Clerk of this court within one week after the
Nevada Supreme Court accepts or rejects the certification,
and if it accepts certification, again to notify this court within
one week after that court renders its opinion. As required by
Nevada Rule of Appellate Procedure 5(c)(5), the names and
addresses of counsel appear in the appendix. See Chapman,
651 F.3d at 1048.

     It is so ORDERED.



Respectfully submitted,

     Diarmuid F. O’Scannlain and Johnnie B. Rawlinson,
     Circuit Judges, and Sarah S. Vance, District Judge.



                        _______________________________

                        Johnnie B. Rawlinson
                        United States Circuit Judge, presiding
          UNITED STATES V. FIGUEROA-BELTRAN               15

                       APPENDIX

Rene Valladares, Federal Public Defender, and Cristen C.
Thayer and Amy B. Cleary, Assistant Federal Public
Defenders, 411 E. Bonneville, Ste. 250, Las Vegas, Nevada
89101, for Defendant-Appellant.

Dayle Elieson, Interim United States Attorney, Elizabeth O.
White, Appellate Chief, and Nancy M. Olson, Assistant
United States Attorney, District of Nevada, 501 Las Vegas
Blvd. S., Suite 1100, Las Vegas, Nevada 89101, for Plaintiff-
Appellee.
