                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         SEP 8 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    15-30340

                Plaintiff-Appellee,             D.C. No.
                                                1:14-cr-00123-SPW-1
 v.

TONY REYES,                                     MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                           for the District of Montana
                    Susan P. Watters, District Judge, Presiding

                          Submitted September 8, 2017**
                                Portland, Oregon

Before: THOMAS, Chief Judge, and CLIFTON and NGUYEN, Circuit Judges.

      Tony Reyes appeals his sentence after pleading guilty to conspiracy to

possess with intent to distribute a controlled substance in violation of 21 U.S.C.

§ 846 and conspiracy to commit money laundering in violation of 18 U.S.C.

§ 1956(h). The district court applied a career offender enhancement under United


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
States Sentencing Guideline § 4B1.1 because it found that Reyes had two prior

felony convictions for controlled substance offenses. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

      1.     The district court correctly found that Wyoming’s drug conspiracy

statute, Wyo. Stat. § 35-7-1042, and its delivering controlled substances statute,

Wyo. Stat. § 35-7-1031(a)(ii), formed the bases for Reyes’s July 2003 conviction

for conspiracy to deliver a controlled substance. Reyes argues that his conviction

was only under Wyoming Statute § 35-7-1042, the conspiracy statute. If true, that

conviction would not be a categorical match for a “controlled substance offense”

under Sentencing Guideline § 4B1.1 because § 35-7-1042 criminalized a broader

swath of conduct than the federal definition, including mere conspiracy to possess.

For purposes of the categorical analysis where a defendant has been convicted of

conspiracy to commit an offense, however, we have treated both the generic

conspiracy statute and the statute governing the underlying offense as the basis for

the defendant’s conviction. See, e.g., United States v. Rivera-Constantino, 798

F.3d 900, 901–05 (9th Cir. 2015). Moreover, a Wyoming conviction solely for

conspiring to commit a generic substance abuse offense is not possible, as

Wyoming law makes the specific substance abuse offense an element of a drug

conspiracy conviction. See Wyo. Criminal Pattern Jury Instructions, 111.12, Use

Note (2014); see, e.g., Adams v. State, 79 P.3d 526, 528 (Wyo. 2003) (“After trial,


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a jury convicted [the defendant] of conspiracy to deliver a controlled substance,

methamphetamine, in violation of Wyo. Stat. Ann. §§ 35-7-1042 and 35-7-

1031(a)(i).” (emphasis added)); Baker v. State, 223 P.3d 542, 546 (Wyo. 2010).

      2.     Reyes’s 2003 conviction qualifies as a controlled substance offense.

First, Wyoming’s drug conspiracy statute was explicitly modeled after its federal

equivalent, 21 U.S.C. § 846, see Marquez v. State, 12 P.3d 711, 715 (Wyo. 2000),

and we have held that 21 U.S.C. § 846 is a categorical match for the definition of

conspiracy in the Sentencing Guidelines, Rivera-Constantino, 798 F.3d at 904–05.

Second, delivering cocaine is a state drug offense where the punishment can

exceed one year. See Wyo. Stat. § 35-7-1031(a)(ii).1 The 2003 conviction is

therefore a categorical match for a controlled substance offense under Sentencing

Guideline § 4B1.1(a), and the district court was correct in applying the career

offender enhancement.

      AFFIRMED.


1
  As Wyoming Statute § 35-7-1031(a)(ii) refers to “[a]ny other controlled
substance classified in Schedule I, II or III,” we can only find that Reyes was
convicted of conspiring to deliver cocaine if the statute is divisible under the
modified categorical approach. See Mathis v. United States, 136 S. Ct. 2243, 2249
(2016). Recently, in United States v. Martinez-Lopez, No. 14-50014, 2017 WL
3203552, at *2, 4–5 (9th Cir. July 28, 2017) (en banc), we held that a California
drug statute is divisible with regard to its controlled substance requirement.
Wyoming Statute § 35-7-1031(a)(ii) is similarly divisible. For example, as with
the California statute, id. at *5, Wyoming jury instructions suggest that the specific
substance is an element of the drug delivery statute. Wyo. Criminal Pattern Jury
Instructions, p. 111.02, Use Note (2014).

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