                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                      No. 16-50276
           Plaintiff-Appellee,
                                                  D.C. No.
                  v.                       3:14-cr-01288-DMS-1

 RANDY ALTON GRAVES,
 AKA Sweets,                                      OPINION
       Defendant-Appellant.


         Appeal from the United States District Court
            for the Southern District of California
          Dana M. Sabraw, District Judge, Presiding

             Argued and Submitted April 10, 2019
                    Pasadena, California

                         Filed May 30, 2019

 Before: Richard A. Paez and Richard R. Clifton, Circuit
         Judges, and Gary S. Katzmann,* Judge.

                       Opinion by Judge Clifton




     *
       The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
2                   UNITED STATES V. GRAVES

                            SUMMARY**


                            Criminal Law

    The panel vacated a life sentence, which the district court
imposed after concluding that the defendant had two prior
felony drug offenses under 21 U.S.C. § 841(b)(1)(A) (2016);
and remanded for re-sentencing.

    The defendant argued that the district court erroneously
concluded that his prior conviction for inmate drug
possession under California Penal Code § 4573.6 (2007)
qualified as a “felony drug offense” triggering a mandatory
term of life imprisonment under § 841(b)(1)(A). The panel
held that § 4573.6 is overbroad because it criminalizes
controlled substances under California law that are not
regulated under federal law. In light of the statute’s plain
text, state court decisions, and the contrast to convictions
under the California Health and Safety Code, the panel held
that § 4573.6 is not divisible. The panel therefore concluded
that a conviction under § 4573.6 cannot be a categorical
“felony drug offense” triggering the mandatory life term
under § 841(b)(1)(A).

    The panel concluded that the district court should be
permitted to consider the defendant’s submissions and impose
a new sentence, notwithstanding that the district court
indicated at the previous sentencing hearing that it would
have imposed a life sentence under the 18 U.S.C. § 3553
factors even if the defendant was not subject to a statutorily

    **
       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. GRAVES                      3

mandated life sentence. The panel wrote that the district
court may consider at re-sentencing what effect, if any, the
recently enacted First Step Act has on the defendant’s
sentence.


                         COUNSEL

Devin Burstein (argued) and Jeremy Warren, Warren &
Burstein, San Diego, California, for Defendants-Appellants.

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


                          OPINION

CLIFTON, Circuit Judge:

    Randy Alton Graves challenges the life sentence imposed
by the district court after it concluded he had two prior felony
drug offenses under 21 U.S.C. § 841(b)(1)(A), mandating a
sentence of life imprisonment. The district court concluded
that his two prior convictions, including for a violation of
California Penal Code § 4573.6, qualified as predicate felony
drug offenses. We conclude that Graves’ section 4573.6
4                  UNITED STATES V. GRAVES

conviction does not qualify as a predicate offense and
therefore vacate his sentence and remand for re-sentencing.1

I. Background

     Graves was charged with (1) conspiracy to distribute
methamphetamine, (2) conspiracy to distribute marijuana,
and (3) possession with intent to distribute
methamphetamine. Before trial, the government filed notice
of its intent to seek an enhanced penalty under 21 U.S.C.
§ 851. Specifically, because Graves had two prior convictions
for felony drug offenses, he would face a mandatory term of
life imprisonment without release if he was convicted of the
instant alleged offenses. 21 U.S.C. § 841(b)(1)(A). One prior
conviction was for inmate drug possession, violating
California Penal Code § 4573.6. The district court concluded
that the prior convictions qualified as felony drug offenses
and the necessary predicate offenses to trigger the
enhancement.

    Graves was subsequently found guilty on all three counts.
At Graves’ sentencing hearing, after concluding Graves was
subject to a mandatory life sentence based on the § 851
enhancement, the court also set out the 18 U.S.C. § 3553
sentencing factors to “perfect the record and to make clear
that if the court were to exercise discretion, if it had any to
impose a sentence at less than life, it would not.”



    1
      We deal with the remainder of Graves’ arguments in a separate
memorandum disposition filed concurrently with this opinion. In that
memorandum we affirm his conviction and also reject his challenge to a
sentencing enhancement based on the alleged unconstitutionality of
21 U.S.C. § 841.
                    UNITED STATES V. GRAVES                              5

II. Jurisdiction and Standard of Review

    We have jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742. We review de novo the divisibility of a
statute. United States v. Martinez-Lopez, 864 F.3d 1034, 1039
(9th Cir. 2017) (en banc).

III.     Discussion

    Graves argues the district court erroneously concluded his
California Penal Code § 4573.6 conviction qualified as a
felony drug offense because the statute is both overbroad and
not divisible.2 To determine whether a state conviction is a
predicate drug trafficking offense, we first determine whether
the state offense is a categorical match with a qualifying
federal drug trafficking offense. Martinez-Lopez, 864 F.3d
1034 at 1038. We do this by looking to statutory definitions
to determine if the state law proscribes the same amount or
less conduct than the federal drug trafficking offense. Id.

    If the state law is not a categorical match, we then must
determine whether the state offense is divisible, setting out
one or more elements of the offense in the alternative. Id. If
a statute that sweeps more broadly than the federal offense
“sets out a single (or ‘indivisible’) set of elements to define


     2
       The government argues this court can deem the section 4573.6
challenge waived because it was not raised in Graves’ opening brief. We
generally review only issues argued specifically and distinctly in the
opening brief. Devereaux v. Abbey, 263 F.3d 1070, 1079 (9th Cir. 2001).
However, we may consider issues that have been fully explored if the
appellee is not prejudiced. Eberle v. City of Anaheim, 901 F.2d 814, 818
(9th Cir. 1990). Graves was given leave to file a supplemental brief on the
subject, and the government filed a supplemental answering brief. We
therefore consider this issue.
6                   UNITED STATES V. GRAVES

a single crime,” no conviction under that law can count as the
qualifying predicate offense. Mathis v. United States, 136 S.
Ct. 2243, 2248–49 (2016). If the state statute is divisible, the
sentencing court may apply the modified categorical
approach, looking to a limited class of documents “to
determine what crime, with what elements, a defendant was
convicted of.” Id. at 2249.3

    There is no dispute that section 4573.6 criminalizes
controlled substances under California law that are not
regulated under federal law, so the statute is overbroad. See
Medina-Lara v. Holder, 771 F.3d 1106, 1112 (9th Cir. 2014).
We therefore must determine if the statute is also divisible.
“[I]f a statute is both overbroad and indivisible, a prior
conviction under that statute will never qualify as a predicate
drug trafficking offense . . . .” Martinez-Lopez, 864 F.3d at
1039.

    A divisible statute sets out one or more elements of the
offense in the alternative, “and so effectively creates ‘several
different . . . crimes.’” Descamps v. United States, 570 U.S.
254, 257, 263–64 (2013) (quoting Nijhawan v. Holder,
557 U.S. 29, 41 (2009)). A statute is divisible if it “lists
multiple elements disjunctively” but is indivisible if it instead


    3
       The government argues it is far from clear that the categorical
approach should apply in the section 851 context. However, the
government acknowledges that we have applied the categorical approach
when evaluating the propriety of a section 851 sentencing enhancement
in United States v. Ocampo-Estrada, 873 F.3d 661 (9th Cir. 2017). We are
not convinced by the government’s argument that there is no reason to
resort to the categorical approach in this context. See United States v.
Sullivan, 797 F.3d 623, 635 (9th Cir. 2015) (“To determine whether a
prior state conviction falls into the specified class of federal offenses, we
generally apply the categorical approach . . . .”).
                 UNITED STATES V. GRAVES                      7

merely “enumerates various factual means of committing a
single element.” Mathis, 136 S. Ct. at 2249. When deciding
whether a statute is divisible, “we look to such authoritative
sources of state law as state court decisions and the wording
of the relevant state statute.” United States v. Figueroa-
Beltran, 892 F.3d 997, 1004 (9th Cir. 2018) (citing Mathis,
136 S. Ct. at 2256).

    Graves was convicted in 2007, when California Penal
Code § 4573.6 provided that knowing possession of “any
controlled substances, the possession of which is prohibited
by Division 10 (commencing with Section 11000) of the
Health and Safety Code,” or any device “intended to be used
for unlawfully injecting or consuming controlled substances,
without being authorized to so possess the same” was a
“felony punishable by imprisonment in the state prison for
two, three, or four years.” Cal. Penal Code § 4573.6 (2007).
The government argues that the statute is divisible because it
criminalizes possession in prison of “any controlled
substances,” so the question of which individual controlled
substance is involved is necessarily an element of the offense.
We conclude that the statute is not divisible based on the
plain text, state court decisions, and the contrast to
convictions under the California Health and Safety Code.

    First, the plain language of the statute suggests that the
type of controlled substance is merely a means of satisfying
the controlled substance element. Although not dispositive,
there are no disjunctive lists in the statute. See Almanza-
Arenas v. Lynch, 815 F.3d 469, 485 (9th Cir. 2016) (Watford,
J., concurring) (noting that indivisible statutes “contain a
single statutory phrase that is not broken down into statutorily
specified alternatives”). The only potentially divisible
element of the statute is the type of controlled substance, and
8               UNITED STATES V. GRAVES

the statute refers to “any controlled substances.” Cal. Pen.
Code § 4573.6(a) (emphasis added). In contrast, statutes in
the California Health and Safety Code prohibit possession of
“any controlled substance.” See Cal. Health & Safety Code
§§ 11350, 11351, 11352, 11377 (emphasis added). This
suggests that contemporaneous possession of multiple
controlled substances is only a single crime under section
4573.6, and the type of controlled substance is merely a
means and not a list of alternative elements. See Mathis,
136 S. Ct. at 2249.

    Second, a California state court has explicitly held that
contemporaneous possession of two or more discrete
controlled substances at the same location constitutes one
offense under section 4573.6. See People v. Rouser, 69 Cal.
Rptr. 2d 563, 564 (Cal. Ct. App. 1997). In Rouser, a state
prison inmate was charged and convicted of two separate
counts of section 4573.6 for possessing methamphetamine
and heroin in the same location on the same day. Id. The
California Court of Appeal concluded that the phrase “any
controlled substances” described “a single offense
irrespective of how many controlled substances are
possessed, as here, at the same time and in the same place.”
Id. at 568. California state courts have relied on Rouser in
subsequent years to reverse multiple convictions under
sections 4573.6 and 4573.8 for inmate possession of different
controlled substances. See, e.g., People v. Escoto, No.
E051638, 2011 WL 3811473, at *5 (Cal. Ct. App. Aug. 30,
2011) (“We agree, as do both parties that defendant should
not have been charged and convicted of two counts of inmate
drug possession (§ 4573.6).”); People v. Woods, No.
F039187, 2003 WL 887056, at *7 (Cal. Ct. App. Mar. 7,
2003) (“Woods argues, the Attorney General agrees, and we
concur that in-custody possession of two illicit substances at
                 UNITED STATES V. GRAVES                       9

the same location at the same time constitutes but one offense
under section 4573.8.”).

    Third, as discussed in Rouser, section 4573.6 is part of a
completely different code and is aimed at different problems
compared to sections of the Health and Safety Code. While
“section 4573.6 appears to be aimed at problems of prison
administration,” sections of the Health and Safety Code are
“designed to protect the health and safety of all persons
within [the state’s] borders . . . by regulating the traffic in
narcotic drugs.” Rouser, 69 Cal. Rptr. 2d at 566–67 (internal
quotation marks omitted). Thus, our precedents holding
certain California statutes within the Health and Safety Code
divisible as to the controlled substance do not necessarily
apply to section 4573.6. See Martinez-Lopez, 864 F.3d at
1036 (announcing “[w]e took this case en banc to revisit the
divisibility of California drug statutes” and citing a section of
the Health and Safety Code); United States v. Ocampo-
Estrada, 873 F.3d 661, 668 (9th Cir. 2017) (noting that the
principle from Martinez-Lopez “logically extends past
section 11352 to other California drug laws”).

    We conclude, therefore, that California Penal Code
§ 4573.6 is not a divisible statute and therefore cannot be a
categorical “felony drug offense” triggering a “mandatory
term of life imprisonment” under 21 U.S.C. § 841(b)(1)(A)
(2016).

     Even with such a conclusion, the government argues that
it is not necessary to vacate the current sentence and remand
for re-sentencing, because the district court indicated at the
previous sentencing hearing that it would have imposed a life
sentence under the 18 U.S.C. § 3553 sentencing factors even
if Graves was not subject to a statutorily mandated life
10               UNITED STATES V. GRAVES

sentence. Graves has noted, however, that because the district
court had already concluded that Graves was subject to a
mandatory life sentence, he did not submit to a presentence
interview or file a sentencing memorandum in an effort to
obtain a lesser sentence because that effort would have been
futile. As a result, we conclude that the district court should
be permitted to consider his submissions and impose a new
sentence thereafter. We express no views regarding the
appropriate sentence in these circumstances. When the
district court re-sentences Graves, it may also consider what
effect, if any, the recently enacted First Step Act has on his
sentence. See Pub. L. No. 115-391, § 401(a), 132 Stat. 5194
(Dec. 21, 2018).

IV.     Conclusion

    We vacate Graves’ sentence and remand for re-
sentencing.

      SENTENCE VACATED AND REMANDED.
