                                                                                 FILED
                                                                     United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                            July 22, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 15-2182
                                                  (D.C. No. 2:15-CR-01969-JBM-1)
LUIS MARTIN LOPEZ-JACOBO,                                     (D.N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, EBEL and LUCERO, Circuit Judges.
                 _________________________________

      Luis Lopez-Jacobo appeals the district court’s application of a sixteen-level

sentencing enhancement. Exercising jurisdiction under 18 U.S.C. § 3742, we affirm.

                                            I

          In 2000, Lopez-Jacobo was charged in Illinois state court of possessing with

intent to manufacture or deliver one gram or more but less than fifteen grams of any

substance containing cocaine, or an analog thereof, in violation of 720 Ill. Comp.

Stat. 570/401(c)(2) (2000).1 He pled guilty and was sentenced to five-and-a-half


      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
         All subsequent references to § 570/401(c)(2) will refer to the 2000 version of
the statute.
years’ imprisonment. Upon the completion of his sentence, he was removed from the

United States.

      Lopez-Jacobo pled guilty to reentry of a removed alien in 2015. His pre-

sentence investigation report (“PSR”) recommended a sixteen-level enhancement

under U.S.S.G. § 2L1.2(b)(1)(A)(i) because his prior Illinois conviction was for a

“drug trafficking offense.” The Application Notes to the Guidelines define “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 counterfeit substance) with intent to manufacture, import, export,

distribute, or dispense.” § 2L1.2, app. n.1(B)(iv).

      Lopez argued his prior conviction was not a drug trafficking offense because,

unlike the generic definition of drug trafficking, a conviction under the Illinois

statute does not require intent to engage in a commercial transaction. He also argued

the statute did not qualify because Illinois allows for a conviction for possession of

precursor ingredients or by-products of a controlled substance, even absent

possession of a usable final substance. The district court rejected these arguments,

applied the sixteen-level enhancement, and imposed a sentence of 46 months’

imprisonment. Lopez-Jacobo appeals his sentence.

                                           II

      We review de novo a district court’s determination that a prior offense merits a

sentencing enhancement under § 2L1.2. United States v. Torres-Romero, 537 F.3d

                                            2
1155, 1157 (10th Cir. 2008). “To determine whether a prior conviction qualifies as a

drug trafficking offense under § 2L1.2(b)(1)(A)(i), a district court must generally

follow the categorical approach.” United States v. Dominguez-Rodriguez, 817 F.3d

1190, 1194 (10th Cir. 2016) (quotation and alteration omitted). Under the categorical

approach, “a court does not look to the facts of the particular case, but rather to the

statute under which the defendant was convicted.” Id. (quotation omitted).

        If a defendant was convicted under a “divisible statute” that “sets out one or

more elements of the offense in the alternative,” a sentencing court may look to

certain documents to determine which alternative formed the basis of the prior

conviction. Descamps v. United States, 133 S. Ct. 2276, 2281-82 (2013). This

“modified approach merely helps implement the categorical approach when a

defendant was convicted of violating a divisible statute.” Id. at 2285. But under the

modified categorical approach, the analysis remains an “elements-based one,” id. at

2293, and a court may not look to the “facts underlying the prior convictions,” id. at

2287.

                                            A

        In determining whether a conviction triggers an enhancement under

§ 2L1.2(b)(1)(A)(i), “we assume that an enumerated offense in the Guidelines

definition of ‘drug trafficking offense’ refers to the generic, contemporary meaning

of that offense.” Dominguez-Rodriguez, 817 F.3d at 1195 (quotation and alteration

omitted). We must “ensure that the elements of that generic enumerated offense are

congruent with the elements of the defendant’s prior offense.” Id.

                                            3
      Lopez-Jacobo argues the generic definition of drug trafficking requires intent

to engage in a commercial transaction. In particular, he notes that in the context of

the Immigration and Naturalization Act (“INA”), the Supreme Court determined that

the generic definition of “illicit trafficking in a controlled substance” implies “some

sort of commercial dealing” for “remuneration.” Moncrieffe v. Holder, 133 S.Ct.

1678, 1693 (2013) (quotation omitted). Because the Illinois statute does not contain

a remuneration element, Lopez-Jacobo contends it does not qualify for the

enhancement.

      We rejected a virtually identical argument in Dominguez-Rodriguez, 817 F.3d

at 1195-96. Specifically, we held that the generic definition of drug trafficking only

requires knowing possession and intent to distribute. Id. at 1195. Moreover, we

expressly rejected the plaintiff’s argument that under Moncrieffe the generic

definition required remuneration. Id. at 1196-99. “In Moncrieffe, the Supreme

Court’s task was to determine whether the petitioner’s crime qualified as an

‘aggravated felony’ for purposes of the INA.” Id. at 1199. In Dominguez-

Rodriguez, in contrast, our task was “to determine whether Dominguez-Rodriguez’s

prior conviction qualified as a ‘drug trafficking offense’ under U.S.S.G. §

2L1.2(b)(1)(A).” Id. The difference is material, we observed, because unlike the

INA, § 2L1.2 “includes its own definition of ‘drug trafficking offense’” which

“obviates the need for us to . . . look to Moncrieffe.” Id. Thus, we held a prior

conviction does not need to contain a commercial or remunerative element to trigger

an enhancement under § 2L1.2(b)(1)(A)(i). Dominguez-Rodriguez 817 F.3d at 1199.

                                           4
Under Dominguez-Rodriguez, Lopez-Jacobo’s argument for a remuneration element

fails.

                                             B

         Lopez-Jacobo contends that § 570/401(c)(2) criminalizes conduct broader than

that which would be criminalized as a generic “drug trafficking offense.” He relies

on People v. Haycraft, 811 N.E.2d 747 (Ill. App. Ct. 2004), for the proposition that

Illinois would prosecute someone for “possession of a controlled substance” when that

person possessed only the innocent precursors to a controlled substance. Specifically,

Lopez-Jacobo relies on the Illinois court’s language that “[m]ethamphetamine is its

ingredients, i.e., anhydrous ammonia, pseudoephedrine, and lithium, combined in a

mixture, whether cooked to its final, marketable form or not.” Id. at 759 (italics omitted).

The court observed that the “defendant combined the methamphetamine ingredients into

the container; thus, the mixture in the container constituted a ‘substance containing

methamphetamine.’” Id. Lopez-Jacobo asserts this language establishes that Illinois

could have prosecuted him for possession of innocent precursors. But Lopez-Jacobo

stretches Haycraft too far. The Haycraft court noted that “methamphetamine was present

in the substances,” and samples of the substance were “later identified by a forensic

chemist as methamphetamine.” Id. at 753. Therefore, Haycraft was not prosecuted for

possession only of the innocent precursors—he actually possessed methamphetamine.

         Lopez-Jacobo similarly suggests that under People v. McCarty, 858 N.E.2d 15

(Ill. 2006), Illinois’ statute criminalizes possession of precursor ingredients for all



                                             5
controlled substances.2 We find this argument unconvincing for several reasons.

Importantly, McCarty did not hold that any single ingredient is itself a controlled

substance; rather, it held a “byproduct of the methamphetamine manufacturing

process” that “tested positive for the presence of methamphetamine” qualifies as a

“substance containing methamphetamine” even if it is not usable. 858 N.E.2d at 25-

26; see also Haycraft, 811 N.E.2d at 759 (noting a “forensic chemist later identified

[the mixture at issue] as methamphetamine”).3 Thus, the Illinois statute does not

criminalize purely innocuous precursor ingredients.

      Further, the federal Controlled Substances Act (“CSA”) accords with Illinois’

approach. See United States v. Martinez-Lugo, 782 F.3d at 198, 203 n.18 (5th Cir.

2015) (“The federal statute is . . . one source of the generic, contemporary meaning

of ‘possession with intent to distribute.’”). As we have previously observed, “[o]ne

searches in vain to find the words ‘marketable,’ ‘usable,’ or ‘consumable’ in the plain

language” of the CSA because “Congress did not enact these concepts into the

statutory scheme.” United States v. Richards, 87 F.3d 1152, 1158 (10th Cir. 1996)

(en banc). Instead, Congress criminalized possession of mixtures “containing a

      2
         At oral argument, Lopez-Jacobo argued for the first time that possession of
precursors to a cocaine analog, specifically, would be prohibited by the Illinois
statute. Any argument specific to cocaine analogs is waived. Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in
the opening brief are waived.”).
      3
         That a compound must test positive for a controlled substance finds support
in the fact that the statute at issue provided separate penalties for possession of “any
methamphetamine manufacturing chemical” with the intent to manufacture
methamphetamine. § 570/401(a)(6.6) (2000).

                                            6
detectable amount of a controlled substance.” Id. The Richards case concerned

essentially the same substance Lopez-Jacobo contends would qualify as an offense in

Illinois but not generically: a liquid solution used in the process of manufacturing

methamphetamine. Id. at 1153.4 We held that under the federal definition, “[l]iquid

byproducts containing methamphetamine” qualify. Richards, 87 F.3d at 1158.

       Moreover, although Lopez-Jacobo suggests that several states have expressly

held that a person cannot possess a controlled substance unless it is in a “usable”

form, three of the four cases he cites stand for the proposition that a person cannot

possess a controlled substance unless it is in usable quantities, not in usable form.

See State v. Donovan, 568 P.2d 1107, 1110 (Ariz. Ct. App. 1977); Harbison v. State,

790 S.W.2d 146, 151 (Ark. 1990); People v. Ormiston, 105 Cal. App. 4th 676, 682

(2003). Lopez-Jacobo claims that these cases nevertheless support his position. But

we read them as silent as to the possibility that possession of a large quantity of a

mixture containing a controlled substance might constitute an offense, even if not yet

in a usable form. For example, Harbison observed that possessing less than usable

quantities is not criminalized because “it cannot contribute to future . . . use of or

trafficking in drugs.” 790 S.W.2d at 151. In contrast, possessing large quantities of

       4
         Lopez-Jacobo argues that Richards is not informative because it held that
under the CSA the weight of a controlled substance attributable to a defendant
includes non-controlled substances intermixed with controlled substances, whereas
McCarty does not require that a controlled substance be present. Again, we reject
Lopez-Jacobo’s reading of McCarty. Although McCarty did not require possession
of final, usable methamphetamine, it squarely considered possession of liquids which
“tested positive for the presence of methamphetamine.” 858 N.E.2d at 26. Thus, a
controlled substance was present.

                                            7
uncooked methamphetamine can certainly contribute to future trafficking. These

cases thus do not stand for the proposition for which Lopez-Jacobo cites them, and he

does not provide additional support for his interpretation of the generic definition.5

      We conclude that Illinois’ prohibition on possession of mixtures containing

detectable amounts of controlled substances is not broader than the generic definition

of controlled substances. We thus reject Lopez-Jacobo’s argument that the district

court improperly applied the sixteen-level enhancement.6

                                            C

      Finally, Lopez-Jacobo contends the district court impermissibly considered the

facts underlying his prior conviction. But he misconstrues the district court’s

analysis. The district court looked to the specific subsection of the Illinois statute

under which Lopez-Jacobo was previously convicted, § 570/401(c)(2), which

prohibits possession with intent to manufacture or deliver “1 gram or more but less

than 15 grams of any substance containing cocaine, or an analog thereof.” This

application of the modified categorical approach was proper. See Descamps, 133 S.


      5
        To the extent Lopez-Jacobo suggests that Illinois criminalizes possession of
unmeasurable quantities of controlled substances, we note that § 570/401(c)(2)
required possession of at least one gram of cocaine or cocaine analog. Thus, an
element of his prior conviction was possession of a measurable amount of a
controlled substance. See Richardson v. United States, 526 U.S. 813, 817-18 (1999)
(an element of a crime is that which “a jury . . . [must] unanimously find[] that the
Government has proved”).
      6
         Lopez-Jacobo argues that the government waived any argument that the
Illinois definition of controlled substances accords with the generic definition. But
we may “affirm a lower court’s ruling on any grounds adequately supported by the
record.” United States v. Mabry, 728 F.3d 1163, 1166 (10th Cir. 2013).
                                            8
Ct. at 2281 (courts may look to indictment in applying modified categorical

approach).

      The Illinois statute contains alternative elements rather than alternative factual

means by which to satisfy the elements of the offense. See Mathis v. United States,

No. 15-6092, slip op. at 17 (U.S. June 23, 2016). “If statutory alternatives carry

different punishments, then . . . they must be elements.” Id. Because Illinois’

statutory alternatives carry different punishments, the subsections reflect alternative

elements. Compare § 570/401(a) (punishing possession of certain drugs and

quantities as Class X felonies), with § 570/401(c) (punishing possession of certain

substances as a Class 1 felonies); see also 730 Ill. Comp. Stat. 5/5-4.5-25, -30

(sentencing provisions by felony class). Moreover, “an indictment . . . could

indicate, by referencing one alternative term to the exclusion of all others, that the

statute contains a list of elements.” Mathis, slip op. at 18. The indictment

specifically charged a violation of subsection (c)(2).

                                           III

      The district court’s application of the sixteen-level sentencing enhancement is

AFFIRMED.



                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge



                                            9
