              United States Court of Appeals
                         For the Eighth Circuit
                     ___________________________

                             No. 18-3182
                     ___________________________

                           United States of America

                     lllllllllllllllllllllPlaintiff - Appellee

                                        v.

                             Joe Ramon Santillan

                   lllllllllllllllllllllDefendant - Appellant
                                   ____________

                  Appeal from United States District Court
                for the Northern District of Iowa - Ft. Dodge
                               ____________

                      Submitted: September 27, 2019
                        Filed: December 9, 2019
                             ____________

Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
                         ____________


SHEPHERD, Circuit Judge.
      Joe Ramon Santillan appeals the district court’s1 denial of his motion to strike
the government’s 21 U.S.C. § 851 notice of sentencing enhancement alleged in the
indictment. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

                                          I.

       On November 30, 2017, a grand jury indicted Santillan on four counts,
including one count of conspiracy to distribute 500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine which contained 50
grams or more of actual methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), and 846 (Count 1). The indictment included a notice of sentencing
enhancement, as required by 21 U.S.C. § 851, in Count 1. Santillan’s 2008 California
felony drug conviction for possession of marijuana for sale in violation of Cal. Health
& Safety Code § 11359 established the basis for the sentencing enhancement pursuant
to 21 U.S.C. § 841(b)(1)(A).

       In 2016, California voters enacted Proposition 64, which amended § 11359 by
reclassifying possession of marijuana for sale as a misdemeanor for all purposes,
punishable by not more than six months imprisonment. 2016 Cal. Legis. Serv. Prop.
64. On November 27, 2017, after his arrest but prior to being indicted, Santillan filed
a petition for redesignation of his California felony drug conviction pursuant to
Proposition 64. The Superior Court of California in Los Angeles County
redesignated Santillan’s offense to a misdemeanor in December 2017. Based on the
redesignation, Santillan moved to strike the § 851 notice in the indictment, arguing
that the California conviction did not qualify as a felony drug offense for purposes
of the sentencing enhancement. The district court denied Santillan’s motion, and



      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

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Santillan pled guilty to Counts 1 and 4,2 preserving the right to appeal the denial of
the motion to strike. The district court sentenced Santillan to 300 months
imprisonment.

                                         II.

        Santillan argues that his California conviction does not qualify as a prior
conviction for a “felony drug offense” as required for an enhanced sentence pursuant
to 21 U.S.C. § 841(b)(1)(A) (2010). “We review the district court’s decision on the
prior drug conviction enhancement de novo because it is a matter of statutory
interpretation.” United States v. Funchess, 422 F.3d 698, 703 (8th Cir. 2005). “[T]he
question of what constitutes a ‘prior conviction’ for purposes of § 841(b)(1)(A) is a
matter of federal, not state, law. . . .” United States v. Craddock, 593 F.3d 699, 701
(8th Cir. 2010) (per curiam). For the purposes of § 841, felony drug offense is
defined as “an offense that is punishable by imprisonment for more than one
year. . . .” 21 U.S.C. § 802(44). The version of § 841 in effect at the time of
Santillan’s indictment and conviction provided that any person who commits a
violation of § 841 “after a prior conviction for a felony drug offense has become
final . . . shall be sentenced to a term of imprisonment which may not be less than 20
years. . . .” 21 U.S.C. § 841(b)(1)(A). Without a prior felony conviction,
Santillan’s mandatory minimum sentence would have been 10 years. Id.

      Santillan argues that his California conviction is not a “felony drug offense”
because it was redesignated as a misdemeanor. When Santillan was convicted in
2008, California classified possession of marijuana for sale as a felony. Cal. Health
& Safety Code § 11359 (1977); Cal. Penal Code § 17 (1998). Because Proposition
64 reclassified the offense in 2016 and Santillan’s conviction was redesignated as a


      2
       Count 4 of the indictment charged possession of firearms in furtherance of a
drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).

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misdemeanor prior to sentencing, Santillan argues that his California conviction could
not serve as the basis for the § 841 sentencing enhancement. Because we find
persuasive the reasoning of the Ninth Circuit’s decision in United States v. Diaz, 838
F.3d 968 (9th Cir. 2016), we disagree.

       In Diaz, the Ninth Circuit held that Proposition 47, which similarly reclassified
certain felony convictions as misdemeanors, did “not change the historical fact that
[the defendant] violated § 841 ‘after two or more prior convictions for a felony drug
offense [had] become final.’” Id. at 971 (second alteration in original) (quoting 21
U.S.C. § 841(b)(1)(A)). The court explained that the inquiry into whether a § 841
enhancement applies is “backward-looking[,]” requiring only that the prior conviction
be “final.” Id. at 973. Thus, “‘[t]he question posed by § 841(b)(1)(A) is whether the
defendant was previously convicted, not the particulars of how state law later might
have’ permitted relief from the defendant’s state conviction.” Id. at 973-74 (quoting
United States v. Dyke, 718 F.3d 1282, 1293 (10th Cir. 2013)); accord United States
v. McGee, 760 F. App’x 610, 614-16 (10th Cir.), cert. denied, 140 S. Ct. 218 (2019);
United States v. Sanders, 909 F.3d 895, 899-904 (7th Cir. 2018), cert. denied, 139 S.
Ct. 2661 (2019); and United States v. London, 747 F. App’x 80, 84-85 (3d Cir. 2018).

      This Court applies the same “historical fact” approach to sentencing
enhancements under 21 U.S.C. § 841(b)(1)(A): a prior conviction qualifies as a
“felony drug offense” if it was punishable as a felony at the time of conviction. E.g.,
United States v. Williams, 616 F.3d 760, 766 n.3 (8th Cir. 2010) (noting that initial
plea to offense meeting the definition of felony under federal law satisfies
enhancement even if state law later changes conviction to misdemeanor); Hirman v.
United States, 613 F.3d 773, 776-77 (8th Cir. 2010) (affirming application of career
offender enhancement even though state law reclassified defendant’s predicate felony
convictions as misdemeanors); and United States v. Burdock, 355 F. App’x 81, 82-83
(8th Cir. 2009) (per curiam) (applying offense’s punishment at time of original
conviction, instead of that under current law, to determine whether offense qualifies

                                          -4-
as felony drug offense). Here, Santillan was convicted of possession of marijuana for
sale in the Superior Court for Lancaster County, California in 2008, which was a
felony under California law at that time. Thus, his California conviction qualifies as
a “felony drug offense” notwithstanding the fact it was later redesignated as a
misdemeanor.

       Santillan also argues that because Proposition 64 reclassified possession of
marijuana for sale in 2016, he did not have a “final” conviction for a felony drug
offense when he committed the federal drug offense in 2017. However, the fact that
California amended the statute of conviction in 2016 “does not alter the historical fact
of the [prior state] conviction becoming final—which is what § 841 requires.” Diaz,
838 F.3d at 974 (alteration in original) (internal quotation marks omitted). Because
Santillan was convicted of a felony and sentenced under California law in 2008, his
California conviction was “final” at the time of his federal drug offense in 2017. To
the extent Santillan raises other arguments as to why the California conviction may
not serve as a predicate offense, those arguments are foreclosed by our reliance on
Diaz.

      For the foregoing reasons, we affirm.
                      ______________________________




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