Submitted: September 27, 2019
from United States District Court for the Northern District
of Iowa - Ft. Dodge
GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
Ramon Santillan appeals the district
court's 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.
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).
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 Santillan pled guilty to Counts 1
and 4,  preserving the right to appeal the denial
of the motion to strike. The district court sentenced
Santillan to 300 months imprisonment.
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.
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 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.
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 Fed.Appx. 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 Fed.Appx. 80, 84-85 (3d
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 Fed.Appx. 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 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.
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 ...