United States of America v. Tony Reyes

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TONY REYES,
Defendant-Appellant.
No. 15-30340
D.C. No.
1:14-cr-00123-SPW-1
MEMORANDUM*
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).
FILED
SEP 8 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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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