When the Ninth Circuit makes a rule 8.548 request for the Supreme Court to answer a question of California law, it’s almost always in a civil case. Today’s request in U.S. v. Soto is an exception. In its order, the federal appeals court asks the Supreme Court to answer:
When a defendant is charged with possession of a listed controlled substance under California Health & Safety Code § 11378, must the state prove, and must the jury unanimously agree, that the defendant possessed the actual listed controlled substance, and not an analog of that substance as defined under California Health & Safety Code § 11401? Or may the jury convict if it finds the state has proven the defendant possessed either the actual controlled substance or an analog of that substance, without unanimous agreement as to which? [Links added.]
Claiming that “both sides make sensible arguments” and that there is “no clear resolution to this dispositive question under existing California precedent,” the Ninth Circuit says the answer to the question will determine whether the defendants in the case “are subject to the career-offender sentencing enhancement, U.S.S.G. [United States Sentencing Guidelines] § 4B1.1, because of their prior” section 11378 convictions. That court explains, “If the state must prove that a defendant possessed the actual listed controlled substance charged, and not an analog of that substance, then Defendants would be subject to the career offender enhancement due to their prior § 11378 convictions. But if a controlled substance analog is an alternative means of proving that a defendant possessed the listed controlled substance charged, then Defendants would not be subject to the career-offender enhancement.”
Video of the Ninth Circuit Soto oral argument is here.
The only other criminal-related case we can think of that the Ninth Circuit has referred to the Supreme Court is Robinson v. Lewis (2020) 9 Cal.5th 883 (see here).
The Supreme Court should let the Ninth Circuit know by early March — give or take — whether it will answer the question. The Supreme Court historically says “yes” in most cases, but it has gotten a bit pickier of late. It has turned down two of the last four Ninth Circuit requests (not counting one other pending request). In the long run, however, the court has been extremely accommodating, having granted 22 of the last 25 requests (again, not counting the other pending request), dating back to July 2018. Before the most recent rejections (in August 2023 and April 2024), the lone denial over the past five years had been in October 2019.
Related:
Asked and answered: California Supreme Court responses to Ninth Circuit questions
The constitutionality of the Supreme Court answering the Ninth Circuit’s legal questions
Ask not what the Supreme Court can do for the Ninth Circuit
Justice Kruger and Judge Owens talk about the Supreme Court answering Ninth Circuit questions
The shadow docket . . . of California’s Supreme Court, part 2
