FILED

NOT FOR PUBLICATION

MAY 28 2024

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-50007

Plaintiff-Appellee, D.C. No.

8:21-cr-00155-JVS-1 v. DYLAN MACGREGOR COWAN, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Submitted May 17, 2024**

Pasadena, California Before: GOULD and N.R. SMITH, Circuit Judges, and HINDERAKER,*** District Judge.

*

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).

***

The Honorable John Charles Hinderaker, United States District Judge for the District of Arizona, sitting by designation.

Dylan MacGregor Cowan appeals the district court’s imposition of an 120- month sentence in connection with his plea of guilty to a single-count indictment charging him with possession with intent to sell fentanyl in the Santa Ana Jail. Cowan argues on appeal that the district court improperly applied the career- offender enhancement under § 4B1.2(b) of the United States Sentencing Guidelines because California’s controlled-substance statute under which his predicate offense was charged, for possession of methamphetamine, is overbroad as to the federal Controlled Substances Act (CSA). We review de novo whether a prior conviction is a “controlled substance offense” under the Guidelines. United States v. Leal-Vega, 680 F.3d 1160, 1163 (9th Cir. 2012). We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.

Cowan argues on appeal that United States v. Rodriguez-Gamboa is not binding because Cowan’s text-based overbreadth argument was not before us in Rodriguez-Gamboa. 972 F.3d 1148 (9th Cir. 2020). Rodriguez-Gamboa said: “Because we hold, as a matter of law, that California’s definition of methamphetamine is a categorical match to the definition under the federal CSA, district courts confronting the issue in the future need not repeat what occurred in this case.” Id. at 1154 n.5. There, the California law prohibiting the “sale of both the geometric and optical isomers of methamphetamine” was a categorical match

2 to the federal law even though the federal law “outlaw[ed] possession only of methamphetamine’s optical isomers.” Id. at 1149–50. This was so because, chemically, there was no such thing as a geometric isomer of methamphetamine. Id. at 1150. Therefore, there was no reasonable possibility that California would prosecute anyone for possession of a geometric isomer. Id. at 1154.

We decline to read Rodriguez-Gamboa as holding only that California’s CSA statute is a categorical match because of the chemical structure of methamphetamine, but as leaving open the possibility that it is not a categorical match due to other arguments.1 Rodriguez-Gamboa stated unequivocally that “as a matter of law” the statutes were a categorical match and did not limit its holding to its facts. Id. at 1154 n.5. It accordingly binds Cowan despite his text-based arguments that California’s statute is overbroad as to the federal CSA.

Although we articulated an exception to this holding for a defendant who “point[s] to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues,” id. (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)), Cowan has not done so on appeal; he only argues that these analogues exist. Therefore, the district court did

1

This is dispositive, so we decline to reach Cowan’s other arguments on appeal.

3 not err in using Cowan’s prior methamphetamine offenses under California law to apply the career-offender enhancement, so Cowan’s sentence is

AFFIRMED.

4