The Ninth Circuit has certified the following questions to the California Supreme Court: 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?
“If the California Supreme Court concludes that the state may prove a § 11378 charge for possession of a specified listed controlled substance (e.g., methamphetamine) by showing the defendant possessed either the actual specified listed substance or an analog of that substance, then Defendants would prevail. We would conclude that § 11378 is “both overbroad and indivisible” at step two, and “a prior conviction under that statute will never qualify as a predicate . . . offense under the federal sentencing guidelines.” But if the California Supreme Court concludes that the state must prove a § 11378 charge for possession of a specified listed controlled substance by showing the defendant possessed that actual substance and not an analog of that substance, then we will affirm the sentences.”
Thus, the resolution of this question could impact the immigration consequences of many different California drug convictions.
The full text of United States v. Soto can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/01/08/24-3903.pdf