NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS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 appeal s his sentence after pleading guilty to conspir acy to possess with intent to distribute a controlled substa nce 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 care er 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, CLER K U.S. COURT OF APPEAL S2

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 substa nce. 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

- 104 2 criminalized a broader swath of conduct than the federal definition, including mere conspiracy to possess

. F or purpos es of the categorical analysis where a defendant has been convicted of conspiracy to commit an offense, however, we have treated both th e 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) ; s ee, e. g. , Adams v. State , 79 P.3d 526, 528 (Wyo. 2003) (“After trial,3

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 , s ee 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 § 4B 1.1(a), and the district court was correct in applying the career

o ffender 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 f ind that Reyes was convicted of conspiring to deliver cocain e 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 co ntrolled substance requirement

. Wyoming Statute § 35

- 7

- 1031 (a)(ii) is similarly divisible

. For example, a s with the Calif ornia 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).