NOT FOR PUBLICATION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
2 

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, 
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, 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).