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NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10503

Plaintiff-Appellee, D.C. No. 

3:16-CR-003-MMD-WGC

v. 

RICHARD E. TURNER, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court

for the District of Nevada

Miranda M. Du, District Judge, Presiding

Argued and Submitted November 16, 2017

San Francisco, California

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

DEC 12 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Before: GOULD, MURGUIA, Circuit Judges, and FREUDENTHAL,

** Chief 

District Judge

Defendant Richard Turner appeals from the district court’s judgment and 

challenges the 46-month sentence imposed following his guilty plea conviction for

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and § 

924(a)(2). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.

On appeal, Turner first argues the district court improperly based his sentence 

on the need for education and treatment in violation of Tapia v. United States, 564 

U.S. 319 (2011). Turner failed to raise this claim with the district court. We review 

for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th

Cir. 2010), and conclude there is none. The district court recognized Turner’s need 

for educational training and treatment as a component of the sentencing factors in 

18 U.S.C. § 3553(a)(2)(D). However, the record does not support Turner’s claim 

that the district court imposed or lengthened Turner’s sentence to promote education 

or treatment. See, Tapia, 564 U.S. at 330.

Turner also challenges the district court’s finding that Nevada Revised Statute 

(“NRS”) § 453.321 is categorically a controlled substance offense. Turner failed to 

raise all of his current arguments before the district court, so we review for plain 

error. Valencia-Barragan, 608 F.3d at 1108. The district court plainly erred by 

 

** The Honorable Nancy D. Freudenthal, Chief United States District 

Judge for the District of Wyoming, sitting by designation. 
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finding NRS § 453.321 is categorically a “controlled substance offense” under the 

sentencing guidelines. Nevada Revised Statute § 453.321 covers substances not 

contained in the federal Controlled Substances Act. “[I]t is undisputed that Nevada 

law lists at least some substances that are not on the federal list, compare 21 U.S.C. 

§ 802 with Nev. Admin. Code §§ 453.510–453.550 (listing Datura, hydrogen iodide 

gas, human growth hormone, and Carisoprodol, as controlled substances).” 

Madrigal-Barcenas v. Lynch, 797 F.3d 643, 645 (9th Cir. 2015) (discussing 

Nevada’s possession of paraphernalia statute, which contains the same drug 

schedules as NRS § 453.321). For these reasons, NRS § 453.321 is overbroad and 

is not categorically a controlled substance offense. We remand this matter back to 

the district court to determine in the first instance whether NRS § 453.321 is 

divisible and, if necessary, to apply the modified categorical approach. 

Having held there was a procedural error, we do not reach Turner’s claim that 

his sentence was substantively unreasonable. United States v. Carty, 520 F.3d 984, 

993 (9th Cir. 2008) (“On appeal, we first consider whether the district court 

committed significant procedural error, then we consider the substantive 

reasonableness of the sentence.”) (citation omitted). 

VACATED AND REMANDED.