United States v. Brown

• Decision Date: 16 January 2018
• Docket Number: No. 16-30218,16-30218
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael N. BROWN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

879 F.3d 1043

UNITED STATES of America, Plaintiff–Appellee,
v.
Michael N. BROWN, Defendant–Appellant.

No. 16-30218

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 2, 2017, Seattle, Washington
Filed January 16, 2018

Davina T. Chen (argued), Glendale, California, for Defendant–Appellant.

Amy Jaquette (argued), Assistant United States Attorney; Annette L. Hayes, United States Attorney; United States Attorney's Office, Seattle, Washington; for Plaintiff–Appellee.

Before: Kim McLane Wardlaw, Richard R. Clifton, and John B. Owens, Circuit Judges.

Concurrence by Judge Owens

CLIFTON, Circuit Judge:

Defendant Michael N. Brown appeals the district court's sixty-month sentence for being a felon in possession of a firearm. In calculating the appropriate range under the Sentencing Guidelines, the district court determined that a base offense level of twenty applied because Brown's previous conviction for drug conspiracy under Washington state law qualified as a "controlled substance offense." We conclude that the conviction does not so qualify because the Washington drug conspiracy statute is not a categorical match to conspiracy under federal law. We reverse and remand for resentencing.

I. Background

Brown pled guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing, the district court held, over Brown's objection and lacking precedent from this court resolving the issue, that Brown's 2005 conviction by guilty plea for conspiracy to distribute methamphetamine in Washington state was a "controlled substance offense" for purposes of U.S.S.G. § 2K2.1(a)(4)(A). The district court calculated a Sentencing Guidelines range of sixty-three to seventy-eight months. The district court sentenced Brown to sixty months of incarceration and three years of supervised release. Brown timely appealed.

II. Discussion

Brown argues that the district court erred in calculating his Sentencing Guidelines range. Specifically, Brown contends that the Washington drug conspiracy statute does not qualify as a controlled substance offense under the Sentencing Guidelines because it is overbroad. The reason, he argues, is that Washington law allows for a conspiracy conviction when the only other party is a law enforcement officer or informant who does not actually intend to take part in the conspiracy. Those facts would not support a conviction for conspiracy under federal law.

To determine whether a prior state conviction is a controlled substance offense for purposes of the Sentencing Guidelines, federal courts employ the categorical approach set forth in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under the categorical approach, we are concerned only with the fact of conviction and the statutory definition of the underlying offense. Id. at 600, 110 S.Ct. 2143. "If a state law proscribes the same amount of or less conduct than that qualifying [under federal law], then the two offenses are a categorical match."

879 F.3d 1047

United States v. Martinez–Lopez , 864 F.3d 1034, 1038 (9th Cir. 2017) (en banc) (internal quotation marks omitted). But "[i]f the statute of conviction sweeps more broadly than the generic crime, a conviction under that law cannot categorically count as a qualifying predicate, even if the defendant actually committed the offense in its generic form." United States v. Hernandez , 769 F.3d 1059, 1062 (9th Cir. 2014) (per curiam) (alterations incorporated) (internal quotation marks omitted).¹

A. Standard of Review

In sentencing appeals, "we review the district court's identification of the correct legal standard de novo and the district court's factual findings for clear error." United States v. Gasca–Ruiz , 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc). Further, "as a general rule, a district court's application of the Sentencing Guidelines to the facts of a given case should be reviewed for abuse of discretion." Id.

There is an exception to that general rule, however, when it comes to application of the categorical approach, because under the categorical approach "[n]othing turns on the particulars of the defendant's own prior offense." Id. at 1174. "[E]ither all convictions under a particular statute qualify or none do." Id. (citing Descamps , 133 S.Ct. at 2287 ). The issue in Gasca–Ruiz was whether a prior conviction qualified as a "crime of violence," and we concluded that "determining whether a particular conviction qualifies as a crime of violence is akin to formulating a rule of general application, a matter properly reviewed de novo ." Id.

The same reasons for applying de novo review to determinations of whether a prior conviction is a "crime of violence" also apply to whether a prior conviction is a "controlled substance offense." Though a more searching standard of review in the instant case does not affect the outcome of this case, we review the district court's determination of whether Brown's prior conviction was a controlled substance offense de novo.

B. Application of the Categorical Approach

U.S.S.G. § 2K2.1(a)(4)(A) provides a base offense level of twenty if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense." § 2K2.1(a)(4)(A). The definition of "controlled substance offense" is the same as that provided in U.S.S.G. § 4B1.2(b). § 2K2.1 cmt. n.1. Section 4B1.2 explains:

The term "controlled substance offense" means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

§ 4B1.2(b). Here, the relevant offense was Brown's 2005 state court conviction for

879 F.3d 1048

conspiracy to deliver methamphetamine in violation of RCW §§ 69.50.401(1) and 69.50.407. Under Washington state law, for sentencing purposes the offense was "unranked," with a standard sentence of zero to twelve months.

Under federal law, a defendant cannot be convicted of conspiracy if the only alleged coconspirator is a federal agent or informant. See United States v. Lo , 447 F.3d 1212, 1225 (9th Cir. 2006) ("[T]he agreement in a conspiracy cannot be established with evidence that the defendant had an agreement with a government informer.").

The Revised Code of Washington includes both a general conspiracy statute, located in Title 9A of the Criminal Code, and a separate statute for drug conspiracy, located in Title 69, pertaining to Food, Drugs, Cosmetics, and Poisons. The general conspiracy statute states: "A person is guilty of criminal conspiracy when, with intent that conduct constituting a crime be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement." RCW § 9A.28.040(1). Subsection (2)(f) of the same section of the Criminal Code provides that "[i]t shall not be a defense to criminal conspiracy that the person or persons with whom the accused is alleged to have conspired ... [i]s a law enforcement officer or other government agent who did not intend that a crime be committed." RCW § 9A.28.040(2)(f).

The Washington drug conspiracy statute provides: "Any person who attempts or conspires to commit any offense defined in this chapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy." § 69.50.407. The terms "conspires" and "conspiracy" are not defined within this section or anywhere in Title 69 of the Revised Code of Washington. A section in the Criminal Code states that its provisions may apply to offenses defined in other titles: "The provisions of this title shall apply to any offense committed on or after July 1, 1976, which is defined in this title or the general statutes, unless otherwise expressly provided or unless the context otherwise requires, and shall also apply to any defense to prosecution for such an offense." RCW § 9A.04.010(2).

The important question for this case is whether the definition of conspiracy within the Criminal Code, including the qualification in subsection (2)(f), applies to the drug conspiracy offense defined in Title 69. We conclude that it does. As a...