United States v. Franklin

• Decision Date: 13 September 2018
• Docket Number: No. 17-30011,17-30011
• Citation: 904 F.3d 793
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eric Quinn FRANKLIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

904 F.3d 793

UNITED STATES of America, Plaintiff-Appellee,

v.Eric Quinn FRANKLIN, Defendant-Appellant.

No. 17-30011

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 2018 Seattle, Washington

Filed September 13, 2018

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

Michael Symington Morgan (argued) and Gregory Gruber, Assistant United States Attorneys; Hellen J. Brunner, First Assistant United States Attorney; Annette L. Hayes, United States Attorney; United States Attorney's Office, Seattle, Washington; for Plaintiff-Appellee.

Before: Marsha S. Berzon, Stephanie Dawn Thacker,^* and Andrew D. Hurwitz, Circuit Judges.

BERZON, Circuit Judge:

We consider whether Washington's broad accomplice liability statute renders an offense under its drug trafficking law categorically broader than a "serious drug offense," as that term is defined in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(A).

I.

In September 2013, a jury convicted Eric Franklin of being a felon in possession of a firearm, 18 U.S.C. § 922(g), and committing several drug trafficking crimes. Franklin appealed his convictions and sentence. This court affirmed Franklin's convictions but remanded for resentencing, holding that the district court had not given Franklin an adequate self-representation advisory under Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

The district court resentenced Franklin to fifteen years' imprisonment on the felon-in-possession offense.¹ The court calculated that sentence as the statutory minimum under the ACCA. It reasoned that Franklin had "three previous convictions ... for a ... serious drug offense," 18 U.S.C. § 924(e)(1), because he was convicted in Washington state court of three counts of unlawful delivery of a controlled substance, Wash. Rev. Code § 69.50.401.² Franklin timely appealed.

II.

We start—and end—with Franklin's claim that Washington accomplice liability is a mismatch for the accomplice liability incorporated into the ACCA.

A .

The ACCA imposes a fifteen-year mandatory minimum sentence on individuals convicted of being felons in possession of a firearm who have three prior convictions for "a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). A "serious drug offense" is

(i) an offense under the Controlled Substances Act ( 21 U.S.C. 801 et seq. ), the Controlled Substances Import and Export Act ( 21 U.S.C. 951 et seq. ), or chapter 705 of title 46, for which a maximum term of imprisonment of ten years or more is prescribed by law; or

(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act ( 21 U.S.C. 802 ) ), for which a maximum term of imprisonment of ten years or more is prescribed by law ....

18 U.S.C. § 924(e)(2)(A).

Federal courts conduct a categorical inquiry into whether a prior state conviction qualifies as an ACCA predicate under § 924(e). Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2247–48, 195 L.Ed.2d 604 (2016) ; Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under that approach, "A prior conviction qualifies as an ACCA predicate only if, after comparing the elements of the statute forming the basis of the defendant's conviction with the elements of the generic crime—i.e., the offense as commonly understood[—]the statute's elements are the same as, or narrower than, those of the generic offense."

United States v. Jones , 877 F.3d 884, 887 (9th Cir. 2017) (internal alterations and quotation marks omitted). If the elements of the state crime are broader than those of the generic crime, there is no categorical match and, absent application of the modified categorical approach,³ the state crime cannot serve as a predicate conviction under the ACCA. See United States v. Strickland , 860 F.3d 1224, 1226–27 (9th Cir. 2017).

Under the categorical approach, we consider accomplice liability as an element when comparing the reach of state crimes and generic crimes. As the Supreme Court explained in Gonzalez v. Duenas-Alvarez , "one who aids or abets a [crime] falls, like a principal, within the scope of th[e] generic definition" of that crime. 549 U.S. 183, 189, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). To take theft as an example, "the criminal activities of ... aiders and abetters of a generic theft must themselves fall within the scope of the term ‘theft’ in the federal statute." Id. at 190, 127 S.Ct. 815. If a state's accomplice liability has "something special" about it, and thus "criminalizes conduct" that the comparable generic accomplice liability and the underlying crime, taken together, do not, there is no categorical match. Id. at 191, 127 S.Ct. 815 (emphasis omitted).

B.

We recently considered, in United States v. Valdivia-Flores , 876 F.3d 1201 (9th Cir. 2017), whether Washington's accomplice liability statute renders its drug trafficking law categorically broader than a federal drug trafficking equivalent. Valdivia-Flores held that the Washington accomplice liability law was too broad, and thus that a conviction under Wash. Rev. Code § 69.50.401 does not categorically constitute an "illicit trafficking" offense and is not an "aggravated felony" under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43)(B).⁴ Valdivia-Flores , 876 F.3d at 1210.

To give shape to what constituted aiding and abetting "illicit trafficking" under the INA, Valdivia-Flores looked to federal criminal law. Id. at 1207. Specifically, it adopted the federal aiding and abetting standard, which requires the government to prove an accomplice has "specific intent to facilitate the commission of a crime by someone else." Id. (quoting United States v. Garcia , 400 F.3d 816, 819 (9th Cir. 2005) ). Washington law, by contrast, requires only that the government prove a person "[w]ith knowledge that it will promote or facilitate the commission of the crime, ... solicits, commands, encourages, or requests [the principal] to commit it; or aids or agrees to aid [the principal] in planning or committing it." Wash. Rev. Code § 9A.08.020(3)(a)(i)–(ii) (emphasis added).

Specific intent and knowledge are distinct in this context. "Intentionally abetting the commission of a crime involves a more culpable state of mind than knowingly doing so, and it is unlikely that Congress intended the generic ‘drug trafficking’ listed in the INA to reach the less culpable conduct that the Washington statute criminalize[s]." United States v. Verduzco-Rangel , 884 F.3d 918, 923 n.3 (9th Cir. 2018). So, Validivia-Flores held, "[b]ecause the Washington statute does criminalize conduct that would not constitute a drug offense under federal law—due to the distinct aiding and abetting definitions—it is overbroad." 876 F.3d at 1209 n.3.

Valdivia-Flores cuts our path here. In that case, we reiterated that accomplice liability is woven into the fabric of all generic crimes. Id. at 1207. We looked to federal criminal law’s concept of accomplice liability—including the required intent mens rea—to sketch the contours of a generic drug trafficking crime. Id. And we held that it is possible to violate the Washington statute as an accomplice with knowledge but not intent concerning the perpetrator's criminal activity. Id.

Franklin maintains that the same conclusion follows with regard to whether the same Washington statute at issue in Valdivia-Flores is a categorical match for the ACCA "serious drug offense," i.e. , "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance." 18 U.S.C. § 924(e)(2)(A). So our question is: Is there any pertinent difference between the "serious drug offense" description in the ACCA and the generic "illicit trafficking" described in the statute analyzed in Valdivia-Flores that yields a different result here on the categorical match issue?

The government puts forth a variety of arguments as to why Valdivia-Flores does not control Franklin's case. None is persuasive.

C.

The government first contends we should not look to federal law to define the generic crime of aiding and abetting a "serious drug offense." It maintains that Valdivia-Flores took its definition of accomplice liability from federal law only because the generic crime as defined in the INA arose out of a federal criminal statute, and that, here, a "serious drug offense" arises only out of state law.

Valdivia-Flores was not so limited. It relied on federal law to supply accomplice liability elements for the entire "aggravated felony" definition at issue—a definition that refers both to federal drug crimes and to state law drug crimes that constitute "illicit trafficking." See 8 U.S.C. § 1101(a)(43)(B) (defining a drug trafficking aggravated felony as "illicit trafficking in a controlled substance (as defined in section 802 of Title 21 ), including a drug trafficking crime (as defined in section 924(c) of Title 18 )" (emphasis added) ); see also Verduzco-Rangel , 884 F.3d at 921 (describing the "two possible routes for a state drug felony to qualify as a drug trafficking aggravated felony"). Nowhere did Valdivia-Flores suggest that its holding was limited to one portion of this definition. Rather, Valdivia-Flores held repeatedly and without limitation that the Washington drug trafficking statute "does not qualify as an aggravated felony under the categorical approach." 876 F.3d at 1210 ; see also id. at 1203, 1206, 1209.

Moreover, under the established methodology for applying the categorical approach to recidivism statutes, analogous federal law is always at least one aspect of the inquiry into the meaning of the description of a state offense in a federal statute. Here, that description is "serious drug offense," which, as Duenas-Alvarez held, and Valdivia-Flores reiterated, necessarily...