United States v. House

• Decision Date: 15 April 2022
• Docket Number: 20-30169
• Parties: United States of America, Plaintiff-Appellee, v. Robert Anthony House, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

United States of America, Plaintiff-Appellee, v. Robert Anthony House, Defendant-Appellant.

No. 20-30169

United States Court of Appeals, Ninth Circuit

April 15, 2022

Submitted November 10, 2021 ^[*] Portland, Oregon

Appeal from the United States District Court No. 1:19-cr-00096-SPW-1 for the District of Montana Susan P. Watters, District Judge Presiding

Evangelo Arvanetes, Assistant Federal Defender; Anthony R Gallagher, Federal Defender; Federal Defenders of Montana, Billings, Montana; for Defendant-Appellant.

Karla E. Painter, Assistant United States Attorney; Leif M. Johnson, Acting United States Attorney; United States Attorney's Office, Billings, Montana; for Plaintiff-Appellee.

Before: Susan P. Graber and Morgan Christen, Circuit Judges, and George H. Wu, ^[**] District Judge.

SUMMARY ^[***]

Criminal Law

The panel affirmed in part, reversed in part, and remanded for resentencing in a case in which Robert Anthony House pleaded guilty to being a prohibited person in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and (g)(3).

At sentencing, the district court ruled that two of House's prior felony convictions-a 2007 conviction under Montana Code Annotated § 45-9-103 for criminal possession of dangerous drugs with intent to distribute ("2007 marijuana conviction") and a 2013 conviction under Montana Code Annotated §§ 45-2-302 and 45-9-101 for accountability as to criminal distribution of dangerous drugs ("2013 cocaine conviction")-qualified as "controlled substance offenses" under USSG § 4B1.2(b). The district court, in turn, applied the enhancement in USSG § 2K2.1(a)(2).

The panel accepted the government's concession that United States v. Bautista, 989 F.3d 698 (9th Cir. 2021), is controlling as to the sentencing enhancement based on the 2007 marijuana conviction, and that this court should remand for resentencing without treating the marijuana conviction as a qualifying offense.

As to whether the 2013 cocaine conviction is a qualifying prior controlled substance offense, House raised two arguments.

House first argued that "the plain language of the § 4B1.2 guideline and commentary definition of a controlled substance offense does not include offers to engage in prohibited conduct," while Montana's accountability statutes do, rendering the latter categorically overbroad. Because it was bound by United States v. Crum, 934 F.3d 963 (9th Cir. 2019) (per curiam), the panel held that although Montana's accountability statutes include offers to engage in prohibited conduct, they are not rendered categorically overbroad with respect to §§ 4B1.2(b) and 2K2.1(a).

House argued, second, that Montana's drug statute is categorically overbroad because its definition of cocaine includes substances that are either not set forth in the federal definition and/or are specifically excluded. Because House raises new arguments on appeal, the panel reviewed the district court's sentencing calculation for plain error as to those contentions. The panel observed (1) that when the district court reached its decision that a cocaine conviction under Montana Code Annotated §§ 45-9-101 and 50-32-224(1)(d) could constitute a controlled substance offense under § 4B1.2(b), there was no (and there still is no) binding precedent to the contrary; and (2) that certain of the grounds for the district court's rulings were not rejected in binding precedent until after its sentencing decision. The panel concluded, accordingly, that the district court did not commit plain error with respect to the cocaine overbreadth issue.

Concurring, Judge Graber wrote separately to explain her views concerning overbroad state statutes. She noted that the general rule is that a state law cannot be considered broader than a federal law if the state law's breadth is imagined or theoretical. In her view, this court has distinguished between overbreadth that is "evident" from the statute's text, when a defendant may rely on the statutory language to establish the statute as overly inclusive, and overbreadth that is not "evident" from the text, when the party arguing for overbreadth must find a relevant case establishing a realistic probability of overbroad application.

Concurring, Judge Christen wrote separately because the complicated categorical approach has proven inordinately time consuming, and this court's prior consideration of Montana's cocaine statute may result in confusion regarding the methodology set forth in Taylor v. United States, 495 U.S. 575 (1990). She wrote that, in her view, the categorical approach employed in United States v. Holliday, 853 Fed.Appx. 53 (9th Cir. 2021), skipped an important step by taking the holdings from United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc), abrogated on other grounds as recognized by United States v. Stitt, 139 S.Ct. 399 (2018), and United States v. Bautista, 989 F.3d 698 (9th Cir. 2021), out of context.

Concurring, District Judge Wu wrote separately to specifically address the categorical/modified categorical analysis as it relates to the cocaine overbreadth issue in the context of Montana Code Annotated § 50-32-224(1)(d). He would apply the reasonable probability factor articulated in Gonzales v. Duennas-Alvarez, 549 U.S. 183 (2007), as further considered in Moncrieffe v. Holder, 569 U.S. 184 (2013), in initially determining whether the definition of cocaine in § 50-32-224(1)(d) is a categorical match with the federal regulatory definition at 21 C.F.R. § 13-08.12(b)(4).

OPINION

PER CURIAM

On January 23, 2020, Robert Anthony House pleaded guilty to two counts of being a "prohibited person" in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and (g)(3).^[1] At sentencing on August 5, 2020, the district court ruled that two of his prior felony convictions-a 2007 conviction under Montana Code Annotated section 45-9-103 for criminal possession of dangerous drugs (i.e., marijuana^[2]) with intent to distribute ("2007 marijuana conviction") and a 2013 conviction under Montana Code Annotated sections 45-2-302 and 45-9-101 for accountability as to criminal distribution of dangerous drugs (i.e., cocaine) ("2013 cocaine conviction")-qualified as "controlled substance offenses" under United States Sentencing Commission Guidelines Manual ("USSG") § 4B1.2(b). Over House's objections, the court applied the sentencing enhancement in USSG § 2K2.1(a)(2). House appeals. We affirm in part, reverse in part, and remand for resentencing.

I. APPLICABLE LAW

For context, we provide a brief overview of the convoluted law that has developed concerning the issues raised in this appeal.

USSG § 2K2.1(a)(2) assigns a base offense level of 24 to a defendant convicted under 18 U.S.C. § 922(g) if the defendant has previously sustained at least two felony convictions of either a "crime of violence" as defined in USSG § 4B1.2(a) or a "controlled substance offense" as defined in § 4B1.2(b). If the defendant has only one such prior conviction, the base offense level is 20. See § 2K2.1(a)(4). If the defendant has none, the base level is 14. See § 2K2.1(a)(6). USSG § 2K2.1(a) does not define what constitutes a "controlled substance offense," but Application Note 1 of the Commentary to § 2K2.1 states that it "has the meaning given that term in § 4B1.2(b) and Application Note 1 of the Commentary to § 4B1.2[.]" § 2K2.1 cmt. n.1. In turn, § 4B1.2(b) states:

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.

Application Note 1 of the Commentary to § 4B1.2 expands the prohibited conduct by providing that "'controlled substance offense' include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses."^[3]

To determine whether a prior state conviction qualifies as a controlled substance offense for purposes of the federal Sentencing Guidelines, we apply a three-step analysis. See United States v. Martinez-Lopez, 864 F.3d 1034, 1038 (9th Cir. 2017) (en banc); United States v. Figueroa-Beltran, 892 F.3d 997, 1001 (9th Cir. 2018). "First, we ask whether the state law is a categorical match with a federal drug trafficking offense." Martinez-Lopez, 864 F.3d at 1038 (citing Taylor v. United States, 495 U.S. 575, 599-600 (1990)). In this initial step,

we look only to the "statutory definitions" of the corresponding offenses. [Taylor, 495 U.S.] at 600. If a state law "proscribes the same amount of or less conduct than" that qualifying as a federal drug trafficking offense, then the two offenses are a categorical match. United States v. Hernandez, 769 F.3d 1059, 1062 (9th Cir. 2014) (per curiam). In that scenario, a conviction under state law automatically qualifies as a predicate drug trafficking offense-ending our analysis.

Martinez-Lopez, 864 F.3d at 1038; see also Crum, 934 F.3d at 964. The categorical-match analysis typically focuses on one or both of the following subjects (1) the criminal conduct necessary for the state trafficking conviction (i.e., the actus reus requirements), see, e.g., United States v. Rivera-Sanchez, 247 F.3d 905, 908-09 (9th Cir. 2001) (en banc) (comparing California's statute criminalizing the transportation of marijuana, which included solicitation offenses, with the federal Controlled Substances Act, which at that time did not), superseded on other grounds as recognized in Martinez-Lopez, 864 F.3d at 1038; or (2) the types or varieties of the substance that fall within the...