United States v. House

• Decision Date: 15 April 2022
• Docket Number: 20-30169
• Citation: 31 F.4th 745
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Anthony HOUSE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

31 F.4th 745

UNITED STATES of America, Plaintiff-Appellee,

v.Robert Anthony HOUSE, Defendant-Appellant.

No. 20-30169

United States Court of Appeals, Ninth Circuit.

Submitted November 10, 2021^* Portland, Oregon

Filed April 15, 2022

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.

Per Curiam Opinion;

Concurrence by Judge Graber ;

Concurrence by Judge Christen ;

Concurrence by Judge Wu

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. , marijuana² ) 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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). In this initial step,

we look only to the "statutory definitions" of the corresponding offenses. [ Taylor , 495 U.S.] at 600, 110 S.Ct. 2143. 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 definition of the outlawed drug (i.e. , the scope of the designated controlled substances), see, e.g. , United States v. Bautista , 989 F.3d 698, 704–05 (9th Cir. 2021) (comparing an Arizona criminal statute that included hemp in its definition of marijuana with the federal Controlled Substances Act, which was amended in 2018 to exclude hemp from the federal definition of marijuana).

If there is not a categorical match, we proceed to the second step and consider whether the state statute is "divisible"—i.e. , whether it "sets out one or more elements of the offense in the alternative." Martinez-Lopez , 864 F.3d at 1038 (quoting Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ). "A single statute may list elements in the alternative, and thereby define multiple crimes." Mathis v. United States , 579 U.S. 500, 136 S. Ct. 2243, 2249, 195 L.Ed.2d 604 (2016).

If there is not a categorical match but the state statute is divisible, we proceed to the third step of the analysis and apply the modified categorical approach, where we examine judicially noticeable documents of conviction "to determine which statutory phrase was the basis for the conviction." Descamps , 570 U.S. at 263, 133 S.Ct. 2276 (quoting Johnson v. United States , 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ). If the defendant pleaded to (or was found guilty of) the elements that constitute a federal drug trafficking crime, "the prior state conviction may serve as a predicate offense under the sentencing guidelines." Martinez-Lopez , 864 F.3d at 1039.

The Supreme Court has identified an additional factor for courts to consider in the categorical/modified categorical analyses. In Gonzales v. Duenas-Alvarez , 549 U.S. 183, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007), the Court stated:

[I]n our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic probability, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.

Id. at 193, 127 S.Ct. 815. We have applied the Duenas-Alvarez 's holding on several occasions. See, e.g. , United States v. Rodriguez-Gamboa , 972 F.3d 1148, 1150 (9th Cir. 2020) (concluding that California's statute prohibiting possession for sale of both the geometric and optical isomers of methamphetamine was not categorically overbroad—even though the federal statute outlaws only possession of methamphetamine's optical isomers—because there was "unrebutted expert testimony ... that there is no such thing as a geometric isomer of methamphetamine"); United States v. Perez , 932 F.3d 782, 788–89 (9th Cir. 2019) (holding that a California statute criminalizing intentional use of physical force that results in serious bodily injury was a crime of violence even though the defendant found two state appellate decisions that "dream[ed] up unusual scenarios" in which a non-violent act could conceivably inflict substantial bodily injury (alterations in original) (internal quotation marks omitted)), cert. denied , ––– U.S. ––––, 140 S. Ct. 2723, 206 L.Ed.2d 856 (2020).

II. BACKGROUND

The government recommended a base offense level of 24 under USSG § 2K2.1(a)(2) because House had two prior felony convictions for controlled substance offenses under § 4B1.2(b). In his sentencing memorandum, House argued that his 2007 marijuana conviction did not qualify as a "controlled substance offense" within § 4B1.2(b) because the Montana statute criminalized more conduct than its federal analogue. Specifically, the federal definition of marijuana was amended in 2018 to expressly exclude hemp, whereas the Montana statute does not contain that exclusion. Compare 21 U.S.C. § 802(16), with Montana Code Annotated section 50-32-101(18). House also asserted that his 2013 cocaine conviction was not a controlled substance offense for two reasons. First, he argued that the Montana accountability statutes (i.e. , Montana Code Annotated sections 45-2-302, 45-9-101⁴ ) included aiding, abetting, and solicitation, which goes beyond the text of USSG § 4B1.2(b). Second, House appeared to make a scope-of-the-controlled-substance argument, though his contention in this regard is difficult to decipher.

At sentencing, as to the 2007 marijuana conviction, the district court ruled: (1) 21 U.S.C. § 802(16) was amended in 2018 to exclude hemp from the federal definition of marijuana; (2) Montana Code Annotated section 50-32-101(18)...