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United States v. Brown

United States Court of Appeals, Ninth Circuit

January 16, 2018

United States of America, Plaintiff-Appellee,
v.
Michael N. Brown, Defendant-Appellant.

          Argued and Submitted October 2, 2017 Seattle, Washington

         Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding D.C. No. 3:15-cr-05521-BHS-1

          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.

         SUMMARY[*]

         Criminal Law

         The panel vacated a sentence and remanded for resentencing in a case in which the district court determined that the defendant's previous conviction for drug conspiracy under Washington state law qualified as a "controlled substance offense" for purposes of U.S.S.G. 2K2.1(a)(4)(A).

         The panel held that the definition of conspiracy within the Washington Criminal Code - including the provision in RCW § 9A.28.040(f) that allows for a conviction when the other party to the conspiracy is a law enforcement officer or other government agent who did not intend that a crime be committed - applies to the drug conspiracy offense defined in RCW Title 69. The panel held that, as a result, the Washington drug conspiracy statute covers conduct that would not be covered under federal law, and the Washington drug conspiracy statute is therefore not a categorical match to conspiracy under federal law. The panel held that the district court therefore erred in determining that the defendant's prior conviction qualified as a "controlled substance offense" under the Sentencing Guidelines, and concluded that the error was not harmless.

         Concurring, Judge Owens wrote that this case - though correctly decided under current Supreme Court law - typifies how far the Taylor categorical approach has deviated from common sense.

          OPINION

          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 ...


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