USA V. KRIS HARDING, No. 19-30133 (9th Cir. 2021)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 24 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant, No. 19-30133 D.C. No. 4:18-cr-00090-BMM-2 v. KRIS DALE HARDING, MEMORANDUM* Defendant-Appellee. UNITED STATES OF AMERICA, Plaintiff-Appellant, No. 19-30134 D.C. No. 4:18-cr-00090-BMM-3 v. SHEVYN EUGENE MARSHALL, Defendant-Appellee. UNITED STATES OF AMERICA, Plaintiff-Appellant, No. 19-30135 D.C. No. 4:18-cr-00090-BMM-4 v. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. WILLIAM JAMES OUTTEN, Defendant-Appellee. Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding Argued and Submitted November 10, 2021 Portland, Oregon Before: GRABER and CHRISTEN, Circuit Judges, and WU,** District Judge. Defendant-appellees pleaded guilty to possession of explosives crimes and were subject to a sentencing enhancement pursuant to United States Sentencing Guidelines (“U.S.S.G.”) §§ 2K1.3(a)(2) and 4B1.2(b), because they each had a prior felony conviction for distribution of dangerous drugs in violation of Mont. Code Ann. § 45-9-101. The district court refused to impose the enhancement after concluding that § 45-9-101 applied to mere offers to engage in the prohibited activity and was therefore categorically broader1 than the U.S.S.G. § 4B1.2(b)’s definition of a “controlled substance offense,” which does not expressly include such conduct. The Government appealed. ** The Honorable George H. Wu, United States District Judge for the Central District of California, sitting by designation. “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).” United States v. Brown, 879 F.3d 1043, 1046 (9th Cir. 2018). 1 2 After the district court’s ruling, we issued two decisions which are germane hereto. United States v. Crum, 934 F.3d 963, 965-67 (9th Cir. 2019) (per curiam), cert. denied, 140 S. Ct. 2629 (2020), rejected the argument that Oregon’s delivery-of-methamphetamine statute (i.e., Or. Rev. Stat. § 475.890) sweeps more broadly than the federal definition of “controlled substance offense” in § 4B1.2(b) because that statute criminalizes the mere offer to sell methamphetamine.2 United States v. Sorenson, 818 F. App’x 668, 669 (9th Cir. 2020), cert. denied, 141 S. Ct. 2822 (2021), held that the statutory schemes in Or. Rev. Stat. § 475.890 and Mont. Code Ann. § 45-9-101 were “analogous” and, hence, § 45-9-101 was categorically a “controlled substance offense” as defined in § 4B1.2(b). Crum is controlling precedent. Sorenson (as an unpublished disposition) is not binding; but we nevertheless find its reasoning persuasive that Mont. Code Crum stated that its conclusion was “compelled” in part by United States v. Shumate, 329 F.3d 1026, 1028-31 (9th Cir. 2003), which held that the crime of delivery of marijuana under Oregon law (which included solicitation of another person to deliver marijuana) qualified as a controlled substance offense under § 4B1.2(b) because that Guidelines provision “encompasses solicitation offenses.” Crum, 934 F.3d at 965-66. Crum also held that it was not free to depart from the holding in United States v. Vea-Gonzales, 999 F.2d 1326, 1330 (9th Cir. 1993), overruled on other grounds by Custis v. United States, 511 U.S. 485 (1994), that the language in Application Note 1 of U.S.S.G. § 4B1.2 (i.e., that “‘controlled substance offense’ include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses”) is “perfectly consistent” with the text of § 4B1.2(b); and, thus, “the term ‘controlled substance offense’ as defined in § 4B1.2(b) encompasses both solicitation and attempt offenses.” Crum, 934 F.3d at 966-67. 2 3 Ann. § 45-9-101 does not materially differ from Or. Rev. Stat. § 475.890, which was analyzed in Crum. In light of the holdings in Crum and Sorenson, the district court erred in not applying the enhancement in U.S.S.G. § 2K1.3(a)(2). REVERSED and REMANDED for resentencing. 4

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