USA V. ROBERT HOUSE, No. 20-30169 (9th Cir. 2022)
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The district court ruled that two of Defendant’s prior felony convictions, a 2007 conviction for criminal possession of dangerous drugs with intent to distribute (“2007 marijuana conviction”) and a 2013 conviction for criminal distribution of dangerous drugs (“2013 cocaine conviction”)—qualified as “controlled substance offenses” under USSG Sec 4B1.2(b). The district court, in turn, applied the enhancement in USSG Sec. 2K2.1(a)(2).
The court 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 the court should remand for resentencing without treating the marijuana conviction as a qualifying offense. The court held that although Defendant’s accountability statutes include offers to engage in prohibited conduct, they are not rendered categorically overbroad with respect to Secs. 4B1.2(b) and 2K2.1(a).
The court held (1) that when the district court reached its decision that a cocaine conviction under Montana Code Annotated Secs. 45-9-101 and 50-32- 224(1)(d) could constitute a controlled substance offense under Sec. 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 court reversed the district court’s sentencing enhancement insofar as it rested on Defendant’s 2007 marijuana conviction and remanded for resentencing. Finally, the district court’s determination regarding Defendant’s 2013 cocaine conviction was not plainly erroneous.
Court Description: 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 UNITED STATES V. HOUSE 3 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. 4 UNITED STATES V. HOUSE 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 F. App’x 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 UNITED STATES V. HOUSE 5 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).
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