United States v. Michael Brown

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-30218

Plaintiff-Appellee,

D.C. No.

v. 3:15-cr-05521-BHS-1

MICHAEL N. BROWN,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted October 2, 2017

Seattle, Washington

Filed January 16, 2018

Before: Kim McLane Wardlaw, Richard R. Clifton,

and John B. Owens, Circuit Judges.

Opinion by Judge Clifton;

Concurrence by Judge Owens

2 UNITED STATES V. BROWN

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.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. BROWN 3

COUNSEL

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.

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

4 UNITED STATES V. BROWN

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 actually intend to take part

in the conspiracy. Those facts would not support a conviction

for conspiracy under federal law.

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 (1990).

Under the categorical approach, we are concerned only with

the fact of conviction and the statutory definition of the

underlying offense. Id. at 600. “If a state law proscribes the

same amount of or less conduct than that qualifying [under

federal law], then the two offenses are a categorical match.”

United States v. Martinez-Lopez, 864 F.3d 1034, 1038 (9th

Cir. 2017) (en banc) (internal quotation marks omitted). But

“[i]f the statute of conviction sweeps more broadly than the

generic crime, a conviction under that law cannot

UNITED STATES V. BROWN 5

categorically count as a qualifying predicate, even if the

defendant actually committed the offense in its generic form.”

United States v. Hernandez, 769 F.3d 1059, 1062 (9th Cir.

2014) (per curiam) (alterations incorporated) (internal

quotation marks omitted).1

A. Standard of Review

In sentencing appeals, “we review the district court’s

identification of the correct legal standard de novo and the

district court’s factual findings for clear error.” United States

v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc).

Further, “as a general rule, a district court’s application of the

Sentencing Guidelines to the facts of a given case should be

reviewed for abuse of discretion.” Id.

There is an exception to that general rule, however, when

it comes to application of the categorical approach, because

under the categorical approach “[n]othing turns on the

particulars of the defendant’s own prior offense.” Id. at 1174.

“[E]ither all convictions under a particular statute qualify or

none do.” Id. (citing Descamps, 133 S. Ct. at 2287). The

issue in Gasca-Ruiz was whether a prior conviction qualified

as a “crime of violence,” and we concluded that “determining

whether a particular conviction qualifies as a crime of

1

If there is not a categorical match, a court may ask if the statute is

divisible. Martinez-Lopez, 864 F.3d at 1038. If “a defendant was

convicted of violating a divisible statute,” a court may employ the

modified categorical approach, for which it must “identify, from among

several alternatives, the crime of conviction so that the court may compare

it to the generic offense.” Descamps v. United States, 133 S. Ct. 2276,

2285 (2013). Neither party argues that the Washington drug conspiracy

statute is divisible.

6 UNITED STATES V. BROWN

violence is akin to formulating a rule of general application,

a matter properly reviewed de novo.” Id.

The same reasons for applying de novo review to

determinations of whether a prior conviction is a “crime of

violence” also apply to whether a prior conviction is a

“controlled substance offense.” Though a more searching

standard of review in the instant case does not affect the

outcome of this case, we review the district court’s

determination of whether Brown’s prior conviction was a

controlled substance offense de novo.

B. Application of the Categorical Approach

U.S.S.G. § 2K2.1(a)(4)(A) provides a base offense level

of twenty if “the defendant committed any part of the instant

offense subsequent to sustaining one felony conviction of

either a crime of violence or a controlled substance offense.”

§ 2K2.1(a)(4)(A). The definition of “controlled substance

offense” is the same as that provided in U.S.S.G. § 4B1.2(b).

§ 2K2.1 cmt. n.1. Section 4B1.2 explains:

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.

UNITED STATES V. BROWN 7

§ 4B1.2(b). Here, the relevant offense was Brown’s 2005

state court conviction for conspiracy to deliver

methamphetamine in violation of RCW §§ 69.50.401(1) and

69.50.407. Under Washington state law, for sentencing

purposes the offense was “unranked,” with a standard

sentence of zero to twelve months.

Under federal law, a defendant cannot be convicted of

conspiracy if the only alleged coconspirator is a federal agent

or informant. See United States v. Lo, 447 F.3d 1212, 1225

(9th Cir. 2006) (“[T]he agreement in a conspiracy cannot be

established with evidence that the defendant had an

agreement with a government informer.”).

The Revised Code of Washington includes both a general

conspiracy statute, located in Title 9A of the Criminal Code,

and a separate statute for drug conspiracy, located in Title 69,

pertaining to Food, Drugs, Cosmetics, and Poisons. The

general conspiracy statute states: “A person is guilty of

criminal conspiracy when, with intent that conduct

constituting a crime be performed, he or she agrees with one

or more persons to engage in or cause the performance of

such conduct, and any one of them takes a substantial step in

pursuance of such agreement.” RCW § 9A.28.040(1).

Subsection (2)(f) of the same section of the Criminal Code

provides that “[i]t shall not be a defense to criminal

conspiracy that the person or persons with whom the accused

is alleged to have conspired . . . [i]s a law enforcement officer

or other government agent who did not intend that a crime be

committed.” RCW § 9A.28.040(2)(f).

The Washington drug conspiracy statute provides: “Any

person who attempts or conspires to commit any offense

defined in this chapter is punishable by imprisonment or fine

8 UNITED STATES V. BROWN

or both which may not exceed the maximum punishment

prescribed for the offense, the commission of which was the

object of the attempt or conspiracy.” § 69.50.407. The terms

“conspires” and “conspiracy” are not defined within this

section or anywhere in Title 69 of the Revised Code of

Washington. A section in the Criminal Code states that its

provisions may apply to offenses defined in other titles: “The

provisions of this title shall apply to any offense committed

on or after July 1, 1976, which is defined in this title or the

general statutes, unless otherwise expressly provided or

unless the context otherwise requires, and shall also apply to

any defense to prosecution for such an offense.” RCW

§ 9A.04.010(2).

The important question for this case is whether the

definition of conspiracy within the Criminal Code, including

the qualification in subsection (2)(f), applies to the drug

conspiracy offense defined in Title 69. We conclude that it

does. As a result, the Washington drug conspiracy statute

covers conduct that would not be covered under federal law,

and Brown’s conviction under the Washington statute is not

a categorical match.2

2

Our decision is consistent with decisions of three other federal

district courts in Washington state that have concluded that § 69.50.407

is not a categorical match to federal generic conspiracy because it allows

for a unilateral agreement when the other party is a law enforcement

officer who does not intend to commit a crime. See United States v.

Myers, 2:15-CR-00045-JLQ, dkt. no. 95 at 5–6 (E.D. Wash., filed August

21, 2017) (“The court found Defendant’s drug conspiracy conviction to be

overbroad and not a predicate offense under U.S.S.G. [§] 2K2.1(a).”);

United States v. Phillips, 1:15-CR-02033-SAB-1, dkt. no. 81 at 13 (E.D.

Wash., filed January 10, 2017) (“The defendant’s 2009 state conviction

for conspiracy does not qualify as a controlled substance offense, because

the Washington conspiracy statute is overbroad, in the court’s opinion.”);

United States v. Webb, 166 F. Supp. 3d 1198, 1202–03 (W.D. Wash.

UNITED STATES V. BROWN 9

The history of how subsection (2)(f) came to be enacted

helps to explain our conclusion. In 1994, the Washington

Supreme Court held, in reviewing a conviction for, among

other crimes, conspiracy to deliver controlled substances, that

an agreement between the defendant and a sole coconspirator

who was actually an undercover police officer did not satisfy

the requirement under the conspiracy statute for an actual

agreement between coconspirators. State v. Pacheco,

882 P.2d 183, 185–87 (Wash. 1994). The court concluded:

“[T]he State has not persuaded us the Legislature intended to

abandon the traditional requirement of an actual agreement.

We hold [§] 9A.28.040 and [§] 69.50.407 require the

defendant to reach a genuine agreement with at least one

other coconspirator.” Id. at 188.

In response to Pacheco, the Washington Legislature

amended the general conspiracy statute by adding

§ 9A.28.040(2)(f). See 1997 Wash. Legis. Serv. Ch. 17 (S.B.

5085). Nothing in the amendment mentioned § 69.50.407,

the Washington drug conspiracy statute, or stated that it

amended § 9A.04.010(2), the Criminal Code section that

states that provisions in the Criminal Code apply to crimes

defined in other titles of the Revised Code of Washington.

Washington courts have continued to apply § 9A.04.010(2)

to hold that the definition of conspiracy in Title 9A and Title

69 are the same. See, e.g., State v. Pineda-Pineda, 226 P.3d

164, 172 (Wash. Ct. App. 2010) (“We hold the crime of

controlled substance conspiracy is concomitant with

conspiracy as defined in RCW [§] 9A.28.020. There is

nothing contrary or inconsistent between the controlled

2016) (holding that the two Washington conspiracy statutes are

“concomitant,” and that “a defendant may be convicted under

[§] 9A.28.040 or [§] 60.50.407 for conspiring with a government agent”).

10 UNITED STATES V. BROWN

substance conspiracy and the Washington Criminal Code

definition of conspiracy.”).

The government’s arguments to the contrary are

unpersuasive.3 First, the government submits that, even

though Pacheco discussed both § 9A.28.040 and § 69.50.407,

the Washington legislature amended only the former statute.

The Washington Supreme Court “presume[s] that the

legislature enacts laws ‘with full knowledge of existing

laws.’” Maziar v. Wash. State Dep’t of Corr., 349 P.3d 826,

828 (Wash. 2015) (quoting Thurston Cty. v. Gorton, 530 P.2d

309, 312 (Wash. 1975)). Section 9A.04.010(2) was one of

those existing laws. Because the provisions in Title 9A apply

to offenses defined elsewhere, there was no need to amend

§ 69.50.407 separately. Accordingly, we cannot presume that

3

The government argues that Washington courts have continued to

rely on Pacheco for the proposition that conspiracy under state law

requires a bilateral agreement. The issue here is what effect subsection

(2)(f), which created an exception to the bilateral conspiracy requirement

when a coconspirator is a law enforcement officer who lacks the intent to

commit a crime, had on § 69.50.407. It is undisputed that, aside from the

exception created by the 1997 amendment, Pacheco is still good law, and

the cases cited by the government simply confirm this. See, e.g., State v.

Blair, No. 67874-4-I, 2013 WL 791854, at *4–6 (Wash. Ct. App. Feb. 25,

2013) (reversing a lower court order for arrest of judgment where there

was sufficient evidence of a bilateral agreement to possess marijuana with

intent to deliver); State v. Millyard, No. 28242-2-III, 2010 WL 5158176,

at *1–2 (Wash. Ct. App. Dec. 21, 2010) (affirming a conviction for

conspiracy to possess marijuana with intent to deliver where there was a

bilateral agreement between the defendant and a coconspirator, the

defendant delivered marijuana to the coconspirator, and the coconspirator

subsequently delivered the marijuana to a government informant); State

v. Kraabell, No. 35752-6-II, 2008 WL 852808, at *4 (Wash. Ct. App. Apr.

1, 2008) (concluding, in part, that the absence of a cautionary instruction

regarding the uncorroborated testimony of an accomplice did not affect the

jury’s verdict).

UNITED STATES V. BROWN 11

the Washington legislature failed to recognize that any

changes to § 9A.28.040 would apply to § 69.50.407.

Second, the government argues that, where two statutes

conflict, the more specific statute controls. Here, § 69.50.407

does not define conspiracy. The definition of conspiracy is

provided by § 9A.28.040, and that includes subsection (2)(f).

That does not put the statutes in conflict.

Third, the government argues that § 69.50.407 was not

impliedly repealed. We have not concluded that it was. The

drug conspiracy statute remains on the books and may

properly be enforced. It was simply amended, in effect, by

the addition of subsection (2)(f) to the general conspiracy

statute. Nothing prevents § 9A.28.040 and § 69.50.407 from

standing side by side.4

Finally, the government argues that, even if the panel

were to find that § 69.50.407 is not a categorical match to

federal conspiracy, Brown has not identified a specific

instance where Washington has applied the drug conspiracy

statute in a manner that proves it is overbroad. See Gonzales

v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (holding that to

find a state statute overbroad “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”). Brown has explained the absence of appellate

4

The government also argues that the logical conclusion of Brown’s

argument pits the penalty provisions of § 9A.28 against § 69.50.407. This

is simply not true. Section 69.50.407 has its own penalty provisions for

drug conspiracy, and “[a] general statutory provision normally yields to

a more specific statutory provision.” W. Plaza, LLC v. Tison, 364 P.3d 76,

80 (Wash. 2015). That does not mean that subsection (2)(f) cannot

logically apply to both conspiracy statutes.

12 UNITED STATES V. BROWN

decisions discussing this subject by noting that the relatively

light sentence that would result from a drug conspiracy

conviction, with a standard sentencing range of zero to twelve

months, as noted above at 6–7, encourages prosecutors to

charge violations that carry more substantial sentences.

Convictions under the drug conspiracy statute, he contends,

generally result from negotiations and guilty pleas, which do

not produce appeals. Perhaps more to the point, “if a state

statute explicitly defines a crime more broadly than the

generic definition, no legal imagination is required to hold

that a realistic probability exists that the state will apply its

statute to conduct that falls outside the generic definition of

the crime.” Chavez-Solis v. Lynch, 803 F.3d 1004, 1009–10

(9th Cir. 2015) (internal quotation marks omitted).

Washington conspiracy is explicitly more broad than the

generic federal definition.

C. Harmless Error

The Sentencing Guidelines are advisory, but any

calculation error “is a significant procedural error that

requires us to remand for resentencing.” United States v.

Martinez, 870 F.3d 1163, 1165–66 (9th Cir. 2017) (internal

quotation marks omitted). “The Supreme Court has made

clear that the district court must correctly calculate the

recommended Guidelines sentence and use that

recommendation as ‘the starting point and the initial

benchmark.’” United States v. Munoz-Camarena, 631 F.3d

1028, 1030 (9th Cir. 2010) (per curiam) (some citations and

internal quotation marks omitted) (quoting Kimbrough v.

United States, 552 U.S. 85, 108 (2007)). A district court must

also “adjust upward or downward from that point, and justify

the extent of the departure from the Guidelines sentence.” Id.

UNITED STATES V. BROWN 13

The government has argued that any error here was

harmless, but we do not agree that it is so certain that the

district court would have imposed the same sentence. The

sentence imposed on Brown did represent a downward

departure of three months from the bottom of the Sentencing

Guidelines range as calculated by the district court. The same

sentence would have represented an upward departure of

nineteen months from the upper end of the range if calculated

without treating Brown’s prior conviction as a conviction for

a controlled substance offense. The use of an incorrect

starting point and the failure to keep the proper Sentencing

Guidelines range in mind as the sentencing decision was

made constituted “a significant procedural error,” and the

case must be remanded for resentencing. Id.

III. Conclusion

The district court erred when calculating Brown’s

Sentencing Guidelines range, and that error was not harmless.

Accordingly, Brown’s sentence is vacated, and this case is

remanded for resentencing.

SENTENCE VACATED; REMANDED.

OWENS, Circuit Judge, concurring:

All good things must come to an end. But apparently bad

legal doctrine can last forever, despite countless judges and

justices urging an end to the so-called Taylor categorical

approach. See United States v. Valdivia-Flores, 876 F.3d

1201, 1210–11 (9th Cir. 2017) (O’Scannlain, J., specially

concurring) (collecting cases). This case – though correctly

14 UNITED STATES V. BROWN

decided under current Supreme Court law – typifies how far

this doctrine has deviated from common sense.

Here, one lawyer zealously argues that Washington law

criminalizes a “conspiracy of one,” while the other lawyer

strenuously contends for a narrower reading. Surely, the

prosecutor is the one swinging for the fences, and the defense

attorney the one pushing for lenity. In state court, you would

be right. But we are in federal court, so a defense attorney

ethically must play the role of the aggressive prosecutor,

pushing for the most expansive reading of state law possible.

She succeeded: she has established that the state law is

broader than the federal law, so there is no categorical match,

which favors her client. But this role reversal confirms that

this is a really, really bad way of doing things. Defense

attorneys should not be forced to argue for expanding

criminal liability to benefit their clients, but in the Taylor

Upside Down, that is what necessarily happened here.

Instead of wasting more resources and interjecting more

uncertainty into our sentencing (and immigration) decisions,

either the Supreme Court or Congress should junk this entire

system. See United States v. Perez-Silvan, 861 F.3d 935, 944

(9th Cir. 2017) (Owens, J., concurring) (urging simplification

“to avoid the frequent sentencing adventures more

complicated than reconstructing the Staff of Ra in the Map

Room to locate the Well of the Souls”).

A regime based on the length of previous sentences,

rather than on the vagaries of state law, is the way to go. See

Almanza-Arenas v. Lynch, 815 F.3d 469, 483 (9th Cir. 2016)

(en banc) (Owens, J., concurring) (“A better mousetrap is

long overdue. Rather than compete with Rube Goldberg, we

instead should look to a more objective standard, such as the

UNITED STATES V. BROWN 15

length of the underlying sentence[.]”); U.S.S.G. supp. app. C,

amend. 802 at 156–57 (Nov. 1, 2016) (amending U.S.S.G.

§ 2L1.2 to account for most prior convictions “primarily

through a sentence-imposed approach” and “eliminate[] the

use of the categorical approach, which has been criticized as

cumbersome and overly legalistic”).