Petition for Writ of Certiorari — Ryan Douglas LaSalle, Petitioner v. United States

No.______

__________________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________________________________________________

OCTOBER TERM 2019

__________________________________________________________________

RYAN DOUGLAS LASALLE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

__________________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

__________________________________________________________________

ANTHONY R. GALLAGHER

Federal Defender for the District of Montana

*JOHN RHODES

Assistant Federal Defender

Federal Defenders of Montana

125 Bank St., Ste. 710

Missoula, Montana 59802-9380

(406) 721-6749

*Counsel of Record

SUBMITTED: February 11, 2020

QUESTION PRESENTED

Can a court of appeals successfully avoid undertaking

plain error review of a Guidelines miscalculation by

relying on a federal regulatory definition instead of the

Congressional definition of an offense element analyzed

under the Taylor categorical analysis and affirm because

the novelty of the Taylor analysis precludes plain error?

2

TABLE OF CONTENTS

QUESTION PRESENTED ........................................................................................2

TABLE OF CONTENTS ...........................................................................................3

TABLE OF AUTHORITIES .....................................................................................5

JURISDICTION.........................................................................................................8

OPINION BELOW ....................................................................................................8

LEGAL PROVISIONS INVOLVED. ....................................................................... 8

STATEMENT OF THE CASE. ................................................................................. 8

PRIOR PROCEEDINGS. ..........................................................................................9

FACTUAL BACKGROUND. .................................................................................10

REASONS FOR GRANTING THE PETITION. ....................................................14

A.

B.

The district court was required to correctly calculate the Guidelines

before imposing sentence. ...................................................................14

1.

How the Guidelines for probation revocations are

calculated. .................................................................................14

2.

The Guidelines were calculated incorrectly..............................18

The Ninth Circuit failed to address the issue. .....................................22

CONCLUSION ........................................................................................................25

3

APPENDICES

Appendix A: United States v. LaSalle, 785 Fed. Appx. 410 (9th Cir. 2018)

Appendix B: 18 U.S.C. § 3565

Appendix C: U.S.S.G. § 2K2.1

Appendix D: U.S.S.G. § 4B1.2

Appendix E: U.S.S.G. § 7B1.1

Appendix F: U.S.S.G. § 7B1.4

4

TABLE OF AUTHORITIES

Cases

Kaiser Aluminum & Chem. Corp. v. Bonjorno,

494 U.S. 827 (1990).......................................................................................23

Lorenzo v. Sessions (Lorenzo I),

902 F.3d 930 (9th Cir. 2018) ................................................................... 19-22

Lorenzo v. Whittaker (Lorenzo II),

725 Fed. Appx. 482 (9th Cir. 2018) ..............................................................20

Molina-Martinez v. United States,

136 S.Ct. 2338 (2016)....................................................................................24

Rosales-Mireles v. United States,

138 S.Ct. 1897 (2018)....................................................................................24

Taylor v. United States,

495 U.S. 575 (1990)....................................................................... 8, 13, 22-24

United States v. Eddy,

549 F.2d 108 (9th Cir. 1976) .........................................................................23

United States v. LaSalle,

785 Fed. Appx. 410 (9th Cir. 2018) ....................................................8, 13, 23

United States v. Olano,

507 U.S. 725 (1993).......................................................................................23

United States v. Stinson,

734 F.3d 180 (3d. Cir. 2013) .........................................................................22

5

United States Code

18 U.S.C. § 922(g)(1).......................................................................................8, 9, 11

18 U.S.C. § 3553(a) ...............................................................................12, 14, 15, 17

18 U.S.C. § 3565 ..........................................................................................14, 15, 17

21 U.S.C. § 812 ..................................................................................................21, 23

28 U.S.C. § 1254 ........................................................................................................8

State Statutes

Montana Code Annotated § 50-32-224 ............................................................. 20-21

United States Sentencing Guidelines

U.S.S.G. § 2K2.1..........................................................................................13, 18, 19

U.S.S.G. § 4B1.2 ..........................................................................................13, 18, 19

U.S.S.G. § 7B1.1 ......................................................................................................15

U.S.S.G. § 7B1.4 ......................................................................................................15

6

No.______

__________________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________________________________________________

OCTOBER TERM 2019

__________________________________________________________________

RYAN DOUGLAS LASALLE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

__________________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

__________________________________________________________________

Ryan Douglas LaSalle (“Mr. LaSalle”) petitions for a Writ of Certiorari to

grant certiorari and review his case or grant certiorari, vacate the judgment, and

remand for reconsideration.

Mr. LaSalle asks this Court to consider the Ninth Circuit’s holding rejecting

plain error because a regulatory definition supersedes a Congressional definition of

7

the element analyzed under the Taylor categorical approach and “[b]ecause

[Petitioner’s] theory of this case involves a novel Taylor analysis, the district court

did not commit plain error.” United States v. LaSalle, 785 Fed. Appx. 410, 412 (9th

Cir. 2018).

JURISDICTION

The court of appeals issued its opinion denying Mr. LaSalle’s request for

appellate relief on November 20, 2019. Appendix A. This Court’s jurisdiction is

invoked under 28 U.S.C. § 1254(1).

OPINION BELOW

The opinion of the United States Court of Appeals for the Ninth Circuit is

reported at United States v. LaSalle, 785 Fed. Appx. 410 (9th Cir. 2018). Appendix

A.

LEGAL PROVISIONS INVOLVED

This case involves 18 U.S.C. § 3565, U.S.S.G. §§ 2K2.1, 4B1.2, 7B1.1, and

7B1.4. Appendices B-F.

STATEMENT OF THE CASE

On June 28, 2017, Mr. LaSalle was indicted and charged with felon in

possession of firearm in violation of 18 U.S.C. § 922(g)(1), as well as a forfeiture

count. On February 1, 2018, Mr. LaSalle filed a motion to plead guilty to the sole

8

charge and admit forfeiture in the indictment. He pled guilty without the benefit of

a plea agreement. On February 20, 2018, Mr. LaSalle appeared before the magistrate

judge and changed his plea to guilty. That same day, the magistrate filed his

recommendation that the district court accept Mr. LaSalle’s guilty plea. On March

12, 2018, the district court adopted the magistrate’s findings and accepted Mr.

LaSalle’s guilty plea.

On June 7, 2018, Mr. LaSalle was sentenced to five years probation.

On August 15, 2018, a petition to revoke Mr. LaSalle’s probation was filed.

Mr. LaSalle was arrested and made his initial appearance in Missoula that same day.

On September 10, 2018, a final revocation hearing was held in Missoula. Mr.

LaSalle’s probation was revoked and he was sentenced to 36 months imprisonment,

to be followed by 36 months of supervised release.

PRIOR PROCEEDINGS

On June 28, 2017, Mr. LaSalle was indicted and charged with felon in

possession of firearm in violation of 18 U.S.C. § 922(g)(1), as well as a forfeiture

count. Mr. LaSalle was in state custody at the time of his federal indictment. Mr.

LaSalle was arraigned in Missoula on this indictment on December 7, 2017.

On February 1, 2018, Mr. LaSalle filed a motion to plead guilty to the sole

charge and admit forfeiture in the indictment. He pled guilty without the benefit of

9

a plea agreement. On February 20, 2018, Mr. LaSalle appeared before the magistrate

judge and changed his plea to guilty. That same day, the magistrate filed his

recommendation that the district court accept Mr. LaSalle’s guilty plea. On March

12, 2018, the district court adopted the magistrate’s findings and accepted Mr.

LaSalle’s guilty plea. On June 7, 2018, Mr. LaSalle was sentenced to five years

probation.

On August 15, 2018, a petition to revoke Mr. LaSalle’s probation was filed.

Mr. LaSalle was arrested and made his initial appearance in Missoula that same day.

On September 10, 2018, a final revocation hearing was held in Missoula. Mr.

LaSalle’s probation was revoked and he was sentenced to 36 months imprisonment,

to be followed by 36 months of supervised release.

Mr. LaSalle appealed on September 21, 2018.

The Ninth Circuit Court of Appeals affirmed on November 20, 2019.

Appendix A.

FACTUAL BACKGROUND

Original Prosecution

Mr. LaSalle was arrested after trespassing on the property of the Knife River

Corporation in Kalispell, Montana, on September 20, 2016. At the time, Mr. LaSalle

was serving a State-of-Montana-imposed term of probation.

10

Subsequent

investigation of the Knife River property revealed a handgun, stored with a

suspected burglar’s kit. In phone conversations to his girlfriend and his father from

the Flathead County Detention Facility, Mr. LaSalle referenced possessing the

handgun.

Mr. LaSalle was charged with, and convicted of, one count of felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The United States

Probation Office prepared a Presentence Investigation Report (“PSR”). The PSR

calculated the offense level. Relevant here, Mr. LaSalle’s base offense level was

based on his 2010 Montana state conviction for criminal distribution of dangerous

drugs, specifically cocaine. PSR ¶¶ 18, 36. Mr. LaSalle did not object to the PSR’s

calculation of the Guidelines.

At the sentencing hearing on June 7, 2018, the court reviewed these

calculations, to which Mr. LaSalle, through his attorney, did not object. Following

his counsel’s argument, Mr. LaSalle allocuted and answered questions from the

court. The government made its sentencing recommendation. The court imposed a

sentence of five years probation.

11

Probation Revocation

On August 15, 2018, Mr. LaSalle was arrested pursuant to a petition to revoke

probation. The petition alleged three violations of his conditions of probation.

At the final revocation hearing on September 10, 2018, the Court reviewed

both the original Guidelines calculations and the Chapter 7 revocation guidelines.

Through his attorney, Mr. LaSalle agreed with the court’s recitation of the available

punishments. His attorney did not object to the court’s calculation of the original

Guidelines.

Mr. LaSalle admitted to the violations. The court revoked Mr. LaSalle’s

probationary sentence. The defense attorney requested a sentence within the Chapter

7 guidelines.

The government made its sentencing recommendation. It deferred to the court

as to imprisonment but recommended the longest possible term of supervised

release.

The court considered the 18 U.S.C. § 3553(a) factors. The court announced

its sentencing decision, and imposed a sentence of 36 months imprisonment

followed by 36 months of supervised release. Mr. LaSalle appealed.

12

Appeal

On appeal, Mr. LaSalle argued that the federal definition and State of Montana

definition of cocaine differed, and that Montana’s definition was broader. Due to

this overbreadth, under the Taylor categorical approach, Mr. LaSalle argued that a

State of Montana conviction for distribution of cocaine was not a “controlled

substance offense” as defined in U.S.S.G. § 4B1.2, as cross-referenced by § 2K2.1,

which establishes the Guidelines’ base offense level. Because he had no prior

“controlled substance offense” convictions, the Guidelines sentencing range the

district court relied upon in sentencing Mr. LaSalle was incorrect. The district court

committed plain error by relying on an incorrect Guidelines sentencing range.

The Ninth Circuit affirmed in an unpublished disposition. The Ninth Circuit

did not reach a conclusion as to whether or not a Montana conviction for distribution

of cocaine is a categorical match for federal Guidelines purposes. Instead, the Ninth

Circuit reasoned that a federal regulatory definition of cocaine, rather than the

statutory definition, could be used to analyze the Taylor element and determined that

because Mr. LaSalle’s “theory of this case involves a novel Taylor [categorical]

analysis, the district court did not commit plain error.” LaSalle, 785 Fed. Appx. at

412 (citing Taylor v. United States, 495 U.S. 575 (1990)).

13

Mr. LaSalle requests that this Court grant certiorari to consider his issue or, in

the alternative, grant certiorari, vacate, and remand to the Ninth Circuit Court of

Appeals with instructions to perform the required analysis.

REASONS FOR GRANTING THE PETITION

A.

The district court was required to correctly calculate the Guidelines

before imposing sentence.

1.

How the Guidelines for probation revocations are calculated

Sentencing for revocation of probation is governed by 18 U.S.C. § 3565 and

by Chapter 7 of the United States Sentencing Guidelines. Section 3565 directs

district courts to first consider the factors set forth in 18 U.S.C. § 3553(a) and either

1) continue the term of probation or 2) revoke the probation sentence and resentence

the defendant pursuant to Title 18, Part II, Chapter 227, Subchapter A of the United

States Code. Subchapter A is titled “General Provisions” and contains the statutes

that control criminal sentencing, including 18 U.S.C. § 3553(a). The district court

must consider the §3553(a) factors twice: once when deciding whether to revoke,

and then when deciding the revocation punishment.

When determining the punishment, two Guidelines sentencing ranges must be

considered by the sentencing court. One range is the sentencing range from Chapter

7 of the Guidelines. Violations of probation conditions, or supervised release

14

conditions, are classified into Grade A, B, or C. U.S.S.G. § 7B1.1. The grade of the

violation is then weighed alongside the defendant’s criminal history, as calculated

by the sentencing court for their original criminal judgment, resulting in a

recommended revocation imprisonment range. U.S.S.G. § 7B1.4.

Mr. LaSalle’s violations were Grade C violations. His Criminal History

Category was V. The Chapter 7 Guidelines thus calculated a sentence of 7-to-13

months imprisonment. Mr. LaSalle did not object to the Chapter 7 Guideline

calculations.

The other, typically greater, sentencing range that must be considered is the

Guidelines sentencing range applied at the original criminal sentencing. 18 U.S.C.

§ 3565(a). When a term of probation has been revoked, § 3565(b) directs the court

to “resentence the defendant under subchapter A to a sentence that includes a term

of imprisonment.” Id. Subchapter A is titled “General Provisions” and houses the

primary statutes governing sentencing.

Most importantly, and most relevant to Mr. LaSalle, subchapter A includes 18

U.S.C. § 3553(a):

(a) Factors to be considered in imposing a sentence. – The court shall

impose a sentence sufficient, but not greater than necessary, to comply

with the purposes set forth in paragraph (2) of this subsection. The

court, in determining the particular sentence to be imposed, shall

consider –

15

(1) the nature and circumstances of the offense and the history

and characteristics of the defendant;

(2) the need for the sentence imposed –

(A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the

offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the

defendant; and

(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional

treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for

–

(A) the applicable category of offense committed by the

applicable category of defendant as set forth in the

guidelines –

(i) issued by the Sentencing Commission pursuant

to section 994(a)(1) of title 28, United States Code,

subject to any amendments made to such guidelines

by act of Congress (regardless of whether such

amendments have yet to be incorporated by the

Sentencing Commission into amendments issued

under section 994(p) of title 28); and

16

(ii) that, except as provided in section 3742(g), are

in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised

release, the applicable guidelines or policy statements

issued by the Sentencing Commission pursuant to section

994(a)(3) of title 28, United States Code, taking into

account any amendments made to such guidelines or

policy statements by act of Congress (regardless of

whether such amendments have yet to be incorporated by

the Sentencing Commission into amendments issued

under section 994(p) of title 28);

(5) any pertinent policy statement –

(A) issued by the Sentencing Commission pursuant to

section 994(a)(2) of title 28, United States Code, subject

to any amendments made to such policy statement by act

of Congress (regardless of whether such amendments have

yet to be incorporated by the Sentencing Commission into

amendments issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect

on the date the defendant is sentenced.

(6) the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a) (underlines added). Thus, the command in § 3565(b) requires

the district court to consider these factors, including the original Guidelines range,

when determining the revocation sentence to impose.

17

The Ninth Circuit Court of Appeals has, in turn, determined that the district

court must “consider the sentencing range applicable when he was originally

sentenced[.]” United States v. Olabanji, 268 F.3d 636, 638 (9th Cir. 2001). Here,

the district court calculated that sentencing range as 46-to-57 months.

2.

The Guidelines were calculated incorrectly

The PSR calculated a base offense level of 20 pursuant to U.S.S.G. §

2K2.1(a)(4)(A), which provides a level of 20 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.”

U.S.S.G. § 2K2.1(a)(4)(A).

“Controlled substance offense” is defined through cross-reference to U.S.S.G. §

4B1.2.

In Mr. LaSalle’s case, the predicate “controlled substance offense” was his

2010 Montana state felony conviction for Criminal Distribution of Dangerous

Drugs, specifically cocaine. PSR ¶¶ 18, 36. Section 2K2.1 of the Guidelines

provides:

(a) Base Offense Level (Apply the Greatest):

(4) 20, if –

(A) 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;

18

U.S.S.G. § 2K2.1(a)(4)(A). Application Note 1 to 2K2.1 specifies:

“Controlled substance offense” has the meaning given that term in

§4B1.2(b) and Application Note 1 of the Commentary to §4B1.2

(Definitions of terms Used in Section 4B1.1).

U.S.S.G. § 2K2.1, Application Note 1. The cross-reference at U.S.S.G. § 4B1.2(b)

directs:

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.

Id.

As detailed infra, Mr. LaSalle’s Montana state conviction for Criminal

Distribution of Dangerous Drugs falls outside the definition of “controlled substance

offense” as described in U.S.S.G. § 2K2.1(a)(4)(A). The Montana state definition

of cocaine is broader than the federal definition, and Montana state law punishes

conduct outside the bounds of a federal “controlled substance offense.”

Between Mr. LaSalle’s original sentencing and his revocation sentencing, in

Lorenzo v. Sessions (Lorenzo I), 902 F.3d 930 (9th Cir. 2018), the Ninth Circuit held

19

that when a state law definition of a controlled substance is overbroad, the predicate

state offense does not qualify as a federal controlled substance offense.1

In Lorenzo, the controlled substance in question was methamphetamine, and

the conflict was between the California state and the federal definition of

methamphetamine. Id. at 933. In sum, California’s definition of methamphetamine

included isomers of methamphetamine which are not federal controlled substances;

the Ninth Circuit reasoned that the California definition was therefore broader, and

that criminal convictions referencing or relying on that definition could not be

federal controlled substance offenses. Id. at 939.

Mr. LaSalle makes a similar argument. Instead of California’s definition of

methamphetamine, Mr. LaSalle’s case involves Montana’s definition of cocaine.

Cocaine is included in Montana’s Schedule II of dangerous drugs. Mont.

Code Ann. § 50-32-224(1)(d). That section specifies:

Substances, vegetable origin or chemical synthesis. Unless specifically

excepted or listed in another schedule, any of the following substances,

whether produced directly or indirectly by extraction from substances

of vegetable origin, independently by means of chemical synthesis, or

by a combination of extraction and chemical synthesis, are included in

this category:

1

The opinion in Lorenzo was withdrawn and superseded by Lorenzo v. Whitaker

(Lorenzo II), 725 Fed. Appx. 482 (9th Cir. 2019). Under a different analysis,

Lorenzo II maintained the holding of Lorenzo I.

20

(a) coca leaves and any salt, compound, derivative, or

preparation of coca leaves, including cocaine and ecgonine and

their salts, isomers, derivatives, and salts of isomers, and

derivatives, and any salt, compound, derivative, or preparation of

them that is chemically equivalent or identical with any of these

substances, except that these substances do not include

decocainized coca leaves or extraction of coca leaves, which

extractions do not contain cocaine or ecgonine;

Id. (emphasis added).

Federal law defines cocaine:

coca leaves, except coca leaves and extracts of coca leaves from which

cocaine, ecgonine, and derivatives of ecgonine or their salts have been

removed; cocaine, its salts, optical and geometric isomers, and salts of

isomers; ecgonine, its derivatives, their salts, isomers, and salts of

isomers; or any compound, mixture, or preparation which contains any

quantity of any of the substances referred to in this paragraph.

21 U.S.C. § 812 Schedule II (a)(4).

The federal definition includes cocaine and the salts, isomers, and salts of

isomers of cocaine. The Montana state definition includes cocaine their salts,

isomers, salts of isomers, and derivatives of cocaine. The Montana state definition,

thus, includes substances – derivatives of cocaine – not contemplated by the federal

definition. Because the Montana statute under which Mr. LaSalle was convicted is

broader than the federal definition of a “controlled substance offense,” it was plain

error for the district court to define it as such when calculating the Guidelines.

21

B.

The Ninth Circuit failed to address the issue.

The United States Court of Appeals for the Ninth Circuit affirmed the district

court in an unpublished opinion. Appendix A.

The court began by noting that, because Mr. LaSalle did not raise his

Guidelines objection before the district court, the claim is reviewed for plain error.

Id. at 411. The court then correctly described the Taylor categorical analysis it must

undertake to review Mr. LaSalle’s claim. Id.

However, the court did not perform its promised analysis. Rather, it invoked

a federal regulatory, and not the statutory, definition of cocaine and then ruled that

Mr. LaSalle’s Taylor analysis was “novel,” and this novelty established “the district

court did not commit plain error.” Id. at 412.

“Novelty” does not determine the absence of plain error. See, e.g., United

States v. Stinson, 734 F.3d 180, 184 (3d Cir. 2013) (“[L]ack of precedent alone will

not prevent us from finding plain error.”). And Mr. LaSalle’s argument is not novel

— it was based on the Ninth Circuit’s decision in Lorenzo, which was later

withdrawn. And it is a straight-forward application of the Taylor categorical

analysis, establishing that Montana’s definition of cocaine is broader than the federal

definition of cocaine.

22

Mr. LaSalle’s argument meets all prongs of plain error review. See generally

United States v. Olano, 507 U.S. 725, 733-735 (1993) (describing prongs). The

district court erred in calculating Mr. LaSalle’s Guidelines.

The error was clear; Montana’s definition of cocaine is broader than the

federal definition. To circumvent this jurisprudential fact, the court of appeals

invoked a federal regulatory definition of cocaine. LaSalle, 785 Fed. Appx. at 412.

An Executive Branch regulation cannot supersede Congressional legislation.

“Section 812 delegates no authority to change existing laws or regulations that is

relevant here.” United States v. Eddy, 549 F.2d 108, 113 (9th Cir. 1976) (footnote

omitted); see generally Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827,

835 (1990) (“The starting point for interpretation of a statute is the language of the

statute itself. Absent a clearly expressed legislative intention to the contrary, that

language must ordinarily be regarded as conclusive.”) (citation omitted).

To avoid the Separation of Powers violation, the court of appeals, without

citing authority, dismissed Mr. “LaSalle’s theory of this case [because it] involve[d]

a novel Taylor analysis.” LaSalle, 785 Fed. Appx. at 412.

The error affected Mr. LaSalle’s substantial rights.

When a defendant is sentenced under an incorrect Guidelines range —

whether or not the defendant’s ultimate sentence falls within the correct

23

range — the error itself can, and most often will, be sufficient to show

a reasonable probability of a different outcome absent the error.

Molina-Martinez v. United States, 136 S.Ct. 1338, 1345 (2016)

The error requires relief.

Mr. LaSalle was sentenced under an erroneous

Guidelines range and is in prison because of it.

[A] miscalculation of the United States Sentencing Guidelines range,

that has been determined to be plain and to affect a defendant’s

substantial rights . . . will in the ordinary case, as here, seriously affect

the fairness, integrity, or public protection of judicial proceedings, and

thus will warrant relief.

Rosales-Mireles v. United States, 138 S.Ct. 1897, 1903 (2018)

A regulation cannot override a statute. There is no novelty exception to the

Taylor categorical approach.

24

CONCLUSION

For the above reasons, the petition for a writ of certiorari should be granted

for consideration by this Court, or the petition should be granted and this matter

vacated and remanded to the Ninth Circuit Court of Appeals for further proceedings.

Dated this 11th day of February, 2020.

/s/ John Rhodes

ANTHONY R. GALLAGHER

Federal Defender for the District of Montana

*JOHN RHODES

Assistant Federal Defender

Federal Defenders of Montana

125 Bank St., Ste. 710

Missoula, Montana 59802-9380

(406) 721-6749

*Counsel of Record

25