United States v. Marcus Crum , 934 F.3d 963 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30261
Plaintiff-Appellant,
D.C. No.
v. 1:17-cr-00147-
BLW-1
MARCUS SCOTT CRUM,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Argued and Submitted December 5, 2018
Seattle, Washington
Filed August 16, 2019
Before: William A. Fletcher, Jay S. Bybee, and
Paul J. Watford, Circuit Judges.
Per Curiam Opinion;
Dissent by Judge Watford
2 UNITED STATES V. CRUM
SUMMARY *
Criminal Law
The panel vacated a sentence and remanded for
resentencing in a case in which the district court held that
delivery of methamphetamine in violation of Oregon
Revised Statutes § 475.890 does not qualify as a “controlled
substance offense” under U.S.S.G. §§ 2K2.1(a)(4)(A) and
4B1.2(b).
The district court agreed with the defendant that
Oregon’s delivery-of-methamphetamine offense is
overbroad as compared to the federal definition of
“controlled substance offense” because only the former
encompasses soliciting the delivery of methamphetamine.
The panel held that United States v. Shumate, 329 F.3d 1026(9th Cir. 2003) (construing the same Oregon definition of
“delivery”), compels the holding that § 475.890 is not
overbroad on the basis that it encompasses soliciting
delivery. The panel that the district court erred in applying
Sandoval v. Sessions, 866 F.3d 986 (9th Cir. 2017), which is
inapplicable in that it involved the different analysis
employed for determining whether an offense qualifies as a
“drug trafficking crime” under the Controlled Substance
Act.
The defendant asked the panel to reconsider this court’s
decision in Shumate on the ground that the commentary to
§ 4B1.2 (Application Note 1), on which Shumate relied to
hold that “controlled substance offense” encompasses
*
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. CRUM 3
solicitation offenses, lacks legal force because it is
inconsistent with the text of the guideline. The panel wrote
that if it were free to do so, it would hold that the
commentary improperly expands the definition of
“controlled substance offense” to include other offenses not
listed in the text of the guideline, but that it is bound by this
court’s decision in United States v. Vea-Gonzales, 999 F.2d
1326 (9th Cir. 1993), which held that Application Note 1 of
§ 4B1.2 is “perfectly consistent” with the text of § 4B1.2.
The panel rejected the defendant’s argument that
Oregon’s delivery-of-methamphetamine offense sweeps
more broadly than the federal definition of “controlled
substance offense” because the Oregon offense criminalizes
the mere offer to sell methamphetamine. The panel
explained that as noted in Sandoval, offering to sell a
controlled substance constitutes soliciting delivery of a
controlled substance, and because solicitation does fall
within the definition of “controlled substance offense” under
§ 4B1.2, an offer to sell a controlled substance under Oregon
law is a categorical match for solicitation of a “controlled
substance offense” under § 4B1.2.
The panel concluded that the district court should
therefore have applied a base offense level of 20 under
§ 2K2.1(a)(4)(A).
Dissenting, Judge Watford wrote that the Oregon offense
criminalizes more conduct than the federal offense does,
rendering the Oregon offense overbroad, because a mere
offer to sell does not constitute solicitation of a “controlled
substance offense.”
4 UNITED STATES V. CRUM
COUNSEL
Francis J. Zebari (argued), Special Assistant United States
Attorney; Bart M. Davis, United States Attorney; United
States Attorney’s Office, Boise, Idaho; for Plaintiff-
Appellant.
Theodore Braden Blank (argued) and Robert K. Schwarz,
Federal Defender Services of Idaho, Boise, Idaho, for
Defendant-Appellee.
OPINION
PER CURIAM:
Marcus Crum pleaded guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
The United States Sentencing Guidelines assign a higher
base offense level for that offense if the defendant has
previously been convicted of a “controlled substance
offense.” U.S.S.G. § 2K2.1(a)(4)(A). The question before
us is whether Crum’s prior conviction for delivery of
methamphetamine in violation of Oregon Revised Statutes
§ 475.890 qualifies as a “controlled substance offense.” We
conclude that it does, and remand to the district court for
resentencing.
I
We use the categorical approach to determine whether a
defendant’s prior conviction qualifies as a federal
“controlled substance offense.” See United States v. Brown,
879 F.3d 1043, 1046 (9th Cir. 2018). Under that approach,
we compare the elements of the state offense to the elements
UNITED STATES V. CRUM 5
of the federal definition of “controlled substance offense” to
determine whether the state offense “criminalizes a broader
range of conduct than the federal definition captures.”
United States v. Edling, 895 F.3d 1153, 1155 (9th Cir. 2018).
Section 4B1.2(b) of the Sentencing Guidelines defines
the term “controlled substance offense” to mean, as relevant
here, an offense under state law that prohibits the
“distribution[] or dispensing of a controlled substance.”
U.S.S.G. § 4B1.2(b). 1 The commentary to § 4B1.2,
specifically Application Note 1, further provides: “‘Crime
of violence’ and ‘controlled substance offense’ include the
offenses of aiding and abetting, conspiring, and attempting
to commit such offenses.” § 4B1.2 cmt. n.1. Crum contends
that Oregon’s delivery-of-methamphetamine offense is
overbroad as compared to the federal definition of a
“controlled substance offense.”
The elements of the Oregon offense are fairly simple.
Oregon Revised Statutes § 475.890 makes it unlawful “for
any person to deliver methamphetamine.” Under Oregon
law, “delivery” of a controlled substance means, as relevant
here, the “actual, constructive or attempted transfer . . . from
one person to another of a controlled substance.” Or. Rev.
Stat. § 475.005(8) (emphasis added). Attempted transfer, in
1
Section 4B1.2(b) reads in full:
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.
6 UNITED STATES V. CRUM
turn, has been construed to include soliciting another person
to deliver a controlled substance, see State v. Sargent, 822
P.2d 726, 728 (Or. Ct. App. 1991), as well as offering to sell
a controlled substance, see State v. Pollock, 73 P.3d 297, 300
(Or. Ct. App. 2003). Crum argues that neither soliciting
delivery nor offering to sell is encompassed within the
federal offense, thus rendering the Oregon offense
overbroad.
The district court agreed with Crum, relying primarily on
our decision in Sandoval v. Sessions, 866 F.3d 986 (9th Cir.
2017). There, we held that delivery of a controlled substance
under Oregon law does not constitute a “drug trafficking
crime” under the Controlled Substances Act because the
term “drug trafficking crime” does not include solicitation,
whereas Oregon’s delivery-of-a-controlled-substance
offense does. Id. at 989–93. Having concluded that Crum’s
prior conviction did not qualify as a “controlled substance
offense” under § 4B1.2(b), the district court sentenced him
using a base offense level of 14 rather than 20.
The government challenges the district court’s ruling on
appeal.
II
We first address Crum’s argument that Oregon’s
delivery-of-methamphetamine offense sweeps more broadly
than the federal “controlled substance offense” because it
criminalizes soliciting the delivery of methamphetamine.
We hold that Oregon’s statute is not overbroad on this basis.
A
Our conclusion is compelled by our court’s prior
decision in United States v. Shumate, 329 F.3d 1026 (9th Cir.
UNITED STATES V. CRUM 7
2003), which held that delivery of marijuana under Oregon
law qualifies as a “controlled substance offense” under
§ 4B1.2(b). Id. at 1028–31. That case dealt with delivery of
a controlled substance under Oregon Revised Statutes
§ 475.992 (now codified at § 475.752), rather than the
delivery-of-methamphetamine offense under § 475.890 at
issue here. But because the definition of “delivery” is the
same under both statutes, see Or. Rev. Stat. § 475.005, the
analysis in Shumate applies here.
We concluded in Shumate that the definition of
“controlled substance offense” in § 4B1.2 encompasses
solicitation offenses. We acknowledged that the
commentary to § 4B1.2 does not mention solicitation, even
though it expands the definition of “controlled substance
offense” to include aiding and abetting, conspiring, and
attempting to commit such an offense. Shumate, 329 F.3d at1030–31. However, we concluded that the commentary’s
“failure to mention solicitation has no legal significance.”
Id. at 1031 (internal quotation marks omitted). We
explained that the commentary does not provide an
exhaustive list of the offenses that are encompassed by the
term “controlled substance offense” because the
commentary uses the word “include.” Id. at 1030–31. And
since our court had previously relied on the same
commentary to hold that the term “crime of violence” in
§ 4B1.2 includes solicitation offenses, we determined that
the term “controlled substance offense” encompasses
solicitation offenses as well. Id. (discussing United States v.
Cox, 74 F.3d 189 (9th Cir. 1996)). We therefore held that
delivery of a controlled substance under Oregon law is a
categorical match under § 4B1.2, even though the Oregon
statute encompasses soliciting the delivery of a controlled
substance. Id.
8 UNITED STATES V. CRUM
Shumate controls here. The district court thus erred in
applying Sandoval, which involved the term “drug
trafficking crime” under the Controlled Substances Act.
Although we held in Sandoval that the term does not
encompass solicitation offenses, 866 F.3d at 989–90, the
analysis for determining whether an offense qualifies as a
“drug trafficking crime” under the Controlled Substances
Act is different from the analysis for determining whether an
offense qualifies as a “controlled substance offense” under
the Sentencing Guidelines. See Shumate, 329 F.3d at 1030
n.5. The Controlled Substances Act “neither mentions
solicitation nor contains any broad catch-all provision that
could even arguably be read to cover solicitation.” Leyva-
Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999). In
contrast, although the commentary to § 4B1.2 does not
mention solicitation either, it does contain a catch-all term
(“include”) that we have interpreted to encompass
solicitation. See Shumate, 329 F.3d at 1030. In this regard,
our decision in Sandoval is inapplicable to this case.
B
Crum asks us to reconsider our decision in Shumate on
the basis of an argument that was not considered in that case.
Crum contends that Application Note 1 of § 4B1.2 lacks
legal force because it is inconsistent with the text of the
guideline—an assertion that, if true, would preclude courts
from relying on the commentary to expand the definition of
“controlled substance offense” to include solicitation. See
Stinson v. United States, 508 U.S. 36, 45–46 (1993). In
Crum’s view, because the plain text of § 4B1.2(b) does not
encompass solicitation (or any of the inchoate offenses
discussed in the commentary), the commentary may not
expand the definition of “controlled substance offense” to
include those offenses.
UNITED STATES V. CRUM 9
Our sister circuits are split on this issue. The First, Third,
and Eleventh Circuits have held that the commentary is
consistent with the text of § 4B1.2(b), as the commentary
does not include any offense that is explicitly excluded by
the text of the guideline. United States v. Smith, 54 F.3d 690,
693 (11th Cir. 1995); United States v. Piper, 35 F.3d 611,
617 (1st Cir. 1994); United States v. Hightower, 25 F.3d 182,
187 (3d Cir. 1994). On the other side of the split, the Sixth
and D.C. Circuits have held that the commentary conflicts
with the text of § 4B1.2(b). United States v. Havis, 927 F.3d
382, 385–87 (6th Cir. 2019) (en banc); United States v.
Winstead, 890 F.3d 1082, 1090–92 (D.C. Cir. 2018). The
D.C. Circuit explained that the text of § 4B1.2(b) provides a
“very detailed definition” of “controlled substance offense,”
which does not include the offenses listed in the
commentary. Winstead, 927 F.3d at 1091 (internal quotation
marks omitted). The court also pointed out that the
Sentencing Commission included attempt offenses in
§ 4B1.2(a) when defining “crime of violence,” but chose not
to include such offenses in § 4B1.2(b) when defining
“controlled substance offense.” Id. Those drafting choices
support the conclusion that the definition of “controlled
substance offense” excludes attempt and the related offenses
listed in the commentary. Id.
If we were free to do so, we would follow the Sixth and
D.C. Circuits’ lead. In our view, the commentary
improperly expands the definition of “controlled substance
offense” to include other offenses not listed in the text of the
guideline. Like the Sixth and D.C. Circuits, we are troubled
that the Sentencing Commission has exercised its
interpretive authority to expand the definition of “controlled
substance offense” in this way, without any grounding in the
text of § 4B1.2(b) and without affording any opportunity for
congressional review. See Havis, 927 F.3d at 386–87;
10 UNITED STATES V. CRUM
Winstead, 890 F.3d at 1092. This is especially concerning
given that the Commission’s interpretation will likely
increase the sentencing ranges for numerous defendants
whose prior convictions qualify as controlled substance
offenses due solely to Application Note 1.
We are nonetheless compelled by our court’s prior
decision in United States v. Vea-Gonzales, 999 F.2d 1326(9th Cir. 1993), overruled on other grounds by Custis v.
United States, 511 U.S. 485 (1994), to reject the Sixth and
D.C. Circuits’ view. In Vea-Gonzales, we held that
Application Note 1 of § 4B1.2 is “perfectly consistent” with
the text of § 4B1.2(b). 999 F.2d at 1330. We explained that
the text of § 4B1.2(b) defines the term “controlled substance
offense” as encompassing violations of laws prohibiting the
manufacture, import, export, distribution, or dispensing of
drugs, and that aiding and abetting, conspiring, and
attempting to commit such offenses constitute violations of
those laws. Id. We thus concluded that Application Note 1
properly interprets the definition of the term “controlled
substance offense” to encompass aiding and abetting,
conspiracy, attempt, and other forms of the underlying
offense. Id. No intervening higher authority is “clearly
irreconcilable” with the reasoning of Vea-Gonzales, so we
cannot overrule that precedent as a three-judge panel. See
United States v. Pepe, 895 F.3d 679, 685–86 (9th Cir. 2018).
As a result, we are not free to depart from the holding in our
prior cases that the term “controlled substance offense” as
defined in § 4B1.2(b) encompasses both solicitation and
attempt offenses. See Shumate, 329 F.3d at 1029–31; Vea-
Gonzales, 999 F.2d at 1330.
III
We turn next to Crum’s argument that Oregon’s
delivery-of-methamphetamine offense sweeps more broadly
UNITED STATES V. CRUM 11
than the federal definition of “controlled substance offense”
because the Oregon offense criminalizes the mere offer to
sell methamphetamine.
Crum’s argument turns on the Oregon Court of Appeals’
decision in Pollock, which was issued after our court decided
Shumate. In Pollock, the Oregon Court of Appeals held that
an individual can be convicted of delivery of a controlled
substance under Oregon law if he has offered to sell that
substance to another person. 73 P.3d at 300. In Crum’s
view, merely offering to sell a controlled substance does not
constitute either soliciting or attempting to commit a
“controlled substance offense.” Thus, even if the definition
of “controlled substance offense” under § 4B1.2
encompasses solicitation and attempt, Crum argues that
Oregon’s delivery-of-methamphetamine offense is still
overbroad.
We reject Crum’s argument. As we noted in Sandoval,
offering to sell a controlled substance constitutes soliciting
delivery of a controlled substance. 866 F.3d at 990–91
(discussing Pollock, among other Oregon cases); see also
United States v. Lee, 704 F.3d 785, 790 n.2 (9th Cir. 2012).
Solicitation does not fall within the definition of “drug
trafficking crime” under the Controlled Substances Act,
which is the term we were construing in Sandoval. But
solicitation does fall within the definition of “controlled
substance offense” under § 4B1.2 of the Sentencing
Guidelines. See Shumate, 329 F.3d at 1030. Thus, an offer
to sell a controlled substance under Oregon law is a
categorical match for solicitation of a “controlled substance
offense” under § 4B1.2.
* * *
12 UNITED STATES V. CRUM
In sum, Crum’s prior conviction for delivery of
methamphetamine qualifies as a “controlled substance
offense,” as that term is defined in § 4B1.2 of the Guidelines.
The district court should therefore have applied a base
offense level of 20 rather than 14. See U.S.S.G.
§ 2K2.1(a)(4)(A). We vacate Crum’s sentence and remand
for resentencing.
VACATED and REMANDED.
WATFORD, Circuit Judge, dissenting:
I would affirm. In my view, Oregon’s delivery-of-
methamphetamine offense is overbroad, even if the term
“controlled substance offense” under U.S.S.G. § 4B1.2(b)
encompasses solicitation, as the majority concludes. Oregon
law permits conviction for delivery of a controlled substance
based on a mere offer to sell the drug to someone else. See
State v. Pollock, 73 P.3d 297, 300 (Or. Ct. App. 2003).
Because a mere offer to sell does not constitute solicitation
of a “controlled substance offense,” the Oregon offense
criminalizes more conduct than the federal offense does,
rendering the Oregon offense overbroad.
The problem with the majority’s solicitation analysis, as
I see it, is this. Solicitation is enticing or encouraging
someone else to commit a crime. See Model Penal Code
§ 5.02(1) (American Law Institute 1985). Here, for our
purposes, the crime that’s covered by the federal definition
of “controlled substance offense” is distributing or
dispensing a controlled substance. To solicit that offense,
the defendant must entice or encourage someone else to
distribute or dispense drugs to a third party. If the defendant
merely offers to sell drugs to someone else, he has not
UNITED STATES V. CRUM 13
solicited a “controlled substance offense” under the
Guidelines. At most, a mere offer to sell amounts to
soliciting the other person to commit the crime of simple
possession. Simple possession, however, is not covered by
the Guidelines’ definition of “controlled substance offense”;
only possession with the intent to distribute is. U.S.S.G.
§ 4B1.2(b).
Our decision in Sandoval v. Sessions, 866 F.3d 986 (9th
Cir. 2017), on which the majority relies, reflects an incorrect
view of what solicitation means. In Sandoval, we equated
offering to sell a controlled substance with soliciting
delivery of a controlled substance, id. at 990–91, but for the
reason just stated they are not the same thing. That analytical
error was not necessary to the conclusion we ultimately
reached. So I do not view that aspect of Sandoval’s
reasoning as binding here, and I would not perpetuate the
error we made there.