United States v. Marcus Crum
934 F.3d 963
9th Cir.2019Background
- Marcus Crum pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
- The Sentencing Guidelines impose a higher base offense level (20 instead of 14) if the defendant has a prior conviction for a "controlled substance offense" (U.S.S.G. § 2K2.1(a)(4)(A)).
- Crum had a prior Oregon conviction for delivery of methamphetamine under Or. Rev. Stat. § 475.890; Oregon defines "delivery" to include actual, constructive, or attempted transfer, and Oregon courts have held that this includes solicitation and offers to sell.
- The district court held Crum’s Oregon delivery conviction did not qualify as a federal "controlled substance offense," relying on this court’s decision in Sandoval and sentenced using the lower base level.
- The government appealed; the Ninth Circuit majority held Shumate and prior Ninth Circuit precedent govern and that Oregon’s delivery statute is a categorical match to the Guidelines’ definition, vacating and remanding for resentencing.
- Judge Watford dissented, arguing an offer to sell (criminalized under Oregon law) is not solicitation of distribution under the Guidelines and therefore renders the Oregon offense overbroad.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Oregon conviction for delivery of methamphetamine qualifies as a "controlled substance offense" under U.S.S.G. § 4B1.2(b) | Government: Oregon delivery is a categorical match; prior Ninth Circuit (Shumate) controls | Crum: Oregon law is overbroad because it criminalizes solicitation and mere offers to sell, which the federal definition does not cover | Held: Yes. The Ninth Circuit majority: § 4B1.2(b) (with Application Note 1) encompasses solicitation/attempt; Shumate controls; Oregon delivery is a categorical match |
| Whether Sandoval controls the analysis | — | Crum: Sandoval supports that Oregon delivery includes solicitation and thus is not a match | Held: No. Sandoval involved the CSA "drug trafficking crime" definition and is not controlling for § 4B1.2(b); different textual/analytical framework |
| Whether Application Note 1 may be used to include solicitation despite § 4B1.2(b)’s text | Government: Commentary is valid under Ninth Circuit precedent (Vea‑Gonzales, Shumate) | Crum: The commentary conflicts with the guideline text and lacks binding force under Stinson | Held: The panel doubts the commentary’s propriety but is bound by Ninth Circuit precedent (Vea‑Gonzales, Shumate) and therefore treats Application Note 1 as consistent with § 4B1.2(b) |
| Whether an offer to sell under Oregon law is equivalent to solicitation for Guidelines purposes | Government: An offer to sell constitutes solicitation of delivery and thus fits within § 4B1.2(b) per Sandoval and Shumate | Crum: An offer to sell is not solicitation of distribution under the Guidelines and therefore makes the state statute overbroad | Held: Majority: Offer to sell = solicitation for these purposes; thus Oregon’s offer-to-sell liability matches solicitation covered by § 4B1.2(b). Dissent: disagrees, would find overbreadth |
Key Cases Cited
- United States v. Shumate, 329 F.3d 1026 (9th Cir. 2003) (held Oregon delivery statute qualifies as a "controlled substance offense" under § 4B1.2 and interpreted commentary to encompass solicitation)
- Sandoval v. Sessions, 866 F.3d 986 (9th Cir. 2017) (construed "drug trafficking crime" under the CSA and held solicitation outside that term; court explains different analysis from Guidelines context)
- United States v. Vea-Gonzales, 999 F.2d 1326 (9th Cir. 1993) (concluded Application Note 1 is consistent with the text of § 4B1.2 and may be used to interpret the term)
- Stinson v. United States, 508 U.S. 36 (1993) (holds sentencing‑guideline commentary is authoritative unless inconsistent with the guideline)
- United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (held commentary conflicts with § 4B1.2(b)’s text — cited by majority as contrary authority the panel would follow if not bound)
- United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018) (held the commentary conflicts with the guideline text)
- United States v. Lee, 704 F.3d 785 (9th Cir. 2012) (noted that offering to sell can constitute soliciting delivery under Oregon law)