31 F.4th 745
9th Cir.2022Background:
- Robert Anthony House pleaded guilty to two counts under 18 U.S.C. § 922(g)(1) and (g)(3) for possession of firearms as a prohibited person.
- At sentencing the district court treated two prior felonies as "controlled substance offenses" under USSG § 4B1.2(b): a 2007 Montana marijuana possession-with-intent-to-distribute conviction and a 2013 Montana accountability-as-to-distribution (cocaine) conviction.
- The district court applied the § 2K2.1(a)(2) enhancement (base offense level 24), producing an advisory Guidelines range; the court imposed a 48-month sentence after a downward variance.
- The Government conceded—based on United States v. Bautista—that the 2007 marijuana conviction could not serve as a predicate after the federal exclusion of hemp; the Ninth Circuit accepted that concession and remanded for resentencing excluding the marijuana conviction.
- House argued the 2013 cocaine conviction was not a qualifying controlled-substance offense for two reasons: (1) Montana’s accountability statutes reach offers/solicitation beyond the governing Guidelines text, and (2) Montana’s cocaine definition is broader than the federal definition (includes derivatives and omits exclusions like ioflupane).
- The Ninth Circuit, bound by prior precedent on commentary and accountability (Crum), rejected the accountability-overbreadth challenge; it reviewed House’s new cocaine-definition arguments for plain error and affirmed that the cocaine conviction qualified.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether House’s 2007 Montana marijuana conviction qualifies as a §4B1.2(b) controlled-substance offense after federal hemp exclusion | Conviction qualifies (district court relied on documents showing marijuana); or government later conceded Bautista controls | House: post-2018 federal law excludes hemp so Montana statute is broader and thus not a categorical match | Court accepted Government’s concession (Bautista); reversed enhancement based on 2007 conviction and remanded for resentencing without it |
| Whether Montana’s accountability statutes (aid/abet/offer) make the 2013 conviction categorically overbroad relative to USSG §4B1.2(b) | Accountability fits within §4B1.2(b) as interpreted by Application Note 1; therefore the prior conviction qualifies | House: Montana’s statutes include offers/solicitations beyond the enumerated conduct in §4B1.2(b) and commentary overreaches | Court, bound by Crum, held accountability provisions do not render the statute categorically overbroad; qualification stands |
| Whether Montana’s cocaine definition is categorically overbroad because it includes derivatives (and omits exclusions like ioflupane) | Gov’t: district court reasonably compared state offense to federal law then in effect; no controlling contrary precedent at sentencing | House: Montana’s statute is broader than the federal CSA/regulation, so conviction is not a categorical match | Because House raised new arguments on appeal, court applied plain-error review and found no plain error; cocaine conviction remains a qualifying predicate |
| Which federal comparator and what timing govern the categorical analysis (CSA vs. federal regulations; at time of state conviction vs. federal sentencing) | Government and majority (post-Bautista): compare state statute to federal law and regulations in effect at the time of federal sentencing | House: contended earlier federal-law timing or different comparator could defeat match | Court followed Bautista (use federal law in effect at federal sentencing); concurrences urged careful use of Duenas‑Alvarez realistic‑probability inquiry and (Judge Wu) treating AG regulations as the controlling comparator when they diverge from the CSA |
Key Cases Cited
- United States v. Bautista, 989 F.3d 698 (9th Cir. 2021) (federal law in effect at sentencing governs and Arizona marijuana statute was categorically overbroad post-hemp exclusion)
- United States v. Crum, 934 F.3d 963 (9th Cir. 2019) (Application Note 1 to §4B1.2 properly encompasses aiding-and-abetting, attempt, conspiracy and analogous accountability doctrines)
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (to show a state statute is categorically broader requires a "realistic probability," not a theoretical possibility, of prosecution under the nongeneric application)
- Taylor v. United States, 495 U.S. 575 (1990) (establishing the categorical approach for comparing state offenses to federal analogues)
- Grisel v. United States, 488 F.3d 844 (9th Cir. 2007) (en banc) (textual overbreadth that is evident from the statute can satisfy the realistic‑probability requirement)
- Descamps v. United States, 570 U.S. 254 (2013) (divisibility and the modified categorical approach framework)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (applied Duenas‑Alvarez’s realistic‑probability requirement in categorical‑analysis contexts)
- United States v. Holliday, [citation="853 F. App'x 53"] (9th Cir. 2021) (panel concluded Montana’s cocaine schedules were facially overbroad; discussed in opinion and concurrences)