UNITED STATES оf America, Plaintiff-Appellee, v. Michael N. BROWN, Defendant-Appellant.
No. 16-30218
United States Court of Appeals, Ninth Circuit
January 16, 2018
879 F.3d 1043
[W]e are not persuaded by [Cook]‘s assertion that “the public policy cоnsiderations raised in [Johnson v. Calvert [5 Cal.4th 84, 19 Cal. Rptr.2d 494], 851 P.2d 776 (Cal. 1993) (in bank)] are not applicable to a constitutional challenge.” We do not believe that our Supreme Court would have held that the surrogacy contract in Calvert was consistent with public policy if it believed that the surrogacy arrangement violated a constitutional right.
C.M., 213 Cal. Rptr.3d at 370 n.14; see also id. at 368 n.12. Throughout its lengthy opinion, the Court of Appeal acknowledged the limits of Calvert before extending Calvert‘s reasoning to Cook‘s claims and completing its own constitutional analysis. See id. at 367-70. We thus find that all of Cook‘s constitutional claims were necessarily decided as well as actually litigated.
If the threshold requirements of issue preclusion are met, a court must consider “whether preclusion would be consistent with the ‘preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation.‘” ReadyLink, 754 F.3d at 761 (quoting Lucido, 272 Cal. Rptr, 767, 795 P.2d at 1227). Preclusion in this case furthers these “public policies underlying the doctrine.” Lucido, 272 Cal. Rptr. 767, 795 P.2d at 1226. Giving the Court of Appeal‘s opinion preclusive effect is in the interest of both comity and consistency. See id., 272 Cal.Rptr. 767, 795 P.2d at 1229. It preserves judicial resources by ending this two-year set of proceedings in which Cook chose to litigate her identical claims simultaneously in two forums. Finally, Cook‘s pursuit of her constitutional claims may not have been “baseless or unjustified,” see id., 272 Cal.Rptr. 767, 795 P.2d at 1232, but the legally irrеlevant and deeply disparaging allegations about C.M‘s ability, intellect, and socioeconomic status throughout her pleadings are wholly inappropriate. For these reasons, we decline to “tackle anew the precise legal issue[s] resolved by the California Court of Appeal.” ReadyLink, 754 F.3d at 762.
CONCLUSION
The district court was wrong to abstain pursuant to Younger. Notwithstanding this error, we AFFIRM the dismissal of the complaint because the California Court of Appeal‘s decision precludes furthеr litigation of Cook‘s constitutional claims.
Amy Jaquette (argued), Assistant United States Attorney; Annette L. Hayes, United States Attorney; United States Attorney‘s Office, Seattle, Washington; for Plaintiff-Appellee.
Before: Kim McLane Wardlaw, Richard R. Clifton, and John B. Owens, Circuit Judges.
Concurrence by Judge Owens
OPINION
CLIFTON, Circuit Judge:
Defendant Michael N. Brown appeals the district court‘s sixty-month sentence for being a felon in possession of а 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 cаtegorical 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
II. Discussion
Brown argues that the district court erred in calculating his Sentencing Guidelines range. Specifically, Brown contends that the Washington drug conspiracy statutе 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 fedеral 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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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, 110 S.Ct. 2143. “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 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 convictiоn qualifies as a crime of 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
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.
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.”
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 or both which may not exceed the maximum punishment prescribed for the offense, the commission оf which was the object of the attempt or conspiracy.”
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 wоuld not be covered under federal law, and Brown‘s conviction under the Washington statute is not a categorical match.2
In response to Pacheco, the Washington Legislature amended the general conspiracy statute by adding
The government‘s arguments to the contrary are unpersuasive.3 First, the government submits that, even though Pacheco discussed both
Second, the government argues that, where two statutes conflict, the more specific statute controls. Here,
Third, the government argues that
Finally, the government argues that, even if the panel were to find that
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 сalculate 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, 128 S.Ct. 558, 169 L.Ed.2d 481 (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.
III. Conclusion
The district court erred when calculating Brown‘s Sentencing Guidelines range, and that error was not harmless. Accordingly, Brоwn‘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 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 length of the underlying ‘sentence[.]‘“);