Lead Opinion
Concurrence by Judge Owens
OPINION
Dеfendant Michael N. Brown appeals the district court’s sixty-month sentence for being a felon in possession of a 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 substanсe offense.” We, conclude that the. conviction, does not so qualify because the Washington drug conspiracy statute is not a categorical 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 18 U.S;C. §§ 922(g)(1) and 924(a)(2). At sentencing, the district court held, over Brown’s objection and lacking precedent from this court resolving the issue, that Brown’s 2005 conviction by guilty plea for conspiracy to distribute methamphetamine in Washington state was a “controlled substance offense” for purposes of U.S.S.G. § 2K2.1(a)(4)(A). The district court calculated a Sentencing Guidelines range of sixty-three to seventy-eight months. The district court sentenced Brown- to sixty months of incarceration and three years of supervised release. Brown timely appealed.
II. Discussion
Brown argues . that the district court erred in calculating his Sentencing Guidelines range. Specifically, Brown contends thát the Washington drug conspiracy statute 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 whеn 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 federal law.
To determine whether a prior state conviction is a controlled substance offense for purposes of the Sentencing Guidelines, federal courts employ thе categorical approach set forth in Taylor v. United States,
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,
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. “[Ejither all convictions under a particular- statute qualify or none do.” Id. (citing Descamps,
The same reasons' for applying de novo review to determinations of.whether a prior conviction is a “crime of violenсe” 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
U.S.S.G. § 2K2.1(a)(4)(A) provides a base offense level of twenty if “the defendant committed any part of the instant offense subsequent tó sustaining one felony conviction of either a crime’ of violence or a controlled substance offense.” § 2K2.1(a)(4)(A). The definition of “controlled substance offense” is thé same as that provided in U.S.S.G. § 4B1.2(b). § 2K2.1 cmt. n.l. Section 4B1.2 explains:
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.
§ 4B1.2(b). Here, the relevant offense was Brown’s 2005 state court conviction for conspiracy to deliver methamphetamine in violation of RCW §§ 69.50.401(1) and 69.50.407. Under Washington state law, for sentencing purposes the offense was “un-ranked,” with a standard sentence of zero to twelve months.
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,
The Revised Code of Washington includes both a general conspiracy statute, located in Title 9Á 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 inore 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.” RCW § 9A.28.040(1). Subsection (2)(f) of the same section of the Criminal Code provides that “[i]t shall not be a defense to criminal conspiracy that the person or persons with whom the accused is alleged to have conspired ... [i]s a law enforcement officer or other government agent-who did not intend that a crime be committed.” RCW § 9A.28.040(2)(f).
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 fíne or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” § 69.50.407. The terms “conspires” and “conspiracy” are not defined within this section or anywhere in Title 69 of the Revised Code of Washington. A section in the Criminal Code states that its provisions may apply to offenses defined in other titles: “The provisions of this title shall apply to any offense committed on or after July 1, 1976, which is defined in this title or the general statutes, unless otherwise expressly provided or unless the context otherwise reqpires, and shall also apply to any defense to prosecution for such an offense.” RCW § 9A.04.010(2).
The important cpiestion 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 would not be covered under federal law, and Brown’s conviction under the Washington statute is not a categorical match.
The history of how subsection (2)(f) came to be enacted helps to explain our conclusion. In 1994, the Washington Supreme Court held, in reviewing a сonviction for, among other crimes, conspiracy to deliver controlled substances, that an agreement between the defendant and a sole coconspirator who was actually an undercover police officer did not satisfy the requirement under the conspiracy statute for an actual agreement between cocon-spirators. State v. Pacheco,
In response to Pacheco, the Washington Legislature amended the general conspiracy statute by adding § 9A.28.040(2)(f). See 1997 Wash. Legis. Serv. Ch. 17 (S.B. 5085). Nothing in the amendment mentioned § 69.50.407, the Washington drug conspiracy statute, or stated that it amended § 9A.04.010(2), the Criminal Code section that states that provisions in the Criminal Code apply to crimes defined in other titles of the Revised Code of Washington. Washington courts have continued to apply § 9A.04.010(2) to hold that the definition of conspiracy in Title 9A and Title 69 are the same. See, e.g., State v. Pineda-Pineda,
The government’s arguments to the contrary are unpersuasive.
Second, the government argues that, where two statutes conflict, the more specific statute controls. Here, § 69.50.407 does not define conspiracy. The definition of conspiracy is provided by § 9A.28.040, and that includes subsection (2)(f). That does not pftt the statutes in conflict.
Third, the government argues that. § 69.50.407 was not impliedly repealed. We have not concluded that it was. The drug conspiracy statute remains on the books and may properly be enforced. It was simply amended, in effect, by the addition of subsection (2)(f) to the general conspiracy statute. Nothing prevents § 9A.28.040 and § 69.50.407 from standing side by side.
Finally, the government argues that, even if the panel were to, find that § 69.50.407 is not a categorical match to federal conspiracy, Brown has not identified a specific instance where Washington has applied the drug, conspiracy statute .in a manner that proves it is overbroad. See Gonzales v. Duenas-Alvarez,
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,
The government has argued that any error here was harmless, but we do not agree that it is so cеrtain that the district court would have imposed the same sentence. The sentence imposed on Brown did represent a downward departure of three months from the bottom of the Sentencing Guidelines range as calculated by the district court. The same sentence would have represented an upward departure of nineteen' months from the upper end of the range if calculated withоut treating Brown’s prior conviction as a conviction for a controlled substance offense. The use of an incorrect starting point and the failure to keep the proper Sentencing Guidelines range in mind as the sentencing decision was made constituted “a significant procedural error,” and the case must be remanded for resentenc-ing. Id.
III. Conclusion
The district court erred when calculating Brown’s Sentencing Guidelines range, and that error was not harmless. Accordingly, Brown’s sentence is vacated, and this case is remanded for resentencing.
SENTENCE VACATED; REMANDED.
Notes
. If there is not a categorical match, a court may ask if the statute is divisible. Martinez-Lopez,
. Our decision is consistent with decisions of three other federal district courts in Washington state that have concluded that § 69.50.407 is not a categorical match to federal generic conspiraсy because it allows for a unilateral agreement when the other party is a law enforcement officer who does not intend to commit a crime. See United States v. Myers, 2:15-CR-00045-JLQ, dkt. no. 95 at 5-6 (E.D. Wash., filed August 21, 2017) ("The court found Defendant’s drug conspiracy conviction to be overbroad and not a predicate offense under U.S.S.G. [§ ] 2K2.1(a).”); United States v. Phillips, 1:15-CR-02033-SAB-1, dkt. no. 81 at 13 (E.D. Wash., filed January 10, 2017) ("The defendant’s 2009 state conviction for conspiracy does not qualify as a controlled substance offense, because the Washington conspiracy statute is overbroad, in the court’s opinion.”); United States v. Webb,
. The government argues that Washington courts have continued to rely on Pacheco for the proposition that conspiracy under state law requires a bilateral agreement. The issue here is what effect subsection (2)(f), which created an exception to the bilateral conspiracy requirement when a coconspirator is a law enforcement officer who lacks the intent to commit a crime, had on § 69.50.407. It is undisputed that, aside from the exception created by the 1997 amendment, Pacheco is still good law, and the cases cited by the government simply confirm this. See, e.g., State v. Blair, No. 67874-4-1,
. The government also argues that the logical ' conclusion of Brown’s argument pits the penalty provisions of § 9A.28 against § 69.50.407. This is simply not true. Section 69.50,407 has its own penalty provisions for drug conspiracy, and “[a] general statutory provision normally yields tó a more specific statutory provision,” W. Plaza, LLC v. Tison,
Concurrence Opinion
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,
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-Silvаn,
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,