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9th Circuit: Washington state drug conspiracy not a categorical match for federal drug conspiracy

United States v. Brown, — F.3d —, 2018 WL 414106 (9th Cir. Jan. 16, 2018): Washington state drug conspiracy not a categorical match for federal drug conspiracy because it applies to conspiracy with undercover agent

Michael N. Brown pleaded guilty to being a felon in possession of a firearm. In sentencing him, the district court applied section 2K2.1(a)(4)(A) of the sentencing guidelines, which elevates the recommended sentencing range when the defendant has previously been convicted of a crime of violence or a “controlled substance offense.” Mr. Brown had previously been convicted of violating a Washington state drug conspiracy statute. The Ninth Circuit applied the “categorical approach” to determining whether that state-law prior was properly treated as a “controlled substance offense,” meaning that the court compared the state crime’s statutory elements to the generic federal version of the offense. The Ninth Circuit found that the Washington and federal versions were not a “categorical match,” because the Washington version applies to a situation in which the defendant’s sole coconspirator is actually an undercover agent, while the federal generic version does not. The court accordingly vacated Mr. Brown’s sentence and remanded the case for resentencing. Judge Owens concurred, acknowledging that the holding was correct under the governing law, but complaining that the categorical approach has “deviated from common sense,” and urging the Supreme Court to “junk this entire system” in favor of a regime based on the length of previous sentences.

(Congratulations to Davina T. Chen of Glendale, California.)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)