1/27/17 - Solicitation of drugs does not qualify as a federal controlled substance offense

Today, in Sandoval v. Yates, --- F.3d ---, Case No. 13-71784 (9th Cir. 2017), the Ninth Circuit held that the petitioner's conviction for delivery of a controlled substance under Oregon Revised Statutes § 475.992(1)(a) was not an aggravated felony because definition of “delivery” includes mere solicitation, and the federal Controlled Substances Act does not punish soliciting delivery of controlled substances.

Although this is an immigration case, it is equally helpful in the criminal context. 

There is a very clear discussion of both the categorical and modified categorical approaches.  

Additionally, the holding that the CSA does not punish mere solicitation is useful for challenging sentencing predicates. 

According to the Court, "[w]hile strongly corroborative of intent to commit a crime, [solicitation] does not cross the line between preparation and attempt."

This is a good reminder that, when your client's predicate is a state law offense, check to see whether the state's law is interpreted more broadly than its federal counterpart.