In United States v. Valdivia-Flores, --- F.3d ---, No. 15-50384 (9th Cir. 2017), the Ninth Circuit vacates the defendant's 1326 conviction finding his Washington’s drug trafficking conviction, Wash. Rev. Code
§ 69.50.401, was not and cannot be an aggravated felony. In other words, the conviction could not support his deportation. But there is much more, because the analysis -- which focuses on Washington's overbroad aiding and abetting law -- applies to all Washington crimes, and precludes reliance on the modified categorical approach. Thus, even if the client admits possession of heroin for sale (as in this case) it does not matter.
As explained by Davina Chen in more detail below, and bemoaned by the Court, the upshot of the this decision is that “no Washington state conviction can serve as an aggravated felony at all.” This almost certainly applies for all other federal sentencing predicates, such as ACCA and career offender. It also likely applies other state's convictions that have the same aiding and abetting law as Washington (not California, sadly).
We have our own Trip Johnston to thank for this huge decision.
Here is Davina's excellent summary:
NO Washington conviction can serve as an aggfel (and by extension, perhaps, a federal sentencing predicate). This is because WA aiding and abetting liability is facially broader than federal aiding and abetting. Any WA conviction could have been obtained via accomplice liability, because WA law does not require that accomplice liability be charged and it does not require the jury be unanimous. Ergo . . .no WA convictions match federal analogues.You will also want to be on the lookout for any prior convictions from: -Indiana-Iowa-Massachusetts-Nebraska-Oklahoma
So, from the top. In Duenas-Alvarez, the Supreme Court noted that all jurisdictions have abolished the distinction between principal liability and aiding abetting. So, convictions under state law for aiding and abetting can constitute generic offenses. For example, in Duenas-Alvarez, aiding abetting a vehicle theft could be generic theft, so long as both the definition of theft and aiding and abetting matched.
OK, so, since in all jurisdictions, one can be convicted under an aiding and abetting theory, in all cases, we get to argue that our client COULD have been convicted as an aider and abettor. That is, even if my client is the only named participant in a case, his conviction could have been under an aiding and abetting theory.
Next step, what does aiding and abetting require? In federal court and in most jurisdictions, it requires, the defendant to have INTENDED to assist in the crime. Mere knowledge that one’s conduct will actually assist in the crime is not enough.But in Washington, and the five other jurisdictions listed above, knowledge is enough. You don’t need to intend to assist. In the example Trip gave at oral argument, if you are driving a taxi, and someone gets in the taxi to travel to a drug deal, the taxi driver may be assisting the drug deal with knowledge, but he doesn’t intend to assist a drug deal. He doesn’t care. Is he required to kick the fare out? Under Washington law, apparently he is, or he could face conviction for drug dealing. So, Washington aiding and abetting liability is overbroad because it permits conviction where federal/generic law would not. Since, any conviction could be obtained under this theory of liability, all WA convictions are overbroad.
What if it’s clear that there was no other participant? Doesn’t matter, according to Judges O’Scannlain and Marquez. Since WA law does not require the jury to be unanimous as to whether the conviction is based on principal or aiding and abetting, the statute of conviction is not divisible, so you never get to use the modified categorical approach to determine that the conviction was not based on aiding and abetting. And to the extent that the D cannot show a WA case where the conduct was ACTUALLLY broader than generic aiding and abetting, Judges O’Scannlain and Marquez say it doesn’t matter, because Washington law is overbroad on its face.
