In United States v. Brown, --- F.3d ---, No. 16-30218 (9th Cir. 2018), the Court vacated the defendant's sentence for being a felon in possession of a firearm. In calculating the Guidelines range, the district court determined that a base offense level of twenty applied because the defendant's previous conviction for drug conspiracy under Washington state law qualified as a “controlled substance offense.”
The Ninth Circuit disagreed. It held the defendant's prior Washington drug conspiracy conviction was not a “controlled substance offense” for purposes of U.S.S.G. 2K2.1(a)(4)(A). This was because, unlike federal conspiracy, Washington conspiracy includes when the other party to the conspiracy is a law enforcement officer or other government agent who did not intend that a crime be committed. In other words, the state statute explicitly defined a crime more broadly than the generic definition.
The decision also has good language on harmless error.
