After a bit of a break, the Ninth Circuit is back with a criminal case.
In United States v. Furaha, --- F.3d ---, No. 10063 (9th Cir. 2021), the Court considered, "[w]hether a prior conviction pursuant to 18 U.S.C. § 924(c) is a 'controlled substance offense' for purposes of U.S.S.G. § 2K2.1(a)(4)(A)." The Court held it can be.
The Court agreed with the parties "that the statute is overbroad. The statutory definition of a 'drug trafficking crime'—'any felony punishable under the Controlled Substances Act'— encompasses more conduct than the definition of a 'controlled substance offense' pursuant to § 4B1.2(b). See 18 U.S.C. § 924(c)(2)."
"Because the statute’s definition of 'drug trafficking crime' is not a categorical match to the Sentencing Guidelines’ definition of 'controlled substance offense,' we must determine whether the statute is divisible."
The Court explained that section 924(c) "requires that the defendant commit a predicate offense, specifically a 'crime of violence' or a 'drug trafficking crime.' The relevant question, however, is whether the predicate offense is an element of a § 924(c) crime—in other words, whether the jury must unanimously agree that the defendant committed the predicate drug trafficking offense (or crime of violence) to convict the defendant."
The Court held that the predicate offense is an element. Further, '"drug trafficking crime' pursuant to § 924(c) is divisible." Then, applying the modified categorical approach, the Court concluded the subject "§ 924(c) conviction is a 'controlled substance offense' within the meaning of § 4B1.2(b)." Thus, the Court affirmed the sentence.
