Federal Sentence Enhancement Reversed
USA v. Robert House Docket: 20-30169, Opinion Date: April 15, 2022. The district court ruled that two of Defendant’s prior felony convictions, a 2007 conviction for criminal possession of dangerous drugs with intent to distribute (“2007 marijuana conviction”) and a 2013 conviction for criminal distribution of dangerous drugs (“2013 cocaine conviction”)—qualified as “controlled substance offenses” under USSG Sec 4B1.2(b). The district court, in turn, applied the enhancement in USSG Sec. 2K2.1(a)(2). The court accepted the government’s concession that United States v. Bautista, 989 F.3d 698 (9th Cir. 2021), is controlling as to the sentencing enhancement based on the 2007 marijuana conviction, and that the court should remand for resentencing without treating the marijuana conviction as a qualifying offense. The court held that although Defendant’s accountability statutes include offers to engage in prohibited conduct, they are not rendered categorically overbroad with respect to Secs. 4B1.2(b) and 2K2.1(a). The court held (1) that when the district court reached its decision that a cocaine conviction under Montana Code Annotated Secs. 45-9-101 and 50-32- 224(1)(d) could constitute a controlled substance offense under Sec. 4B1.2(b), there was no (and there still is no) binding precedent to the contrary; and (2) that certain of the grounds for the district court’s rulings were not rejected in binding precedent until after its sentencing decision. The court reversed the district court’s sentencing enhancement insofar as it rested on Defendant’s 2007 marijuana conviction and remanded for resentencing. Finally, the district court’s determination regarding Defendant’s 2013 cocaine conviction was not plainly erroneous.