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United States Court of Appeals for the Ninth Circuit
December 5, 2018, Argued and Submitted, Seattle, Washington; August 16, 2019, Filed
[*964] PER CURIAM:
Marcus Crum pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). ] The United States Sentencing Guidelines assign a higher base offense level for that offense if the defendant has previously been convicted of a "controlled substance offense." U.S.S.G. § 2K2.1(a)(4)(A). The question before us is whether Crum's prior conviction for delivery of methamphetamine in violation of Oregon Revised Statutes § 475.890 qualifies as a "controlled substance offense." [**4] We conclude that it does, and remand to the district court for resentencing.
] We use the categorical approach to determine whether a defendant's prior conviction qualifies as a federal "controlled substance offense." See United States v. Brown, 879 F.3d 1043, 1046 (9th Cir. 2018). Under that approach, we compare the elements of the state offense to the elements of the federal definition of "controlled substance offense" to determine whether the state offense "criminalizes a broader range of conduct than the federal definition captures." United States v. Edling, 895 F.3d 1153, 1155 (9th Cir. 2018).
Section 4B1.2(b) of the Sentencing Guidelines defines the term "controlled substance offense" to mean, as relevant here, an offense under state law that prohibits the "distribution or dispensing of a controlled substance." U.S.S.G. § 4B1.2(b).2 The commentary to § 4B1.2, specifically Application Note 1, further provides: "'Crime of violence' and 'controlled substance offense' include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." § 4B1.2 cmt. n.1. Crum contends that Oregon's delivery-of-methamphetamine offense is overbroad as compared to the federal definition of a "controlled substance offense."
The elements of the Oregon offense are fairly simple. Oregon Revised Statutes § 475.890 makes it unlawful "for any person to deliver methamphetamine." Under Oregon law, "delivery" of a controlled substance means, as relevant here, the "actual, constructive or attempted transfer . . . from one person to another of a controlled substance." Or. Rev. Stat. § 475.005(8) (emphasis added). Attempted transfer, in turn, has been construed to include soliciting another person to deliver a controlled substance, see State v. Sargent, 110 Ore. App. 194, 822 P.2d 726, 728 (Or. Ct. App. 1991), as well as offering to sell a controlled substance, see State v. Pollock, 189 Ore. App. 38, 73 P.3d 297, 300 (Or. Ct. App. 2003). Crum argues that neither soliciting delivery nor offering to sell is encompassed within the federal offense, thus rendering the Oregon offense overbroad.
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934 F.3d 963 *; 2019 U.S. App. LEXIS 24456 **; 2019 WL 3849566
UNITED STATES OF AMERICA, Plaintiff-Appellant, v. MARCUS SCOTT CRUM, Defendant-Appellee.
Subsequent History: Rehearing denied by, Rehearing denied by, En banc United States v. Crum, 2019 U.S. App. LEXIS 32409 (9th Cir. Idaho, Oct. 29, 2019)
US Supreme Court certiorari denied by Crum v. United States, 2020 U.S. LEXIS 1921 (U.S., Mar. 30, 2020)
Prior History: [**1] Appeal from the United States District Court for the District of Idaho. D.C. No. 1:17-cr-00147-BLW-1. B. Lynn Winmill, District Judge, Presiding.
United States v. Crum, 2017 U.S. Dist. LEXIS 165036 (D. Idaho, Sept. 6, 2017)
Disposition: VACATED and REMANDED.
controlled substance offense, solicitation, controlled substance, offenses, delivery, encompasses, qualifies, offer to sell, Guidelines, Sentencing, delivery-of-methamphetamine, overbroad, federal definition, drug trafficking, prior conviction, district court, methamphetamine, offering
Criminal Law & Procedure, Controlled Substances, Delivery, Distribution & Sale, Penalties, Adjustments & Enhancements, Criminal History, Prior Felonies, Criminal Offenses, Weapons Offenses, Possession of Weapons, Accessories, Aiding & Abetting, Inchoate Crimes, Attempt, Conspiracy, Elements, Solicitation, Governments, Courts, Judicial Precedent, Manufacture