Case o' The Week: One is the Loneliest Number - Brown, Taylor Sentencing, and Washington "Solo" Conspiracies

Q: What do you call a “conspiracy of one?”

A: Weird. (And not a federal predicate).

  United States v. Michael N. Brown, 2017 WL 414106 (9th Cir. Jan. 16, 2018), decision available here.

Players: Decision by Judge Clifton, joined by Judge Clifton. Concurrence by Judge Owens. 

  Another admirable win for former CD Cal AFPD Davina Chen.

Facts: Brown plead guilty to a § 922(g) count. Id. at *1. The district court held that a Washington “conspiracy to distribute methamphetamine” conviction was a “controlled substance offense” under USSG § 2K2.1(a)(4)(A). Id. 

  That prior put the Guideline range at 63-78 months -- Brown was sentenced to five years. Id.

Issue(s): “In calculating the appropriate range . . . the district court determined that a base offense level of twenty applied because Brown’s previous conviction for drug conspiracy under Washington state law qualified as a “controlled substance offense.” Id. at *1.

Held: “We conclude that the conviction does not so qualify because the Washington drug conspiracy statute is not a categorical match to conspiracy under federal law. We reverse and remand for resentencing.” Id. at *1.

Of Note: The problem with this prior? The Washington legislature stretched their conspiracy statute to encompass a “conspiracy” involving a defendant and a cop. Id. at *4. 

  By contrast, under federal law, a defendant cannot conspire with a federal agent or informant. Id. at *3. The Washington state statute thus encompassed more conduct than the federal – not a categorical match, id. at *3, and “explicitly more broad than the generic federal definition.” Id. at *5.

  Note the hard work of the ED and WD FPDs to lay the foundation for this Ninth win, with three district court decisions holding that this prior didn’t qualify. Id. at *3 & n.2.

How to Use: Brown is a valuable Taylor decision beyond the narrow holding on this Washington prior. For example, consider Judge Clifton’s welcome discussion of “harmless” error, for this below-guideline sentence. Id. at *6 (“The same sentence would have represented an upward departure of nineteen months from the upper end of the range if calculated without treating Brown’s prior conviction as a conviction for a controlled substance offense. The use of an incorrect starting point and the failure to keep the proper Sentencing Guidelines range in mind as the sentencing decision was made constituted “a significant procedural error,” and the case must be remanded for resentencing.”)

                                               

For Further Reading: Judge Owens again complains that federal sentencing is “Taylor Upside Down” – where federal defense counsel argue that state statutes have broad criminal liability, and AUSAs argue state criminal statutes are narrow. Id. at *6 (Owens, J., concurring). 

  However, the “Upside Down” analysis in this concurrence is, respectfully, backwards. In reality, federal defense counsel are merely pointing out what our county comrades know well: state prosecutors, courts and legislatures routinely stretch criminal liability well beyond a statute’s plain reading, to try to salvage and save state convictions. The results are mutated, deformed rules of criminal liability that make lousy "generic" matches. Viewed this way, the Taylor analysis is best described as the great karmic comeuppance for strained readings of state criminal codes (interpretations, incidentally, that are usually concocted by D.A.s).

  Frustrated with the complexity of the Taylor analysis (and the counter-intuitive positions the parties must take), Judge Owens argues that the feds should scrap the whole approach and switch to “length of previous sentences” to determine priors that qualify for federal sentencing. Id. at *6.

  As long as we’re asking “the Supreme Court or Congress” to “junk this entire system,” id. at *6, a better change would be get away altogether from smuggling criminal history into offense levels as a predictor of recidivism. Priors make really lousy recidivism-proxies for offense level calculations (like Section 2K2.1, or Career Offender).  Beyond the complex Taylor sentencing goo caused by this use of prior convictions, the Guidelines’ use of priors to determine offense levels exacerbates racial disparity in federal sentencing. 

  For a thoughtful piece on this unjust reality, see “Criminal Enhancements Sourcebook,” available here (“Besides reducing perceived unfairness, efforts to reduce disproportionality in prison populations caused by criminal history enhancements are likely to have other, more concrete beneficial effects. The fastest and least expensive way to achieve such reduction will be to reduce or eliminate criminal history rules that have a disparate impact on nonwhite offenders, causing fewer of them to be sent to prison and/or shortening their prison terms.”)

“Conspiracy of One” image from https://www.sentientproductions.com.au/wp-content/uploads/2017/05/Logo-CoO.png

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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