US v. House, No 20-30169 (4-15-22)(per curiam)(concurrences by Graber, Christen, and Wu). In a drug sentencing case, the 9th reversed and remands a prior MT marijuana conviction as categorically overbroad. It affirms the cocaine prior as not categorically overbroad under plain error.

Although a per curiam opinion, there were three concurrences. All bemoan the complications of a categorical approach. Graber discusses the “explicit/evident” distinction; Christen discusses the “implied/implicit” distinction. Wu suggests and discusses the “reasonable probability” approach for cocaine over breadth analysis.

Congrats to Evangelo Arvanetes, Fed Defenders of MT (Billings).

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/04/15/20-30169.pdf