Friday, January 19, 2018

US v. Brown, No. 16-30218 (1-16-18)(Clifton w/Wardlaw; Owens concurring). 

The 9th vacates a sentence for a felon in possession and remands.  The err was in the district court determining that a base offense level enhancement applied because a previous conviction for a state drug conspiracy (Washington) qualified under state law as a "controlled substance offense." Under the categorical approach, this state conspiracy was not a match for a federal conspiracy because, under state law, a defendant can be convicted if the only alleged coconspirator is a law enforcement officer or an agent.  Under federal law, a defendant cannot be convicted if the only alleged coconspirator was a law enforcement officer or agent.  The state legislature's amendment to the state general conspiracy code also applies to the drug conspiracy code. The error was not harmless.

Owens, concurring, bemoans the categorical approach.  Although precedent compels this result, he describes how categorical approaches stray from common sense.  He advocates a change to length of sentences rather than labeling.

Congrats to stalwart CJA lawyer Davina Chen (Cal Central) for another victory.
The decision is here:


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