Monday, March 29, 2021

US v. Furaha, No. 20-10063 (3-25-21)(M. Smith w/Wallace & Lasnik). In an issue of circuit first impression, the 9th holds that a prior conviction under a 924c can be a “controlled substance offense” for a U.S.S.G. 2K2.1(a)(4)(A) enhancement (prohibited possessor) because the statute is divisible, and a modified categorical approach can be used. The defendant – a prohibited possessor of a firearm -- argued that his prior 924c conviction is overbroad as it includes simple possession. The government agreed. However, the 9th finds 924c to be divisible here as the prior charge and jury instructions require the court to specify the COV or drug trafficking offense that is the predicate. The plea agreement, further, demonstrates that the defendant pled guilty to two drug trafficking offenses. The 9th thus follows the 8th Circuit, US v. Williams, 926 F.3d 966 (8th Cir. 2019).

The decision is here:


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