The Ninth ponders a Washington state conspiracy statute, where a defendant can be found guilty for conspiring with a cop.

“Not a generic fit,” explains Judge Clifton in a welcome decision.

The opinion and the COTW memo ends with Judge Owens’ concurrence. He’s had his fill of the Taylor analysis, and calls for the approach to be scrapped. Maybe we agree (albeit for different reasons, and with different changes in mind).

From:
Steven Kalar, Federal Public Defender, N.D. Cal. FPD Date: Monday, Jan. 22, 2018 Re: United States v. Michael N. Brown, 2017 WL 414106 (9th Cir. Jan. 16, 2018): Taylor: Great decision rejects Wash. conspiracy as § 2K2.1 “drug trafficking” predicate

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 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 re-sentencing.”)

For Further Reading: Judge Owens complains that this 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, this “Upside Down” analysis 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 convictions. Arguably, the Taylor analysis is better described as the great karmic comeuppance for strained readings of state criminal codes (interpretations usually concocted by D.A.s). Frustrated with Taylor, Judge Owens argues for a switch to “length of previous sentences” to determine eligible priors. 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 from smuggling criminal history into offense levels as a predictor of recidivism. Priors are lousy recidivism proxies for offense level calculations (like Section 2K2.1, or Career Offender). Beyond the Taylor sentencing goo caused by this use of prior convictions, the guidelines’ use of priors to determine offense levels exacerbates racial disparity in sentencing. For a thoughtful piece on this unjust reality, see Criminal Enhancements Sourcebook.

(“[E]fforts 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.”)