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United States v. Harms

United States District Court, D. Oregon

October 31, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
NICKOLAUS ALLEN HARMS, Defendant.

          Scott M. Kerin United States Attorney's Office, District of Oregon Attorney for Plaintiff

          Michelle M. Sweet Elizabeth Gillingham Daily Office of the Federal Public Defender, Attorneys for Defendant

          OPINION & ORDER

          MARCO A HERNÁNDEZ, United States District Judge

         In determining the appropriate sentence for Defendant Nickolaus Harms, this Court concludes that a prior Oregon Unlawful Delivery of a Controlled Substance-Heroin conviction is a “controlled substance offense” under United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 2K2.1.[1] The Court also decides that a conviction for Oregon Attempted Assault II is not a “crime of violence” under the Guidelines.

         STANDARD

         Federal firearms defendants are subject to an enhanced Sentencing Guidelines range when they commit a firearm offense after sustaining one or more felony convictions of a “controlled substance offense” or a “crime of violence.” U.S.S.G. 2K2.1(a); see also United States v. Park, 649 F.3d 1175, 1177 (9th Cir. 2011); United States v. Crews, 621 F.3d 849, 851 (9th Cir. 2010). To determine whether a prior offense is a “controlled substance offense” or a “crime of violence, ” the Application Notes to U.S.S.G. § 2K2.1 refer to the meaning given those terms in U.S.S.G. § 4B1.2(a)-(b) and Application Note 1 of the Commentary to § 4B1.2.

         DISCUSSION

         I. Unlawful Delivery of a Controlled Substance

         A conviction under Oregon Revised Statute § (O.R.S.) 475.850, Unlawful Delivery of a Controlled Substance-Heroin, qualifies as a “controlled substance offense” under the Guidelines. In reaching this conclusion, the Court relies on the Ninth Circuit's decision in United States v. Shumate. 329 F.3d 1026 (9th Cir. 2003), amended on denial of reh'g, 341 F.3d 852 (9th Cir. 2003).

         O.R.S. 475.850 provides that “[i]t is unlawful for any person to deliver heroin.” Under the Guidelines, a “controlled substance offense” means:

[A]n offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. §§ 4B1.2(b) and 2K2.1, Commentary n.1. Furthermore, “controlled substance offense” includes the offenses of aiding and abetting, conspiring, and attempting to commit such offenses. U.S.S.G. § 4B1.2, Commentary n.1.

         In Shumate, the Ninth Circuit considered whether the defendant's conviction for delivery of a controlled substance under Oregon law was a felonious controlled substance offense for Guidelines purposes. Shumate, 329 F.3d at 1029. The defendant argued that the Guidelines' application note, which stated that “‘controlled substance offense' include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses, ” did not include “solicitation.” Id. (quoting U.S.S.G. § 4B1.2, Commentary n.1). Because the defendant might have been convicted of “mere solicitation” under Oregon law, the defendant argued that the Oregon conviction was not within the Guidelines' meaning. The Court rejected the defendant's argument because it found no facts to demonstrate that he was not convicted of delivery of marijuana. Id. While the Court considered the possibility that the defendant was convicted in Oregon for solicitation of delivery of marijuana, it concluded that the solicitation would nevertheless be sufficient for his conviction to qualify as a controlled substance offense under § 4B1.1. Thus, an Oregon conviction for unlawful delivery of heroin qualifies as a predicate offense under the Guidelines.

         The Ninth Circuit's recent decision in Sandoval suggests, but does not require a different result. See Sandoval v. Sessions, No. 13-71784, 2017 WL 3400955 (9th Cir. Jan. 27, 2017). In Sandoval, the Ninth Circuit noted that Oregon law permits conviction for delivery based on “mere solicitation.” Id. at *1. The Ninth Circuit concluded that the defendant's Oregon conviction for delivery of a controlled substance was not a categorical match to an aggravated felony under the Controlled Substances Act, because the Act does not punish soliciting delivery of controlled substances. Id.

         However, there are key differences between the Controlled Substances Act at issue in Sandoval and the Guidelines, as addressed in Shumate. The Guidelines state that “‘controlled substance offense' include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” U.S.S.G. § 4B1.2, Commentary n.1 (emphasis added). The Ninth Circuit highlighted the word “include” in its Shumate opinion, noting that elsewhere in the Guidelines it states that “the term ‘includes' is not exhaustive.” U.S.S.G. § 1B1.1, Commentary n. 2. Therefore, the word “include” in § 4B1.2 “allows inclusion of solicitation for controlled substance offenses.” Shumate, 329 F.3d at 1030. See also United States v. Cox, 74 F.3d 189, 190 (9th Cir. 1996) (“[T]he Guidelines themselves instruct us that when they use the term “includes” they do not mean to be exhaustive . . . . Consequently, the omission of solicitation from the list does not carry legal significance.”); United States v. Beltran-Ochoa, 540 Fed.Appx. 646 (9th Cir. 2013) (“solicitation is sufficiently similar to the offenses listed in the application note to be encompassed by the note”) (internal quotation omitted); United States v. Juszczak, 320 Fed.Appx. 558, 559 (9th Cir. 2009) (at sentencing, challenging the characterization of a solicitation offense as a controlled substance offense would have been meritless).

         In contrast, in Sandoval, the Ninth Circuit considered that “knowingly distributing or possessing with intent to distribute heroin violates the Controlled Substances Act.” Sandoval, 2017 WL 3400955, ...


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