FILED
NOT FOR PUBLICATION
NOV 20 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30211
Plaintiff-Appellee, D.C. No.
9:17-cr-00023-DLC-1
v.
RYAN DOUGLAS LASALLE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Argued and Submitted October 24, 2019
Portland, Oregon
Before: FARRIS, BEA, and CHRISTEN, Circuit Judges.
Lasalle appeals the sentence the district court imposed after it revoked his
probation. Lasalle pleaded guilty to one count of felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). Lasalle was sentenced to probation, but his
probation was revoked and he was resentenced. In calculating Lasalle’s new
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
sentence, the district court relied on the Presentence Investigation Report (PSR)
prepared for sentencing on his firearms charge. The PSR concluded that a prior
conviction for criminal distribution of cocaine under Mont. Code Ann. § 45–9–101
qualified as a “controlled substance offense” for purposes of U.S.S.G. §
2K2.1(a)(4)(A). Lasalle challenges that conclusion.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district
court’s ruling. Because Lasalle did not object to the calculation of his guidelines in
district court, the district court’s sentencing calculation is reviewed for plain error.
United States v. Depue, 912 F.3d 1227, 1232 (9th Cir. 2019); Fed. R. Crim. P.
52(b).
“Plain error is ‘(1) error, (2) that is plain, and (3) that affects substantial
rights.’” United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc)
(quoting United States v. Cotton, 535 U.S. 625, 631 (2002)). If those three
conditions are met, the court “may then exercise its discretion to grant relief if the
error ‘seriously affects the fairness, integrity, or public reputation of judicial
proceedings.’” United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009)
(quoting Ameline, 409 F.3d at 1078). The burden of establishing plain error “is on
the defendant claiming it.” Rosales–Mireles v. United States, 138 S. Ct. 1897,
1915 (2018) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)).
2
In determining whether the prior Montana conviction qualifies as a predicate
offense under the guidelines, we use the categorical approach first outlined in
Taylor v. United States, 495 U.S. 575 (1990). United States v. Door, 917 F.3d
1146, 1150 (9th Cir. 2019). This approach “compare[s] the elements” of the state
offense to its federal counterpart to determine if the state offense “criminalizes a
broader range of conduct than the federal definition captures.” United States v.
Edling, 895 F.3d 1153, 1155 (9th Cir. 2018). If the state offense “proscribes the
same amount of or less conduct than” the federal counterpart, the state offense
qualifies as a controlled substance offense, “ending [the] analysis.” United States
v. Martinez-Lopez, 864 F.3d 1034, 1038 (9th Cir. 2017) (citations and internal
quotations omitted).
Lasalle argues that Montana statute Mont. Code Ann. § 45–9–101 is broader
than the federal definition of a controlled substance offense because Montana’s
definition of cocaine encompasses more substances than the definition in the CSA.
Compare Mont. Code Ann. § 50–32–224(1)(d), with 21 U.S.C. § 812 Schedule
3
II(a)(4).1 The Government responds that the Montana statutory definition is a
categorical match to the federal regulatory definition, so Lasalle’s state conviction
qualifies as a prior controlled substance offense for purposes of U.S.S.G. §
2K2.1(a)(4)(A). 21 C.F.R. § 1308.12(b)(4).
At the time the district court ruled, it was not “clear or obvious” that the
court should have looked at the CSA’s definition of cocaine instead of the
regulatory definition. Puckett v. United States, 556 U.S. 129, 135 (2009).
First, the Ninth Circuit has relied upon the federal regulatory definitions of
controlled substances when conducting the Taylor categorical approach.
Coronado v. Holder, 759 F.3d 977, 983 (9th Cir. 2014); 21 U.S.C. § 811; see also
21 U.S.C. § 812(c) n.1. The implementing regulations are recognized as, and
intended to be, the up-to-date federal definitions. It was therefore not clear or
obvious that the definition of cocaine in the CSA, rather than the definition in the
corresponding regulation, should be the controlling definition for the purposes of
the Taylor analysis.
1
Lasalle also challenges the DEA’s authority to add substances to the
schedules and its compliance with administrative procedural requirements when it
updated the definition of cocaine. 21 U.S.C. § 812(c); 21 U.S.C. § 811(a)(1).
However, Lasalle likely waived these arguments by raising them for the first time
in his reply brief, Christian Legal Soc'y v. Wu, 626 F.3d 483, 485 (9th Cir. 2010),
and, to the extent that he did not, the court finds these arguments unpersuasive.
4
Second, Montana last amended its definition of cocaine 22 years ago, and
the definition it adopted was based on the federal regulatory definition. 1997
Mont. Laws Ch. 113 (H.B. 165). More than twenty years of reliance on the
regulatory definition undercuts Lasalle’s argument that there was a clear and
obvious error. Because Lasalle’s theory of this case involves a novel Taylor
analysis, the district court did not commit plain error.
AFFIRMED.
5