NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30082
Plaintiff-Appellee, D.C. No.
4:18-cr-00076-BMM-1
v.
BRANDON LAMONTE SORENSON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Argued and Submitted March 3, 2020
Portland, Oregon
Before: WOLLMAN,** FERNANDEZ, and PAEZ, Circuit Judges.
Brandon Sorenson appeals his sentence following his guilty plea to being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At
sentencing, the district court increased Sorenson’s base offense level by six points
on the basis of his prior conviction under Mont. Code Ann. § 45-9-101(1) for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Roger L. Wollman, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
distribution of dangerous drugs. The district court determined that the Montana
drug statute was categorically a controlled substance offense as defined in U.S.S.G.
§ 4B1.2. Sorenson objected to the imposition of this enhancement and timely
appealed. We have jurisdiction under 18 U.S.C. § 1291 and affirm.
We employ the categorical approach to determine whether a prior conviction
counts as a controlled substance offense under the Sentencing Guidelines. United
States v. Lee, 704 F.3d 785, 788 (9th Cir. 2012). Under this approach, “we look
only to the statute of conviction,” and “compare the elements of the statutory
definition of the crime of conviction with a federal definition of the crime to
determine whether conduct proscribed by the statute is broader than the generic
federal definition.” United States v. Simmons, 782 F.3d 510, 513 (9th Cir. 2015)
(citing Lee, 704 F.3d at 788).
We recently considered whether Or. Rev. Stat. § 475.890, which is
analogous to Mont. Code. Ann. § 45-9-101(1), qualified as a controlled substance
offense under U.S.S.G. § 4B1.2. See United States v. Crum, 934 F.3d 963 (9th Cir.
2019). In Crum, we held that an Oregon statute criminalizing both solicitation for
delivery of methamphetamine and a mere offer to sell methamphetamine is a
categorical controlled substance offense. Id. at 967. We relied primarily on
United States v. Shumate, 329 F.3d 1026, 1029–30 (9th Cir. 2003), where we held
that the definition of “controlled substance offense” in § 4B1.2 encompasses
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solicitation offenses. Crum, 934 F.3d at 965.
Sorenson fails to offer any meaningful distinction between the Oregon and
Montana statutory schemes. Oregon law criminalizes “merely offering to deliver
controlled substances.” Sandoval v. Sessions, 866 F.3d 986, 992 (9th Cir. 2017).
The Montana statute likewise criminalizes “offers to sell, barter, exchange, or give
away any dangerous drug[.]” Mont. Code Ann. § 45-4-101(1). Crum’s holding—
that “offering to sell a controlled substance constitutes soliciting delivery of a
controlled substance[,]” 934 F.3d at 967—applies here. Accordingly, the district
court did not err in applying the enhancement.
Sorenson’s arguments concerning the scope of Application Note 1 to
U.S.S.G. § 4B1.2 are similarly foreclosed. As we stated in Crum, we must adhere
to circuit precedent approving the challenged Application Note. Id. at 966
(holding that “[w]e are . . . compelled by our court’s prior decision in United States
v. Vea-Gonzales, 999 F.2d 1326 (9th Cir. 1993)” to apply Application Note 1 of
U.S.S.G. § 4B1.2).
AFFIRMED.
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FILED
United States v. Brandon Sorenson, No. 19-30082 JUN 18 2020
Paez, J., concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the court that United States v. Crum dictates affirmance. 934
F.3d 963 (9th Cir. 2019). I write separately, however, to address two troubling
aspects of this case.
1. First, I believe Crum was wrongly decided for the reasons outlined in
Judge Watford’s dissent. 934 F.3d at 967–68 (Watford, J., dissenting). As Judge
Watford explained, our holding in United States v. Shumate, 329 F.3d 1026 (9th
Cir. 2003) did not bind the Crum majority to hold that mere offers to sell are
categorically controlled substance offenses. The drug statute at issue in Shumate,
Or. Rev. Stat § 475.992, concerned cases in which “a person solicits another to
engage in conduct constituting an element of the crime of delivery, e.g., to provide
to the person a controlled substance for the purpose of distribution to third
parties[.]” 329 F.3d 1026, 1029–30 (9th Cir. 2003) (citing State v. Sargent, 110
Or. App. 194, 198, 822 P.2d 726, 728 (1991)). Accordingly, a conviction under
the Oregon statute triggered the Guidelines enhancement because it constituted an
inchoate version of drug possession with the intent to deliver, not merely simple
possession. See § 4B1.2(b).
In contrast, the Mont. Code Ann. § 45-9-101(1), which is at issue here,
criminalizes all “offers to sell, barter, exchange, or give away” drugs. Assuming
for purposes of argument that such an “offer” is a form of solicitation, it does not
1
appear to be analogous to the solicitation addressed in Shumate. Unlike the
Oregon statute, there is no indication that the Montana statute requires any intent
that the recipient possess the drugs “for the purpose of distribution to third
parties[.]” Sargent, 110 Or. App. at 198. Consequently, an offer-to-sell violation
of § 45-9-101 does not categorically involve the solicitation of a controlled
substance offense under U.S.S.G. § 4B1.2 because it encompasses solicitation
offenses consisting of simple possession.
Were it not for Crum, I would be inclined to grant Sorenson relief on this
ground. However, the Crum majority rejected this same argument, reasoning that
Sandoval v. Sessions, 866 F.3d 986 (9th Cir. 2017) foreclosed it. Crum, 934 F.3d
at 967. Sandoval, in my judgment, erred in equating “[a] mere offer to deliver a
controlled substance” with “the act of soliciting delivery[.]” 866 F.3d at 991.
Despite my concerns, we must follow Crum and reject Sorenson’s argument.
2. Second, I believe the commentary in Application Note 1 to § 4B1.2
impermissibly expands the scope of the Guideline’s text. I agree with the Crum
majority that Application Note 1 errs in sweeping in “other offenses not listed in
the text of that guideline.” 934 F.3d at 966. The court should go en banc so that
we can reconsider our holding in United States v. Vea-Gonzales, 999 F.2d 1326,
1330 (9th Cir. 1993) and “follow the Sixth and D.C. Circuits’ lead” in rejecting
such an unwarranted expansion. Id. (citing United States v. Havis, 927 F.3d 382,
2
386–87 (6th Cir. 2019) (en banc) and United States v. Winstead, 890 F.3d 1082,
1090–92 (D.C. Cir. 2018)).
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