                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              No. 17-30158
          Plaintiff-Appellee,
                                         D.C. No.
             v.                    2:16-cr-00113-RMP-1

JOSE MANUEL VALENCIA-
MENDOZA, aka Jose                           OPINION
Valencia-Vargas,
        Defendant-Appellant.


     Appeal from the United States District Court
       for the Eastern District of Washington
  Rosanna Malouf Peterson, District Judge, Presiding

       Argued and Submitted December 6, 2018
                Seattle, Washington

                   Filed January 10, 2019

 Before: Susan P. Graber, M. Margaret McKeown, and
         Morgan B. Christen, Circuit Judges.

                  Opinion by Judge Graber
2          UNITED STATES V. VALENCIA-MENDOZA

                            SUMMARY*


                           Criminal Law

    The panel vacated a sentence for unlawfully reentering
the United States after having been removed, and remanded
for resentencing, in a case in which the district court applied
a four-level increase to the offense level under U.S.S.G.
§ 2L1.2 on the ground that, prior to his removal order, the
defendant had been convicted of a Washington state offense
punishable by imprisonment for a term exceeding one year.

    In applying the four-level increase because the
defendant’s Washington conviction carried a general statutory
maximum term of imprisonment of five years, the district
court applied this court’s precedent which required the
district court to disregard the maximum term that the
defendant actually could have received under state law. The
panel held that this precedent is irreconcilable with later
Supreme Court decisions—Carachuri-Rosendo v. Holder,
560 U.S. 563 (2010), and Moncrieffe v. Holder, 569 U.S. 184
(2013), which held that when determining whether an offense
is “punishable” by a certain term of imprisonment, courts
must consider both a crime’s statutory elements and
sentencing factors—and must be overruled.

    Because under the Washington statutes that prescribe a
binding sentencing range, the actual maximum term that the
defendant could have received was six months, the panel held


    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
          UNITED STATES V. VALENCIA-MENDOZA                   3

that the district court erred by concluding that the defendant’s
offense was punishable by more than one year in prison.


                         COUNSEL

William Miles Pope (argued), Federal Defenders of Eastern
Washington & Idaho, Spokane, Washington, for
Defendant-Appellant.

Matthew F. Duggan (argued), Assistant United States
Attorney; Joseph H. Harrington, United States Attorney;
United States Attorney’s Office, Spokane, Washington; for
Plaintiff-Appellee.


                          OPINION

GRABER, Circuit Judge:

    Defendant Jose Manuel Valencia-Mendoza pleaded guilty
to unlawfully reentering the United States after having been
removed, in violation of 8 U.S.C. § 1326(a). At sentencing,
the district court applied a four-level increase to the total
offense level, under United States Sentencing Guideline
§ 2L1.2, because the court concluded that Defendant had
been convicted of a “felony” under Washington law. The
commentary to § 2L1.2 defines “felony” as “any federal,
state, or local offense punishable by imprisonment for a term
exceeding one year.”          U.S.S.G. § 2L1.2 cmt. n.2.
Defendant’s conviction under Washington law carried a
general statutory maximum term of imprisonment of five
years. The district court faithfully applied our precedent and
stopped its analysis there: Because the general statutory
4          UNITED STATES V. VALENCIA-MENDOZA

maximum exceeded one year, the enhancement under § 2L1.2
applied.

    But the actual maximum term that Defendant could have
received was only six months, because Washington law
imposed a mandatory sentencing range. Our precedent
required the district court to disregard the maximum term that
Defendant actually could have received under state law, in
favor of the maximum term that Defendant theoretically
could have received if different factual circumstances were
present. Reviewing de novo the interpretation of the
Sentencing Guidelines, United States v. Martinez, 870 F.3d
1163, 1165 (9th Cir. 2017), we conclude that later Supreme
Court decisions are clearly irreconcilable with our precedent
on this point. Accordingly, we vacate the sentence and
remand for resentencing.

        FACTUAL AND PROCEDURAL HISTORY

   In 2007, Defendant was convicted in Washington state
court of possession of cocaine, in violation of Revised Code
of Washington (“RCW”) section 69.50.4013.1 Defendant’s
conviction was for a “class C felony punishable under chapter
9A.20 RCW.” RCW § 69.50.4013(2). Section 9A.20.021
provided, in turn:

             Unless a different maximum sentence for
         a classified felony is specifically established
         by a statute, no person convicted of a
         classified felony shall be punished by
         confinement or fine exceeding the following:

   1
     All citations to the RCW are to the version in effect in late 2007,
when Defendant was indicted, convicted, and sentenced.
         UNITED STATES V. VALENCIA-MENDOZA                  5

           ....

           (c) For a class C felony, by confinement in
       a state correctional institution for five years,
       or by a fine in an amount fixed by the court of
       ten thousand dollars, or by both such
       confinement and fine.

The general statutory maximum term of imprisonment for
Defendant’s crime was, therefore, five years.

    But, in addition to providing statutory maximum terms,
Washington law specified mandatory limits on criminal
sentences. RCW section 9.94A.505 provided, at the relevant
time: “Unless another term of confinement applies, the court
shall impose a sentence within the standard sentence range
established in RCW 9.94A.510 or 9.94A.517.” (Emphasis
added.) Section 9.94A.517 applied to drug convictions and
provided a two-dimensional “[d]rug offense sentencing grid.”
The grid defined the “standard sentence range[]” for an
offense, depending on the “seriousness level” and the
“offender score.” RCW § 9.94A.517(1).

    Defendant’s crime had a “seriousness level” of “I.” See
RCW § 9.94A.520 (“The offense seriousness level is
determined by the offense of conviction.”); RCW
§ 9.94A.518 (defining convictions under section 69.50.4013
as having a seriousness level of “I”). The state court
calculated Defendant’s “offender score” as 0. See RCW
§ 9.94A.525 (providing detailed calculation of “offender
score”). Turning back to the drug offense sentencing grid, the
“standard sentence range” for seriousness level I and offender
level 0 was “0 to 6 months.” RCW § 9.94A.517(1).
6               UNITED STATES V. VALENCIA-MENDOZA

    If certain aggravating circumstances were present, the
statutes contained adjustments to that range.          RCW
§ 9.94A.533. For example, the presence or use of a firearm
could have resulted in a standard range that exceeded the
sentencing range described in the two-dimensional chart.
RCW § 9.94A.533(3)–(5). But none of those circumstances
was found to be present, so Defendant’s final standard range
was zero to six months.2 Defendant’s state criminal judgment
summarized the available sentence in a tidy table reproduced
below.

COUNT NO.   OFFENDER   SERIOUSNESS LEVEL   STANDARD        Plus Enhancements     Total STANDARD     MAXIMUM TERM
            SCORE                          RANGE (not      for Firearm (F),      RANGE (including
                                           including       other deadly          enhancements)
                                           enhancements)   weapon finding (D),
                                                           VUCSA (V) in a
                                                           protected zone,
                                                           Veh. Hom. (VH).
                                                           See RCW 46.61.520
                                                           or Juvenile present
                                                           (JP); Sexual
                                                           Motivation (SM)

    1            0             1           0 to 6 months   N/A                   0 to 6 months      5 years
                                                                                                    $10,000.00



     The calculation of the final standard range (sometimes
referred to as the “presumptive sentence”) does not end the
statutory analysis. Washington law allowed the sentencing
court to deviate from the standard range—but only if certain
statutorily permitted findings were made. Section 9.94A.535,
titled “[d]epartures from the guidelines,” provided that “[t]he


        2
      In most cases, the statutory maximum term of imprisonment acted
as an absolute cap on the adjustments that could apply to the standard
sentence range. That is, if the adjustments led to a standard sentence
range that exceeded the statutory maximum, then the standard sentence
range was the statutory maximum. Different rules applied, however, if the
defendant was a “persistent offender.” RCW § 9.94A.533(3)(g). In some
cases, then, the defendant could have been sentenced to a term of
imprisonment greater than the statutory maximum as defined in RCW
section 9.94A.505. That possibility in an exceptional case is not at issue
here and does not affect our analysis.
          UNITED STATES V. VALENCIA-MENDOZA                    7

court may impose a sentence outside the standard sentence
range for an offense if it finds, considering the purpose of this
chapter, that there are substantial and compelling reasons
justifying an exceptional sentence.” It further provided that
“[w]henever a sentence outside the standard sentence range
is imposed, the court shall set forth the reasons for its
decision in written findings of fact and conclusions of law.”
RCW § 9.94A.535. (By contrast, sentences within the
standard range could be imposed without special descriptions.
RCW § 9.94A.530(1).)

     Critically, whether “substantial and compelling reasons”
exist was not an open-ended inquiry. The statute specified
two categories of aggravating circumstances that permitted
departure from the guidelines: findings by the sentencing
court and findings by a jury. See RCW § 9.94A.535(2)
(listing the four aggravating circumstances that could be
found by the sentencing court); RCW § 9.94A.535(3) (listing
the 26 aggravating circumstances that could be found by the
jury). If an aggravating circumstance was found, then the
sentencing court could impose a sentence up to the statutory
maximum term. RCW § 9.94A.537(6). But unless one of the
statutorily specified aggravated circumstances was found, the
sentencing court was required to impose a sentence within
the standard range. RCW § 9.94A.505.

    In Defendant’s case, as reflected on the face of the
criminal judgment, neither the court nor the jury found an
aggravating circumstance. Accordingly, Washington law
required the sentencing court to impose a sentence within the
final standard sentence range of zero to six months. The state
court selected 30 days in jail.
8          UNITED STATES V. VALENCIA-MENDOZA

   Following that conviction, Defendant was removed from
the United States. In 2016, the government indicted
Defendant for unlawfully reentering the United States after
having been removed, in violation of 8 U.S.C. § 1326(a).
Defendant pleaded guilty, without a plea agreement.

   At sentencing, the district court applied a four-level
enhancement under U.S.S.G. § 2L1.2. The relevant
Guideline3 provided:

             If, before the defendant was ordered
         deported or ordered removed from the United
         States for the first time, the defendant
         sustained–

             ....

             (D) a conviction for any other felony
         offense (other than an illegal reentry offense),
         increase by 4 levels.

U.S.S.G. § 2L1.2(b)(2) (2016); see also id. § 2L1.2(b)(1)(D)
(2015) (using similar text). As noted, the commentary to the
Guideline defined the term “felony”:

             “Felony” means any federal, state, or local
         offense punishable by imprisonment for a
         term exceeding one year.



    3
       Defendant was sentenced on August 17, 2017, so the applicable
version of the Guidelines is the November 1, 2016 version. United States
v. Valdavinos-Torres, 704 F.3d 679, 692 (9th Cir. 2012) (citing 18 U.S.C.
§ 3553(a)(4)(A)(ii)); accord U.S.S.G. § 1B1.11(a).
         UNITED STATES V. VALENCIA-MENDOZA                9

Id. § 2L1.2 cmt. n.2 (2016); see also id. § 2L1.2 cmt. n.2
(2015) (defining the term identically). The court concluded
that Defendant had sustained a felony conviction in
Washington because the statutory maximum term of
imprisonment for the drug conviction was five years. The
court sentenced Defendant to 24 months of imprisonment.
Defendant timely appeals, challenging only the four-level
enhancement.

                       DISCUSSION

    We must decide whether Defendant’s state conviction
was a “felony” for purposes of the federal Sentencing
Guideline. According to the government, the statutory
maximum punishment for Defendant’s state offense was five
years, so he was convicted of an “offense punishable by
imprisonment for a term exceeding one year.” U.S.S.G.
§ 2L1.2 cmt. n.2. Defendant acknowledges the statutory
maximum but argues that, because the maximum sentence
that he actually could have received was only six months, he
was not convicted of an “offense punishable by imprisonment
for a term exceeding one year.” Id.

    A number of years ago, we sided with the government’s
argument. In United States v. Rios-Beltran, 361 F.3d 1204,
1208 (9th Cir. 2004), the defendant asserted that, under
Oregon law, “the maximum term of imprisonment the trial
court could impose for his conviction was 90 days.” We
rejected the relevance of the mandatory sentencing range
under state law:

           The actual sentence imposed on an
       individual for a prior conviction, or the actual
       sentence that potentially could have been
10        UNITED STATES V. VALENCIA-MENDOZA

       imposed based upon the particular facts of
       that person’s case, is not the relevant inquiry.
       We look to the maximum penalty allowed by
       law in determining whether a prior conviction
       constitutes an aggravated felony under state
       law for purposes of § 2L1.2.

Id. The defendant “was convicted under an Oregon statute
which carries a maximum term of imprisonment of five years.
The fact that the state’s ‘guideline’ sentence is less than that
does not alter the statutory maximum.” Id. at 1209 (citations
omitted).

    We used the same reasoning with respect to Washington’s
sentencing scheme in United States v. Murillo, 422 F.3d 1152
(9th Cir. 2005). The federal inquiry was whether the
defendant previously had been convicted of “a crime
punishable by imprisonment for a term exceeding one year.”
Id. at 1153 (quoting 18 U.S.C. § 922(g)(1)). The defendant
argued that, under Washington law,

       the maximum sentence a court may impose
       for a crime is defined by the maximum term
       that may be imposed based solely on the facts
       established by a guilty verdict. If no
       aggravating factors are pleaded and proved,
       then the maximum sentence must be
       considered the maximum of the range in the
       state’s sentencing guideline grid, not the
       maximum set by the state’s applicable
       criminal statute.

Id. at 1154. We disagreed: “the maximum sentence is the
statutory maximum sentence for the offense, not the
          UNITED STATES V. VALENCIA-MENDOZA                 11

maximum sentence available in the particular case under the
sentencing guidelines.” Id.; see also id. at 1155 (concluding
that the relevant maximum sentence is “the potential
maximum sentence defined by the applicable state criminal
statute, not the maximum sentence which could have been
imposed against the particular defendant for his commission
of that crime according to the state’s sentencing guidelines”);
see also United States v. Crawford, 520 F.3d 1072, 1079–80
(9th Cir. 2008) (applying Murillo’s holding to the
determination under federal Guideline § 4B1.2(b) whether a
Washington conviction was for “an offense under federal or
state law, punishable by imprisonment for a term exceeding
one year”).

    Unless there is a higher intervening authority, those cases
control. We conclude that our earlier holdings are “clearly
irreconcilable,” Miller v. Gammie, 335 F.3d 889, 899–900
(9th Cir. 2003) (en banc), with two later Supreme Court
precedents: Carachuri-Rosendo v. Holder, 560 U.S. 563
(2010), and Moncrieffe v. Holder, 569 U.S. 184 (2013).

    In Carachuri-Rosendo, the Board of Immigration Appeals
concluded that the petitioner had been convicted of an
“aggravated felony” under the immigration laws. 560 U.S. at
571–72. The petitioner’s earlier conviction was in Texas
state court for simple possession of a controlled substance.
Id. at 570–71. Before that, the petitioner had been convicted
of a separate drug crime under state law. Id. at 570.
Understanding the federal statutory term “aggravated felony”
required navigating a “maze of statutory cross-references,”
which asked in part whether the crime was a “drug
trafficking” crime. Id. at 567. The courts had to determine
whether the petitioner’s conduct was “punishable” as a felony
under federal criminal laws. Id. at 566–70. “A felony is a
12        UNITED STATES V. VALENCIA-MENDOZA

crime for which the ‘maximum term of imprisonment
authorized’ is ‘more than one year.’” Id. at 567 (quoting 18
U.S.C. § 3559(a)).

    Title 21 U.S.C. § 844(a) governs simple possession under
federal law. It provided, in relevant part:

       Any person who violates this subsection may
       be sentenced to a term of imprisonment of not
       more than 1 year, . . . except that if he
       commits such offense after . . . a prior
       conviction for any drug, narcotic, or chemical
       offense chargeable under the law of any State,
       has become final, he shall be sentenced to a
       term of imprisonment for . . . not more than 2
       years . . . .

21 U.S.C. § 844(a) (2010). The Supreme Court noted that,
although a prior conviction need not be found by a jury, the
Court would nevertheless describe the crime as two separate
crimes: “first-time simple possession” (a misdemeanor
because the maximum penalty is one year) and “recidivist
simple possession” (a felony because the maximum penalty
is more than one year). Carachuri-Rosendo, 560 U.S. at
567–68 & n.3. The Court also noted that, to prove recidivist
simple possession, the prosecutor must provide pretrial
notice. Id. at 568–69. The government argued that the
petitioner’s crime was punishable under federal law by more
than one year of imprisonment because, had the petitioner
been prosecuted federally, the federal prosecutor could have
alleged the petitioner’s prior conviction and, accordingly,
convicted him of recidivist simple possession, a felony. Id. at
570.
          UNITED STATES V. VALENCIA-MENDOZA                 13

    The Court rejected the government’s position and the
more generic “hypothetical approach” for five reasons. Id. at
575–81. First, “and most fundamentally,” the government’s
argument ignored the fact that the petitioner had been
convicted in state court of only simple possession, not
recidivist simple possession. Id. at 576–77. Second, as
noted, in order to convict a defendant under federal law of
recidivist simple possession, the government must give notice
and an opportunity to defend against that charge. Id. at 578.
The petitioner had not received such notice, even though
Texas law allows for a similar procedural mechanism; to
permit an immigration judge to rule that the petitioner could
have been convicted of recidivism “would denigrate the
independent judgment of state prosecutors to execute the laws
of those sovereigns.” Id. at 580. Third, the government’s
position misapplied the Court’s precedent:

       Not only does the Government wish us to
       consider a fictional federal felony—whether
       the crime for which Carachuri–Rosendo was
       actually convicted would be a felony under
       the Controlled Substances Act—but the
       Government also wants us to consider facts
       not at issue in the crime of conviction (i.e., the
       existence of a prior conviction) to determine
       whether Carachuri–Rosendo could have been
       charged with a federal felony.               This
       methodology is far removed from the more
       focused, categorical inquiry employed in [an
       earlier case].

Id. Fourth, the government’s position is inconsistent with
federal prosecutorial practice:          “The Government’s
‘hypothetical’ approach to this case is therefore misleading as
14       UNITED STATES V. VALENCIA-MENDOZA

well as speculative, in that Carachuri–Rosendo’s
federal-court counterpart would not, in actuality, have faced
any felony charge.” Id. at 581. Finally, ambiguities in
criminal laws should be construed in the non-citizen’s favor.
Id.

    In Moncrieffe, 569 U.S. at 188, the Supreme Court
analyzed the same maze of federal statutory cross-references,
beginning with the immigration law’s term “aggravated
felony.”

       The upshot is that a noncitizen’s conviction of
       an offense that the [Federal] Controlled
       Substances Act (CSA) makes punishable by
       more than one year’s imprisonment will be
       counted as an “aggravated felony” for
       immigration purposes. A conviction under
       either state or federal law may qualify, but a
       state offense constitutes a “felony punishable
       under the Controlled Substances Act” only if
       it proscribes conduct punishable as a felony
       under that federal law.

Id. (some internal quotation marks omitted). The petitioner
had pleaded guilty, in Georgia state court, to possession with
intent to distribute a small amount of marijuana. Id. at
188–89. The Board of Immigration Appeals held that the
conviction constituted an “aggravated felony” for
immigration purposes, and the Fifth Circuit denied the
petition for review. Id. at 189. The Supreme Court reversed.
Id. at 190.

    Under the statutory scheme at issue, “to satisfy the
categorical approach, a state drug offense must meet two
          UNITED STATES V. VALENCIA-MENDOZA                 15

conditions: It must ‘necessarily’ proscribe conduct that is an
offense under the CSA, and the CSA must ‘necessarily’
prescribe felony punishment for that conduct.” Id. at 192.
Turning to the CSA, the Court noted that possession of
marijuana with intent to distribute is a federal crime under 21
U.S.C. § 841(a)(1). Id. The Court then held that “we must
look to what punishment the CSA imposes for this offense.”
Id. at 193.

   Section 841(b)(1)(D) provides:

          In the case of less than 50 kilograms of
       marihuana, . . . such person shall, except as
       provided in paragraphs (4) and (5) of this
       subsection, be sentenced to a term of
       imprisonment of not more than 5 years . . . .

Paragraph (4), in turn, provides:

           Notwithstanding paragraph (1)(D) of this
       subsection, any person who violates
       subsection (a) of this section by distributing a
       small amount of marihuana for no
       remuneration shall be treated as [a simple
       drug possessor, subject to no more than a year
       in prison].

21 U.S.C. § 841(b)(4). “These dovetailing provisions create
two mutually exclusive categories of punishment for CSA
marijuana distribution offenses: one a felony, and one not.
The only way to know whether a marijuana distribution
offense is punishable as a felony under the CSA is to know
whether the conditions described in paragraph (4) are present
or absent.” Moncrieffe, 569 U.S. at 194 (internal quotation
16       UNITED STATES V. VALENCIA-MENDOZA

marks and citation omitted). Because Georgia law does not
require proof of remuneration, the record was ambiguous. Id.
“Ambiguity on this point means that the conviction did not
‘necessarily’ involve facts that correspond to an offense
punishable as a felony under the CSA.” Id. at 194–95.

    The government had argued that paragraph (4) was
merely a mitigating “sentencing factor,” not an “element” of
the offense, so the “offense” was punishable by more than a
year. Id. at 195. The Court disagreed that the label mattered,
largely because of the reasoning of Carachuri-Rosendo:

       [The government’s position] is inconsistent
       with Carachuri–Rosendo, our only decision to
       address both “elements” and “sentencing
       factors.” There we recognized that when
       Congress has chosen to define the generic
       federal offense by reference to punishment, it
       may be necessary to take account of federal
       sentencing factors too. See 130 S. Ct., at
       2581–2582. In that case the relevant CSA
       offense was simple possession, which
       “becomes a ‘felony punishable under the
       [CSA]’ only because the sentencing factor of
       recidivism authorizes additional punishment
       beyond one year, the criterion for a felony.”
       Id., 130 S. Ct., at 2590 (SCALIA, J.,
       concurring in judgment). We therefore called
       the generic federal offense “recidivist simple
       possession,” even though such a crime is not
       actually “a separate offense” under the CSA,
       but rather an “‘amalgam’” of offense elements
       and sentencing factors.
         UNITED STATES V. VALENCIA-MENDOZA                 17

           In other words, not only must the state
       offense of conviction meet the “elements” of
       the generic federal offense defined by the
       INA, but the CSA must punish that offense as
       a felony. Here, the facts giving rise to the
       CSA offense establish a crime that may be
       either a felony or a misdemeanor, depending
       upon the presence or absence of certain
       factors that are not themselves elements of the
       crime. And so to qualify as an aggravated
       felony, a conviction for the predicate offense
       must necessarily establish those factors as
       well.

Moncrieffe, 569 U.S. at 195–96 (one citation omitted).

       The outcome in a hypothetical prosecution is
       not the relevant inquiry. Rather, our “more
       focused, categorical inquiry” is whether the
       record of conviction of the predicate offense
       necessarily establishes conduct that the CSA,
       on its own terms, makes punishable as a
       felony. . . .        [W]e made clear in
       Carachuri–Rosendo that, for purposes of the
       INA, a generic federal offense may be defined
       by reference to both “‘elements’ in the
       traditional sense” and sentencing factors.

Id. at 197–98 (citations omitted).

    Although those Supreme Court cases arose under
different statutes, they are central to our analysis here. The
cases concerned the interpretation of immigration laws and
federal crimes under the Controlled Substances Act. Here, by
18       UNITED STATES V. VALENCIA-MENDOZA

contrast, we must interpret the meaning of Sentencing
Guideline § 2L1.2. We recognize that

       “[t]he clearly irreconcilable requirement is a
       high standard.” United States v. Robertson,
       875 F.3d 1281, 1291 (9th Cir. 2017)
       (quotation marks omitted). Accordingly, “[i]t
       is not enough for there to be some tension
       between the intervening higher authority and
       prior circuit precedent, or for the intervening
       higher authority to cast doubt on the prior
       circuit precedent.” Id. “So long as the court
       can apply our prior circuit precedent without
       running afoul of the intervening authority it
       must do so.” Id. (quotation marks omitted).

Close v. Sotheby’s, Inc., 894 F.3d 1061, 1073 (9th Cir. 2018)
(second alteration in original). But we are persuaded that our
earlier precedents cannot survive.

    The Washington statute, like the federal CSA, defined
only one crime by elements. Moncrieffe, 569 U.S. at 195–96.
And the Washington statute, like the federal CSA, imposed
different statutory maximum sentences depending on an
amalgam of elements and sentencing factors. Id. We held in
Rios-Beltran, Murillo, and Crawford that, when considering
whether a crime is “punishable” by more than one year, we
would look solely to the statutory maximum term of
imprisonment that corresponds to the elements of the crime
charged; we declined to consider sentencing factors. But in
Carachuri-Rosendo and Moncrieffe, the Supreme Court held
that, when considering whether a crime is “punishable” by
more than one year, the court must examine both the elements
and the sentencing factors that correspond to the crime of
         UNITED STATES V. VALENCIA-MENDOZA                 19

conviction. Accordingly, we hold that our earlier precedents
are irreconcilable with Carachuri-Rosendo and Moncrieffe
and must be overruled.

    The Supreme Court’s decision in United States v.
Rodriquez, 553 U.S. 377 (2008), is not to the contrary.
There, the Supreme Court assessed the meaning of the
statutory phrase “‘maximum term of imprisonment . . .
prescribed by law.’” Id. at 380 (quoting 18 U.S.C.
§ 924(e)(2)(A)(ii)). The Court held that Congress intended
for courts to consider recidivist sentencing enhancements in
determining the maximum term of imprisonment. Id. at 393.
In its analysis, the Court rejected the notion that the top
sentence of a mandatory guidelines range—Washington
state’s guidelines in particular—was a relevant consideration.
Id. at 390–93. First, the Court held that the top sentence is
not truly the maximum because Washington law at the
relevant time permitted a sentencing judge to deviate for any
substantial and compelling reason; that discretion was not
limited by statute. Id. at 390–91 & n.5. Second, the Court
held that the specific concept of the “maximum term of
imprisonment” was always understood to mean the statutory
maximum, without regard to sentencing factors. Id. at
391–92.

    Two important distinctions make Rodriquez irrelevant to
our analysis. First, unlike the statutory question at issue
there—what is the “maximum term of imprisonment . . .
prescribed by law”—the question at issue here is whether
Defendant was convicted of an offense “punishable” by more
than one year. “Punishable” suggests a realistic look at what
a particular defendant actually could receive, whereas
“maximum term of imprisonment . . . prescribed by law”
20       UNITED STATES V. VALENCIA-MENDOZA

suggests a mechanistic examination of the highest possible
term in the statute.

    Second, Washington law is now materially more
restrictive than it was at the time of the relevant events in
Rodriquez. Under Washington law when Defendant was
convicted, the sentencing court could not deviate from the
statutory sentencing range unless it found that one of four
specific factual circumstances was present. It is plain from
the state criminal judgment that the sentencing court did not
find any of those circumstances, so the sentencing court was
bound by the statutory sentencing range. In other words, the
top sentence of the guidelines range was the maximum
possible statutory punishment. See United States v.
Rockymore, 909 F.3d 167, 172 (6th Cir. 2018) (“Because the
state [of Tennessee] did not seek a higher range when
prosecuting Rockymore, he accordingly was never subject to
the enhancements. Therefore, the ‘maximum term of
imprisonment’ that he could have received was [the
maximum term defined by the statutory sentencing
guidelines].”).     That distinction—between (as here)
statutorily defined factual circumstances and (as in
Rodriquez) an open-ended inquiry into any potential factual
circumstance—is important because it defines the maximum
possible punishment assigned by the legislature. See id. at
171 (holding that, to determine the maximum term of
imprisonment under Tennessee law and Rodriquez, the court
must look to the mandatory sentencing scheme, including the
“offender-based” attributes).

    Our holding today accords with decisions by several sister
circuits. Both the Eighth and Tenth Circuits have held that,
when determining whether a Kansas offense is “punishable”
by more than one year in prison, the Supreme Court’s recent
           UNITED STATES V. VALENCIA-MENDOZA                          21

cases require an examination of the maximum sentence
possible under the state’s mandatory sentencing guidelines.
United States v. Brooks, 751 F.3d 1204, 1209–13 (10th Cir.
2014); United States v. Haltiwanger, 637 F.3d 881, 883–84
(8th Cir. 2011). Similarly, the Fourth Circuit has held that,
when determining whether a North Carolina offense is
“punishable” by a prison term of more than one year, the
Supreme Court’s recent cases require the court to consider the
maximum sentence possible under the state’s mandatory
sentencing guidelines. United States v. Simmons, 649 F.3d
237 (4th Cir. 2011) (en banc). We are aware of no relevant
circuit precedent to the contrary.4

    4
       Our holding today also finds a surprising ally: the government’s
position in several cases in the Fifth Circuit. For example, in a case
involving the mandatory sentencing regime in Oregon, the government
asserted, in a motion to remand for resentencing:

         To be “punishable” as a felony—that is, by
         imprisonment for a term exceeding one year—a prior
         state conviction must establish all the elements and
         sentencing factors necessary to authorize the
         punishment beyond one year. See Moncrieffe, 133 S.
         Ct. at 1685-87; Carachuri-Rosendo, 560 U.S. at
         569-70. The presumptive sentences in each of
         Martinez’s cases—the maximum sentence the state
         court could impose without additional fact-finding—are
         below one year, so that neither prior conviction counts
         as a “felony.”

United States v. Martinez, No. 14-41020, United States’ Agreed Motion
for Summary Remand (5th Cir. Jan. 14, 2015) (one citation truncated);
accord United States v. Zacarias-Lopez, No. 13-41011, Government’s
Agreed Motion for Summary Remand (5th Cir. Oct. 22, 2014); United
States v. Garcia-Duarte, No. 14-40516, United States’ Agreed Motion for
Summary Remand (5th Cir. Oct. 30, 2014); see also Brooks, 751 F.3d at
1213 n.7 (reviewing briefs filed by the government in cases originating in
the Sixth Circuit and concluding that “the Government has seemingly
22         UNITED STATES V. VALENCIA-MENDOZA

    In sum, the Supreme Court has held that courts must
consider both a crime’s statutory elements and sentencing
factors when determining whether an offense is “punishable”
by a certain term of imprisonment. Here, we are called on to
decide whether Defendant’s earlier offense was punishable
under Washington law by more than one year, and we can no
longer follow our earlier precedents that eschewed
consideration of mandatory sentencing factors. As noted,
Washington statutes prescribe a required sentencing range
that binds the sentencing court. The sentencing range can be
modified, or rendered inapplicable altogether, if but only if
the judge or the jury makes certain factual findings. In this
case, no such finding was made, so the court was bound to
adhere to the statutory sentencing range. Defendant’s
offense—as actually prosecuted and adjudicated—was
punishable under Washington law by no more than six
months in prison. The district court therefore erred by
concluding that his offense was punishable by more than one
year in prison.

     Sentence VACATED; REMANDED for resentencing.




taken contradictory positions on this issue in different federal courts”).
The government has failed to explain, either in briefing or at oral
argument, why its position has changed. Although the government’s
about-face does not affect our analysis, we note that some Justices have
concluded that “serious questions are raised when the sovereign itself
takes inconsistent positions in two separate criminal proceedings against
two of its citizens.” Bradshaw v. Stumpf, 545 U.S. 175, 189 (2005)
(Souter, J., joined by Ginsburg, J., concurring) (quoting Jacobs v. Scott,
513 U.S. 1067, 1070 (1995) (Stevens, J., dissenting from the denial of
certiorari)).
