                                                                            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                           NOT FOR PUBLICATION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probation was revoked and he was resentenced.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.




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