                           NOT FOR PUBLICATION                           FILED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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