                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               No. 16-30218
           Plaintiff-Appellee,
                                          D.C. No.
              v.                    3:15-cr-05521-BHS-1

MICHAEL N. BROWN,
        Defendant-Appellant.                OPINION


      Appeal from the United States District Court
        for the Western District of Washington
      Benjamin H. Settle, District Judge, Presiding

        Argued and Submitted October 2, 2017
                Seattle, Washington

                   Filed January 16, 2018

  Before: Kim McLane Wardlaw, Richard R. Clifton,
          and John B. Owens, Circuit Judges.

              Opinion by Judge Clifton;
             Concurrence by Judge Owens
2                   UNITED STATES V. BROWN

                            SUMMARY*


                           Criminal Law

    The panel vacated a sentence and remanded for
resentencing in a case in which the district court determined
that the defendant’s previous conviction for drug conspiracy
under Washington state law qualified as a “controlled
substance offense” for purposes of U.S.S.G. 2K2.1(a)(4)(A).

    The panel held that the definition of conspiracy within the
Washington Criminal Code – including the provision in RCW
§ 9A.28.040(f) that allows for a conviction when the other
party to the conspiracy is a law enforcement officer or other
government agent who did not intend that a crime be
committed – applies to the drug conspiracy offense defined
in RCW Title 69. The panel held that, as a result, the
Washington drug conspiracy statute covers conduct that
would not be covered under federal law, and the Washington
drug conspiracy statute is therefore not a categorical match to
conspiracy under federal law. The panel held that the district
court therefore erred in determining that the defendant’s prior
conviction qualified as a “controlled substance offense” under
the Sentencing Guidelines, and concluded that the error was
not harmless.

    Concurring, Judge Owens wrote that this case – though
correctly decided under current Supreme Court law – typifies
how far the Taylor categorical approach has deviated from
common sense.

    *
      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. BROWN                     3

                        COUNSEL

Davina T. Chen (argued), Glendale, California, for
Defendant-Appellant.

Amy Jaquette (argued), Assistant United States Attorney;
Annette L. Hayes, United States Attorney; United States
Attorney’s Office, Seattle, Washington; for Plaintiff-
Appellee.


                         OPINION

CLIFTON, Circuit Judge:

    Defendant Michael N. Brown appeals the district court’s
sixty-month sentence for being a felon in possession of a
firearm. In calculating the appropriate range under the
Sentencing Guidelines, the district court determined that a
base offense level of twenty applied because Brown’s
previous conviction for drug conspiracy under Washington
state law qualified as a “controlled substance offense.” We
conclude that the conviction does not so qualify because the
Washington drug conspiracy statute is not a categorical match
to conspiracy under federal law. We reverse and remand for
resentencing.

I. Background

    Brown pled guilty to one count of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). At sentencing, the district court held, over
Brown’s objection and lacking precedent from this court
resolving the issue, that Brown’s 2005 conviction by guilty
4                UNITED STATES V. BROWN

plea for conspiracy to distribute methamphetamine in
Washington state was a “controlled substance offense” for
purposes of U.S.S.G. § 2K2.1(a)(4)(A). The district court
calculated a Sentencing Guidelines range of sixty-three to
seventy-eight months. The district court sentenced Brown to
sixty months of incarceration and three years of supervised
release. Brown timely appealed.

II. Discussion

     Brown argues that the district court erred in calculating
his Sentencing Guidelines range. Specifically, Brown
contends that the Washington drug conspiracy statute does
not qualify as a controlled substance offense under the
Sentencing Guidelines because it is overbroad. The reason,
he argues, is that Washington law allows for a conspiracy
conviction when the only other party is a law enforcement
officer or informant who does not actually intend to take part
in the conspiracy. Those facts would not support a conviction
for conspiracy under federal law.

    To determine whether a prior state conviction is a
controlled substance offense for purposes of the Sentencing
Guidelines, federal courts employ the categorical approach
set forth in Taylor v. United States, 495 U.S. 575 (1990).
Under the categorical approach, we are concerned only with
the fact of conviction and the statutory definition of the
underlying offense. Id. at 600. “If a state law proscribes the
same amount of or less conduct than that qualifying [under
federal law], then the two offenses are a categorical match.”
United States v. Martinez-Lopez, 864 F.3d 1034, 1038 (9th
Cir. 2017) (en banc) (internal quotation marks omitted). But
“[i]f the statute of conviction sweeps more broadly than the
generic crime, a conviction under that law cannot
                     UNITED STATES V. BROWN                                5

categorically count as a qualifying predicate, even if the
defendant actually committed the offense in its generic form.”
United States v. Hernandez, 769 F.3d 1059, 1062 (9th Cir.
2014) (per curiam) (alterations incorporated) (internal
quotation marks omitted).1

A. Standard of Review

    In sentencing appeals, “we review the district court’s
identification of the correct legal standard de novo and the
district court’s factual findings for clear error.” United States
v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc).
Further, “as a general rule, a district court’s application of the
Sentencing Guidelines to the facts of a given case should be
reviewed for abuse of discretion.” Id.

    There is an exception to that general rule, however, when
it comes to application of the categorical approach, because
under the categorical approach “[n]othing turns on the
particulars of the defendant’s own prior offense.” Id. at 1174.
“[E]ither all convictions under a particular statute qualify or
none do.” Id. (citing Descamps, 133 S. Ct. at 2287). The
issue in Gasca-Ruiz was whether a prior conviction qualified
as a “crime of violence,” and we concluded that “determining
whether a particular conviction qualifies as a crime of



    1
       If there is not a categorical match, a court may ask if the statute is
divisible. Martinez-Lopez, 864 F.3d at 1038. If “a defendant was
convicted of violating a divisible statute,” a court may employ the
modified categorical approach, for which it must “identify, from among
several alternatives, the crime of conviction so that the court may compare
it to the generic offense.” Descamps v. United States, 133 S. Ct. 2276,
2285 (2013). Neither party argues that the Washington drug conspiracy
statute is divisible.
6                UNITED STATES V. BROWN

violence is akin to formulating a rule of general application,
a matter properly reviewed de novo.” Id.

    The same reasons for applying de novo review to
determinations of whether a prior conviction is a “crime of
violence” also apply to whether a prior conviction is a
“controlled substance offense.” Though a more searching
standard of review in the instant case does not affect the
outcome of this case, we review the district court’s
determination of whether Brown’s prior conviction was a
controlled substance offense de novo.

B. Application of the Categorical Approach

    U.S.S.G. § 2K2.1(a)(4)(A) provides a base offense level
of twenty if “the defendant committed any part of the instant
offense subsequent to sustaining one felony conviction of
either a crime of violence or a controlled substance offense.”
§ 2K2.1(a)(4)(A). The definition of “controlled substance
offense” is the same as that provided in U.S.S.G. § 4B1.2(b).
§ 2K2.1 cmt. n.1. Section 4B1.2 explains:

       The term “controlled substance offense”
       means an offense under federal or state law,
       punishable by imprisonment for a term
       exceeding one year, that prohibits the
       manufacture, import, export, distribution, or
       dispensing of a controlled substance (or a
       counterfeit substance) or the possession of a
       controlled substance (or a counterfeit
       substance) with intent to manufacture, import,
       export, distribute, or dispense.
                 UNITED STATES V. BROWN                        7

§ 4B1.2(b). Here, the relevant offense was Brown’s 2005
state court conviction for conspiracy to deliver
methamphetamine in violation of RCW §§ 69.50.401(1) and
69.50.407. Under Washington state law, for sentencing
purposes the offense was “unranked,” with a standard
sentence of zero to twelve months.

    Under federal law, a defendant cannot be convicted of
conspiracy if the only alleged coconspirator is a federal agent
or informant. See United States v. Lo, 447 F.3d 1212, 1225
(9th Cir. 2006) (“[T]he agreement in a conspiracy cannot be
established with evidence that the defendant had an
agreement with a government informer.”).

     The Revised Code of Washington includes both a general
conspiracy statute, located in Title 9A of the Criminal Code,
and a separate statute for drug conspiracy, located in Title 69,
pertaining to Food, Drugs, Cosmetics, and Poisons. The
general conspiracy statute states: “A person is guilty of
criminal conspiracy when, with intent that conduct
constituting a crime be performed, he or she agrees with one
or more persons to engage in or cause the performance of
such conduct, and any one of them takes a substantial step in
pursuance of such agreement.” RCW § 9A.28.040(1).
Subsection (2)(f) of the same section of the Criminal Code
provides that “[i]t shall not be a defense to criminal
conspiracy that the person or persons with whom the accused
is alleged to have conspired . . . [i]s a law enforcement officer
or other government agent who did not intend that a crime be
committed.” RCW § 9A.28.040(2)(f).

    The Washington drug conspiracy statute provides: “Any
person who attempts or conspires to commit any offense
defined in this chapter is punishable by imprisonment or fine
8                   UNITED STATES V. BROWN

or both which may not exceed the maximum punishment
prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.” § 69.50.407. The terms
“conspires” and “conspiracy” are not defined within this
section or anywhere in Title 69 of the Revised Code of
Washington. A section in the Criminal Code states that its
provisions may apply to offenses defined in other titles: “The
provisions of this title shall apply to any offense committed
on or after July 1, 1976, which is defined in this title or the
general statutes, unless otherwise expressly provided or
unless the context otherwise requires, and shall also apply to
any defense to prosecution for such an offense.” RCW
§ 9A.04.010(2).

    The important question for this case is whether the
definition of conspiracy within the Criminal Code, including
the qualification in subsection (2)(f), applies to the drug
conspiracy offense defined in Title 69. We conclude that it
does. As a result, the Washington drug conspiracy statute
covers conduct that would not be covered under federal law,
and Brown’s conviction under the Washington statute is not
a categorical match.2

    2
       Our decision is consistent with decisions of three other federal
district courts in Washington state that have concluded that § 69.50.407
is not a categorical match to federal generic conspiracy because it allows
for a unilateral agreement when the other party is a law enforcement
officer who does not intend to commit a crime. See United States v.
Myers, 2:15-CR-00045-JLQ, dkt. no. 95 at 5–6 (E.D. Wash., filed August
21, 2017) (“The court found Defendant’s drug conspiracy conviction to be
overbroad and not a predicate offense under U.S.S.G. [§] 2K2.1(a).”);
United States v. Phillips, 1:15-CR-02033-SAB-1, dkt. no. 81 at 13 (E.D.
Wash., filed January 10, 2017) (“The defendant’s 2009 state conviction
for conspiracy does not qualify as a controlled substance offense, because
the Washington conspiracy statute is overbroad, in the court’s opinion.”);
United States v. Webb, 166 F. Supp. 3d 1198, 1202–03 (W.D. Wash.
                   UNITED STATES V. BROWN                             9

    The history of how subsection (2)(f) came to be enacted
helps to explain our conclusion. In 1994, the Washington
Supreme Court held, in reviewing a conviction for, among
other crimes, conspiracy to deliver controlled substances, that
an agreement between the defendant and a sole coconspirator
who was actually an undercover police officer did not satisfy
the requirement under the conspiracy statute for an actual
agreement between coconspirators. State v. Pacheco,
882 P.2d 183, 185–87 (Wash. 1994). The court concluded:
“[T]he State has not persuaded us the Legislature intended to
abandon the traditional requirement of an actual agreement.
We hold [§] 9A.28.040 and [§] 69.50.407 require the
defendant to reach a genuine agreement with at least one
other coconspirator.” Id. at 188.

    In response to Pacheco, the Washington Legislature
amended the general conspiracy statute by adding
§ 9A.28.040(2)(f). See 1997 Wash. Legis. Serv. Ch. 17 (S.B.
5085). Nothing in the amendment mentioned § 69.50.407,
the Washington drug conspiracy statute, or stated that it
amended § 9A.04.010(2), the Criminal Code section that
states that provisions in the Criminal Code apply to crimes
defined in other titles of the Revised Code of Washington.
Washington courts have continued to apply § 9A.04.010(2)
to hold that the definition of conspiracy in Title 9A and Title
69 are the same. See, e.g., State v. Pineda-Pineda, 226 P.3d
164, 172 (Wash. Ct. App. 2010) (“We hold the crime of
controlled substance conspiracy is concomitant with
conspiracy as defined in RCW [§] 9A.28.020. There is
nothing contrary or inconsistent between the controlled


2016) (holding that the two Washington conspiracy statutes are
“concomitant,” and that “a defendant may be convicted under
[§] 9A.28.040 or [§] 60.50.407 for conspiring with a government agent”).
10                  UNITED STATES V. BROWN

substance conspiracy and the Washington Criminal Code
definition of conspiracy.”).

    The government’s arguments to the contrary are
unpersuasive.3 First, the government submits that, even
though Pacheco discussed both § 9A.28.040 and § 69.50.407,
the Washington legislature amended only the former statute.
The Washington Supreme Court “presume[s] that the
legislature enacts laws ‘with full knowledge of existing
laws.’” Maziar v. Wash. State Dep’t of Corr., 349 P.3d 826,
828 (Wash. 2015) (quoting Thurston Cty. v. Gorton, 530 P.2d
309, 312 (Wash. 1975)). Section 9A.04.010(2) was one of
those existing laws. Because the provisions in Title 9A apply
to offenses defined elsewhere, there was no need to amend
§ 69.50.407 separately. Accordingly, we cannot presume that


     3
       The government argues that Washington courts have continued to
rely on Pacheco for the proposition that conspiracy under state law
requires a bilateral agreement. The issue here is what effect subsection
(2)(f), which created an exception to the bilateral conspiracy requirement
when a coconspirator is a law enforcement officer who lacks the intent to
commit a crime, had on § 69.50.407. It is undisputed that, aside from the
exception created by the 1997 amendment, Pacheco is still good law, and
the cases cited by the government simply confirm this. See, e.g., State v.
Blair, No. 67874-4-I, 2013 WL 791854, at *4–6 (Wash. Ct. App. Feb. 25,
2013) (reversing a lower court order for arrest of judgment where there
was sufficient evidence of a bilateral agreement to possess marijuana with
intent to deliver); State v. Millyard, No. 28242-2-III, 2010 WL 5158176,
at *1–2 (Wash. Ct. App. Dec. 21, 2010) (affirming a conviction for
conspiracy to possess marijuana with intent to deliver where there was a
bilateral agreement between the defendant and a coconspirator, the
defendant delivered marijuana to the coconspirator, and the coconspirator
subsequently delivered the marijuana to a government informant); State
v. Kraabell, No. 35752-6-II, 2008 WL 852808, at *4 (Wash. Ct. App. Apr.
1, 2008) (concluding, in part, that the absence of a cautionary instruction
regarding the uncorroborated testimony of an accomplice did not affect the
jury’s verdict).
                    UNITED STATES V. BROWN                            11

the Washington legislature failed to recognize that any
changes to § 9A.28.040 would apply to § 69.50.407.

   Second, the government argues that, where two statutes
conflict, the more specific statute controls. Here, § 69.50.407
does not define conspiracy. The definition of conspiracy is
provided by § 9A.28.040, and that includes subsection (2)(f).
That does not put the statutes in conflict.

    Third, the government argues that § 69.50.407 was not
impliedly repealed. We have not concluded that it was. The
drug conspiracy statute remains on the books and may
properly be enforced. It was simply amended, in effect, by
the addition of subsection (2)(f) to the general conspiracy
statute. Nothing prevents § 9A.28.040 and § 69.50.407 from
standing side by side.4

    Finally, the government argues that, even if the panel
were to find that § 69.50.407 is not a categorical match to
federal conspiracy, Brown has not identified a specific
instance where Washington has applied the drug conspiracy
statute in a manner that proves it is overbroad. See Gonzales
v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (holding that to
find a state statute overbroad “requires a realistic probability,
not a theoretical possibility, that the State would apply its
statute to conduct that falls outside the generic definition of
a crime”). Brown has explained the absence of appellate

    4
      The government also argues that the logical conclusion of Brown’s
argument pits the penalty provisions of § 9A.28 against § 69.50.407. This
is simply not true. Section 69.50.407 has its own penalty provisions for
drug conspiracy, and “[a] general statutory provision normally yields to
a more specific statutory provision.” W. Plaza, LLC v. Tison, 364 P.3d 76,
80 (Wash. 2015). That does not mean that subsection (2)(f) cannot
logically apply to both conspiracy statutes.
12               UNITED STATES V. BROWN

decisions discussing this subject by noting that the relatively
light sentence that would result from a drug conspiracy
conviction, with a standard sentencing range of zero to twelve
months, as noted above at 6–7, encourages prosecutors to
charge violations that carry more substantial sentences.
Convictions under the drug conspiracy statute, he contends,
generally result from negotiations and guilty pleas, which do
not produce appeals. Perhaps more to the point, “if a state
statute explicitly defines a crime more broadly than the
generic definition, no legal imagination is required to hold
that a realistic probability exists that the state will apply its
statute to conduct that falls outside the generic definition of
the crime.” Chavez-Solis v. Lynch, 803 F.3d 1004, 1009–10
(9th Cir. 2015) (internal quotation marks omitted).
Washington conspiracy is explicitly more broad than the
generic federal definition.

C. Harmless Error

    The Sentencing Guidelines are advisory, but any
calculation error “is a significant procedural error that
requires us to remand for resentencing.” United States v.
Martinez, 870 F.3d 1163, 1165–66 (9th Cir. 2017) (internal
quotation marks omitted). “The Supreme Court has made
clear that the district court must correctly calculate the
recommended Guidelines sentence and use that
recommendation as ‘the starting point and the initial
benchmark.’” United States v. Munoz-Camarena, 631 F.3d
1028, 1030 (9th Cir. 2010) (per curiam) (some citations and
internal quotation marks omitted) (quoting Kimbrough v.
United States, 552 U.S. 85, 108 (2007)). A district court must
also “adjust upward or downward from that point, and justify
the extent of the departure from the Guidelines sentence.” Id.
                 UNITED STATES V. BROWN                    13

    The government has argued that any error here was
harmless, but we do not agree that it is so certain that the
district court would have imposed the same sentence. The
sentence imposed on Brown did represent a downward
departure of three months from the bottom of the Sentencing
Guidelines range as calculated by the district court. The same
sentence would have represented an upward departure of
nineteen months from the upper end of the range if calculated
without treating Brown’s prior conviction as a conviction for
a controlled substance offense. The use of an incorrect
starting point and the failure to keep the proper Sentencing
Guidelines range in mind as the sentencing decision was
made constituted “a significant procedural error,” and the
case must be remanded for resentencing. Id.

III.     Conclusion

   The district court erred when calculating Brown’s
Sentencing Guidelines range, and that error was not harmless.
Accordingly, Brown’s sentence is vacated, and this case is
remanded for resentencing.

       SENTENCE VACATED; REMANDED.



OWENS, Circuit Judge, concurring:

    All good things must come to an end. But apparently bad
legal doctrine can last forever, despite countless judges and
justices urging an end to the so-called Taylor categorical
approach. See United States v. Valdivia-Flores, 876 F.3d
1201, 1210–11 (9th Cir. 2017) (O’Scannlain, J., specially
concurring) (collecting cases). This case – though correctly
14               UNITED STATES V. BROWN

decided under current Supreme Court law – typifies how far
this doctrine has deviated from common sense.

    Here, one lawyer zealously argues that Washington law
criminalizes a “conspiracy of one,” while the other lawyer
strenuously contends for a narrower reading. Surely, the
prosecutor is the one swinging for the fences, and the defense
attorney the one pushing for lenity. In state court, you would
be right. But we are in federal court, so a defense attorney
ethically must play the role of the aggressive prosecutor,
pushing for the most expansive reading of state law possible.
She succeeded: she has established that the state law is
broader than the federal law, so there is no categorical match,
which favors her client. But this role reversal confirms that
this is a really, really bad way of doing things. Defense
attorneys should not be forced to argue for expanding
criminal liability to benefit their clients, but in the Taylor
Upside Down, that is what necessarily happened here.

    Instead of wasting more resources and interjecting more
uncertainty into our sentencing (and immigration) decisions,
either the Supreme Court or Congress should junk this entire
system. See United States v. Perez-Silvan, 861 F.3d 935, 944
(9th Cir. 2017) (Owens, J., concurring) (urging simplification
“to avoid the frequent sentencing adventures more
complicated than reconstructing the Staff of Ra in the Map
Room to locate the Well of the Souls”).

    A regime based on the length of previous sentences,
rather than on the vagaries of state law, is the way to go. See
Almanza-Arenas v. Lynch, 815 F.3d 469, 483 (9th Cir. 2016)
(en banc) (Owens, J., concurring) (“A better mousetrap is
long overdue. Rather than compete with Rube Goldberg, we
instead should look to a more objective standard, such as the
                 UNITED STATES V. BROWN                    15

length of the underlying sentence[.]”); U.S.S.G. supp. app. C,
amend. 802 at 156–57 (Nov. 1, 2016) (amending U.S.S.G.
§ 2L1.2 to account for most prior convictions “primarily
through a sentence-imposed approach” and “eliminate[] the
use of the categorical approach, which has been criticized as
cumbersome and overly legalistic”).
