                              NOT FOR PUBLICATION                          FILED
                       UNITED STATES COURT OF APPEALS                       APR 1 2020
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                         No.    19-30011

                   Plaintiff-Appellee,            D.C. No.
                                                  1:18-cr-046-DCN
     v.

MICHAEL LANCE DAVIS, AKA Michael                  MEMORANDUM*
Scott Davis,

                   Defendant-Appellant.

                      Appeal from the United States District Court
                                for the District of Idaho
                      David C. Nye, Chief District Judge, Presiding

                          Argued and Submitted March 6, 2020
                                   Portland, Oregon

Before: McKEOWN and PAEZ, Circuit Judges, and HUCK,** District Judge.

          Michael Davis pleaded guilty to unlawful possession of a firearm in violation

of 18 U.S.C. § 922(g)(1) and possession of methamphetamine with intent to

distribute in violation of 21 U.S.C. § 841(a)(1). His plea agreement included an



*
      This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
       The Honorable Paul C. Huck, Senior United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
appeal waiver, which contained an exception preserving the right to appeal if “[t]he

sentence imposed by the court exceeds the statutory maximum[.]” At sentencing,

the district court determined that Davis was an armed career criminal under the

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on three predicate

offenses, including an Idaho conviction for delivery of a controlled substance. Davis

objected to this determination on the ground that his Idaho delivery conviction did

not qualify as a “serious drug offense.” The district court overruled the objection

and sentenced Davis to 170 months1 in prison followed by 5 years of supervised

release. For the reasons that follow, we affirm the district court’s determination that

Davis’s Idaho conviction for delivery of a controlled substance qualifies as a

“serious drug offense” under the ACCA.

      We reject the government’s argument and hold that Davis did not waive his

right to appeal an improper ACCA designation and sentence. See United States v.

Pollard, 850 F.3d 1038, 1041 (9th Cir. 2017) (“even a valid appellate waiver does

not prevent courts from reviewing an illegal sentence, that is, one that exceeds the

permissible statutory penalty for the crime or violates the Constitution” (internal

citation and quotation marks omitted)); United States v. Tighe, 266 F.3d 1187, 1195

(9th Cir. 2001) (holding that a sentence for a § 922(g) conviction based on an


1
 The district court sentenced Davis below the ACCA mandatory minimum of fifteen
years because it granted a downward departure for “substantial assistance” pursuant
to United States Sentencing Guidelines Section 5K1.1.

                                          2
incorrect ACCA designation was “in excess of the applicable statutory maximum”

of “10 years”).

        Under the ACCA, an individual convicted of being a felon in possession of a

firearm is subject to a fifteen-year mandatory minimum sentence and maximum of

life imprisonment if that individual has three prior convictions for “a violent felony

or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). A “serious drug offense”

is defined as:

              (i) an offense under the Controlled Substances Act (21
              U.S.C. 801 et seq.), the Controlled Substances Import and
              Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title
              46, for which a maximum term of imprisonment of ten
              years or more is prescribed by law; or

              (ii) an offense under State law, involving manufacturing,
              distributing, or possessing with intent to manufacture or
              distribute, a controlled substance (as defined in section
              102 of the Controlled Substances Act (21 U.S.C. 802)), for
              which a maximum term of imprisonment of ten years or
              more is prescribed by law[.]

18 U.S.C. § 924(e)(2)(A).

        To determine whether a prior state conviction qualifies as an ACCA “serious

drug offense,” courts apply the Kawashima2 categorical approach. Shular v. United

States, 140 S. Ct. 779, 784–85 (2020). Rather than comparing the elements of the

state offense to a federal generic offense, the Kawashima categorical approach



2
    Kawashima v. Holder, 565 U.S. 478 (2012).

                                          3
requires courts to “ask whether the state offense’s elements necessarily entail one of

the types of conduct identified in § 924(e)(2)(A)(ii).” Id. at 784 (internal citation

and quotation marks omitted). Therefore, the question for this Court is whether

Idaho delivery of a controlled substance “necessarily entails” manufacturing,

distributing, or possessing with intent to manufacture or distribute, a controlled

substance.

       Davis was convicted under Idaho Statute section 37-2732(a), which states that

“it is unlawful for any person to . . . deliver, or possess with intent to . . . deliver, a

controlled substance.”     I.C. § 37-2732(a).       To violate this statute, one must

necessarily engage in conduct “involving” distribution of a controlled substance.

This holds true under Idaho’s accomplice liability theory as well. Contrary to

Davis’s assertion, one cannot be convicted as an accomplice under this statute for

“merely soliciting delivery.” Idaho accomplice liability requires that the substantive

crime actually be committed, i.e., that a controlled substance be distributed. See

Rome v. State, 431 P.3d 242, 253 (Idaho 2018) (explaining that Idaho’s “aiding-and-

abetting statute . . . requires that the person actively participate in the commission

[of] the crime in some manner and have the specific intent that the crime be

committed”). Thus, Davis’s conviction for Idaho delivery of a controlled substance

necessarily involved distribution of a controlled substance and, as such, qualifies as

a “serious drug offense” under the ACCA.


                                            4
      Davis’s final argument does not alter this conclusion. Davis contends that

Idaho delivery of methamphetamine does not qualify as a “serious drug offense”

because, at the time of Davis’s delivery conviction, Idaho’s definition of

methamphetamine included all isomers of methamphetamine, while the federal

definition is limited solely to optical isomers. Davis did not raise this argument

below and we conclude that there was no plain error. See Fed. R. Crim. P. 52(b) (“A

plain error that affects substantial rights may be considered even though it was not

brought to the court’s attention.”).

      For these reasons, the district court correctly determined that Davis’s Idaho

conviction for delivery of a controlled substance qualified as a “serious drug

offense” and, therefore, we affirm Davis’s sentence.

      AFFIRMED.




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