UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30169 Plaintiff-Appellee, D.C. No. v. 1:19-cr-00096-SPW-1

ROBERT ANTHONY HOUSE, Defendant-Appellant. OPINION

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Submitted November 10, 2021 * Portland, Oregon

Filed April 15, 2022

Before: Susan P. Graber and Morgan Christen, Circuit Judges, and George H. Wu, ** District Judge.

* The panel unanimously concluded this case was suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). ** The Honorable George H. Wu, United States District Judge for the Central District of California, sitting by designation. 2 UNITED STATES V. HOUSE

Per Curiam Opinion; Concurrence by Judge Graber; Concurrence by Judge Christen; Concurrence by Judge Wu

SUMMARY ***

Criminal Law

The panel affirmed in part, reversed in part, and remanded for resentencing in a case in which Robert Anthony House pleaded guilty to being a prohibited person in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and (g)(3).

At sentencing, the district court ruled that two of House’s prior felony convictions—a 2007 conviction under Montana Code Annotated § 45-9-103 for criminal possession of dangerous drugs with intent to distribute (“2007 marijuana conviction”) and a 2013 conviction under Montana Code Annotated §§ 45-2-302 and 45-9-101 for accountability as to criminal distribution of dangerous drugs (“2013 cocaine conviction”)—qualified as “controlled substance offenses” under USSG § 4B1.2(b). The district court, in turn, applied the enhancement in USSG § 2K2.1(a)(2).

The panel accepted the government’s concession that United States v. Bautista, 989 F.3d 698 (9th Cir. 2021), is controlling as to the sentencing enhancement based on the 2007 marijuana conviction, and that this court should

*** 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. HOUSE 3 remand for resentencing without treating the marijuana conviction as a qualifying offense.

As to whether the 2013 cocaine conviction is a qualifying prior controlled substance offense, House raised two arguments.

House first argued that “the plain language of the § 4B1.2 guideline and commentary definition of a controlled substance offense does not include offers to engage in prohibited conduct,” while Montana's accountability statutes do, rendering the latter categorically overbroad. Because it was bound by United States v. Crum, 934 F.3d 963 (9th Cir. 2019) (per curiam), the panel held that although Montana’s accountability statutes include offers to engage in prohibited conduct, they are not rendered categorically overbroad with respect to §§ 4B1.2(b) and 2K2.1(a).

House argued, second, that Montana's drug statute is categorically overbroad because its definition of cocaine includes substances that are either not set forth in the federal definition and/or are specifically excluded. Because House raises new arguments on appeal, the panel reviewed the district court’s sentencing calculation for plain error as to those contentions. The panel observed (1) that when the district court reached its decision that a cocaine conviction under Montana Code Annotated §§ 45-9-101 and 50-32- 224(1)(d) could constitute a controlled substance offense under § 4B1.2(b), there was no (and there still is no) binding precedent to the contrary; and