NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

BRANDON LAMONTE SORENSON, 

Defendant-Appellant.

No. 19-30082 

D.C. No. 

4:18-cr-00076-BMM-1 

MEMORANDUM*

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.

FILED

JUN 18 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

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 
3 

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. 
1

United States v. Brandon Sorenson, No. 19-30082

Paez, J., concurring:

 

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 

FILED

JUN 18 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

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, 
3

386–87 (6th Cir. 2019) (en banc) and United States v. Winstead, 890 F.3d 1082, 

1090–92 (D.C. Cir. 2018)).