NOT FOR PUBLICATION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 APPEALS2

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 conv iction,” 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. Simmo ns , 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 criminaliz ing 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 encompasses3

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, 99 2 (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 argu ments 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. 1 9

- 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, o ur holding in United States v. Shumate , 329 F.3 d 1026 (9th Cir. 2003) did not bind the Crum majority to hold that mere offers to sell are categorically controlled substance offenses

. T he drug statute at issue in Shumate , Or. Rev. Stat § 475.992, concerned cases in which “a person solicits another to

e ngage 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
th e Oregon statute triggered the G uidelines 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 APPEALS2 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 equat ing “ [a] mere offer to deliver a
controlled substance” with “th e 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 G uideline’s text. I agree with the Crum majority that Application Note 1 errs in sweep ing 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 r econsider 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)).