FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ERIC QUINN FRANKLIN,

Defendant-Appellant.

No. 17-30011

D.C. No.

3:11-cr-05335-BHS-1

OPINION

Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted May 14, 2018

Seattle, Washington

Filed September 13, 2018

Before: Marsha S. Berzon, Stephanie Dawn Thacker,*

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Berzon

* The Honorable Stephanie Dawn Thacker, United States Circuit

Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by

designation.
2 UNITED STATES V. FRANKLIN

SUMMARY**

Criminal Law

Vacating a sentence for being a felon in possession of a

firearm and remanding for resentencing, the panel held that

Washington’s accomplice liability statute renders its drug

trafficking law broader than generic federal drug trafficking

laws under the Armed Career Criminal Act, and

Washington’s drug trafficking law is thus not categorically a

“serious drug offense” under the ACCA.

COUNSEL

Davina T. Chen (argued), Glendale, California, for

Defendant-Appellant.

Michael Symington Morgan (argued) and Gregory Gruber,

Assistant United States Attorneys; Hellen J. Brunner, First

Assistant United States Attorney; Annette L. Hayes, United

States Attorney; United States Attorney’s Office, Seattle,

Washington; for Plaintiff-Appellee.

** 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. FRANKLIN 3

OPINION

BERZON, Circuit Judge:

We consider whether Washington’s broad accomplice

liability statute renders an offense under its drug trafficking

law categorically broader than a “serious drug offense,” as

that term is defined in the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e)(2)(A).

I.

In September 2013, a jury convicted Eric Franklin of

being a felon in possession of a firearm, 18 U.S.C. § 922(g),

and committing several drug trafficking crimes. Franklin

appealed his convictions and sentence. This court affirmed

Franklin’s convictions but remanded for resentencing,

holding that the district court had not given Franklin an

adequate self-representation advisory under Faretta v.

California, 422 U.S. 806 (1975).

The district court resentenced Franklin to fifteen years’

imprisonment on the felon-in-possession offense.1 The court

calculated that sentence as the statutory minimum under the

ACCA. It reasoned that Franklin had “three previous

convictions . . . for a . . . serious drug offense,” 18 U.S.C.

§ 924(e)(1), because he was convicted in Washington state

court of three counts of unlawful delivery of a controlled

1 The district court also imposed a five-year sentence as to his

remaining convictions. Franklin has not challenged that sentence on

appeal.
4 UNITED STATES V. FRANKLIN

substance, Wash. Rev. Code § 69.50.401.

2 Franklin timely

appealed.

II.

We start—and end—with Franklin’s claim that

Washington accomplice liability is a mismatch for the

accomplice liability incorporated into the ACCA.

A.

The ACCA imposes a fifteen-year mandatory minimum

sentence on individuals convicted of being felons in

possession of a firearm who have 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

(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

2

In pertinent part, that statute provides that “it is unlawful for any

person to manufacture, deliver, or possess with intent to manufacture or

deliver, a controlled substance.” Wash. Rev. Code § 69.50.401(1).
UNITED STATES V. FRANKLIN 5

of imprisonment of ten years or more is

prescribed by law . . . .

18 U.S.C. § 924(e)(2)(A).

Federal courts conduct a categorical inquiry into whether

a prior state conviction qualifies as an ACCA predicate under

§ 924(e). Mathis v. United States, 136 S. Ct. 2243, 2247–48

(2016); Taylor v. United States, 495 U.S. 575, 600 (1990). 

Under that approach, “A prior conviction qualifies as an

ACCA predicate only if, after comparing the elements of the

statute forming the basis of the defendant’s conviction with

the elements of the generic crime—i.e., the offense as

commonly understood[—]the statute’s elements are the same

as, or narrower than, those of the generic offense.” United

States v. Jones, 877 F.3d 884, 887 (9th Cir. 2017) (internal

alterations and quotation marks omitted). If the elements of

the state crime are broader than those of the generic crime,

there is no categorical match and, absent application of the

modified categorical approach,3 the state crime cannot serve

as a predicate conviction under the ACCA. See United States

v. Strickland, 860 F.3d 1224, 1226–27 (9th Cir. 2017).

Under the categorical approach, we consider accomplice

liability as an element when comparing the reach of state

crimes and generic crimes. As the Supreme Court explained

in Gonzalez v. Duenas-Alvarez, “one who aids or abets a

[crime] falls, like a principal, within the scope of th[e]

generic definition” of that crime. 549 U.S. 183, 189 (2007). 

To take theft as an example, “the criminal activities of . . .

3 No party argues that the statutes before us are divisible, so we do not

address the modified categorical approach. See United States v. MartinezLopez, 864 F.3d 1034, 1038–39 (9th Cir. 2017) (en banc).
6 UNITED STATES V. FRANKLIN

aiders and abetters of a generic theft must themselves fall

within the scope of the term ‘theft’ in the federal statute.” Id.

at 190. If a state’s accomplice liability has “something

special” about it, and thus “criminalizes conduct” that the

comparable generic accomplice liability and the underlying

crime, taken together, do not, there is no categorical match. 

Id. at 191 (emphasis omitted).

B.

We recently considered, in United States v. ValdiviaFlores, 876 F.3d 1201 (9th Cir. 2017), whether Washington’s

accomplice liability statute renders its drug trafficking law

categorically broader than a federal drug trafficking

equivalent. Valdivia-Flores held that the Washington

accomplice liability law was too broad, and thus that a

conviction under Wash. Rev. Code § 69.50.401 does not

categorically constitute an “illicit trafficking” offense and is

not an “aggravated felony” under the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(B).4

Valdivia-Flores, 876 F.3d at 1210.

To give shape to what constituted aiding and abetting

“illicit trafficking” under the INA, Valdivia-Flores looked to

federal criminal law. Id. at 1207. Specifically, it adopted the

federal aiding and abetting standard, which requires the

government to prove an accomplice has “specific intent to

facilitate the commission of a crime by someone else.” Id.

(quoting United States v. Garcia, 400 F.3d 816, 819 (9th Cir.

4 As relevant here, “[t]he term ‘aggravated felony’ means . . . illicit

trafficking in a controlled substance (as defined in [21 U.S.C. § 802]),

including a drug trafficking crime (as defined in section 924(c) of

Title 18).” 8 U.S.C. § 1101(a)(43)(B).
UNITED STATES V. FRANKLIN 7

2005)). Washington law, by contrast, requires only that the

government prove a person “[w]ith knowledge that it will

promote or facilitate the commission of the crime, . . .

solicits, commands, encourages, or requests [the principal] to

commit it; or aids or agrees to aid [the principal] in planning

or committing it.” Wash.Rev. Code § 9A.08.020(3)(a)(i)–(ii)

(emphasis added).

Specific intent and knowledge are distinct in this context. 

“Intentionally abetting the commission of a crime involves a

more culpable state of mind than knowingly doing so, and it

is unlikely that Congress intended the generic ‘drug

trafficking’ listed in the INA to reach the less culpable

conduct that the Washington statute criminalize[s].” United

States v. Verduzco-Rangel, 884 F.3d 918, 923 n.3 (9th Cir.

2018). So, Validivia-Flores held, “[b]ecause the Washington

statute does criminalize conduct that would not constitute a

drug offense under federal law—due to the distinct aiding and

abetting definitions—it is overbroad.” 876 F.3d at 1209 n.3.

Valdivia-Flores cuts our path here. In that case, we

reiterated that accomplice liability is woven into the fabric of

all generic crimes. Id. at 1207. We looked to federal

criminal law’s concept of accomplice liability—including the

required intent mens rea—to sketch the contours of a generic

drug trafficking crime. Id. And we held that it is possible to

violate the Washington statute as an accomplice with

knowledge but not intent concerning the perpetrator’s

criminal activity. Id.

Franklin maintains that the same conclusion follows with

regard to whether the same Washington statute at issue in

Valdivia-Flores is a categorical match for the ACCA “serious

drug offense,” i.e., “an offense under State law, involving
8 UNITED STATES V. FRANKLIN

manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance.” 18 U.S.C.

§ 924(e)(2)(A). So our question is: Is there any pertinent

difference between the “serious drug offense” description in

the ACCA and the generic “illicit trafficking” described in

the statute analyzed in Valdivia-Flores that yields a different

result here on the categorical match issue?

The government puts forth a variety of arguments as to

why Valdivia-Flores does not control Franklin’s case. None

is persuasive.

C.

The government first contends we should not look to

federal law to define the generic crime of aiding and abetting

a “serious drug offense.” It maintains that Valdivia-Flores

took its definition of accomplice liability from federal law

only because the generic crime as defined in the INA arose

out of a federal criminal statute, and that, here, a “serious

drug offense” arises only out of state law.

Valdivia-Flores was not so limited. It relied on federal

law to supply accomplice liability elements for the entire

“aggravated felony” definition at issue—a definition that

refers both to federal drug crimes and to state law drug crimes

that constitute “illicit trafficking.” See 8 U.S.C.

§ 1101(a)(43)(B) (defining a drug trafficking aggravated

felony as “illicit trafficking in a controlled substance (as

defined in section 802 of Title 21), including a drug

trafficking crime (as defined in section 924(c) of Title 18)”

(emphasis added)); see also Verduzco-Rangel, 884 F.3d at

921 (describing the “two possible routes for a state drug

felony to qualify as a drug trafficking aggravated felony”). 
UNITED STATES V. FRANKLIN 9

Nowhere did Valdivia-Flores suggest that its holding was

limited to one portion of this definition. Rather, ValdiviaFlores held repeatedly and without limitation that the

Washington drug trafficking statute “does not qualify as an

aggravated felony under the categorical approach.” 876 F.3d

at 1210; see also id. at 1203, 1206, 1209.

Moreover, under the established methodology for

applying the categorical approach to recidivism statutes,

analogous federal law is always at least one aspect of the

inquiry into the meaning of the description of a state offense

in a federal statute. Here, that description is “serious drug

offense,” which, asDuenas-Alvarez held, and Valdivia-Flores

reiterated, necessarilyincludes both principal and accomplice

liability. So, as is usual, United States v. Garcia-Jimenez,

807 F.3d 1079, 1084–85 (9th Cir. 2015), we look to a variety

of sources—including federal statutes and case law, as well

as treatises and any majority state law approach—to

determine the generic federal crime, here, the federal

definition of accomplice liability.

5

In fact, when applying the categorical approach, we have

recently looked principally to federal criminal law to supply

definitions of generic inchoate crimes in both the Sentencing

Guidelines and the INA, although those statutes themselves

do not refer to specific federal crimes. United States v.

Brown, 879 F.3d 1043, 1047–50 (9th Cir. 2018), for example,

looked to federal conspiracy law to interpret the Sentencing

Guidelines’ generic definition of a “controlled substance

5

“Generic federal crime” has become the term used in this contextfor

what is essentially a task of statutory interpretation—i.e., the task of

deciding what the federal statute means when it uses certain language to

describe a prior offense. That is how we use the term here.
10 UNITED STATES V. FRANKLIN

offense”6; after doing so, Brown concluded that Washington’s

drug conspiracy law was broader than federal conspiracy law. 

And, of course, Valdivia-Flores took the same approach. In

fact, the government has itself suggested that the panel look

to federal criminal law to define other portions of the “serious

drug offense” statute here at issue. So we need not, and do

not, avert our eyes from federal accomplice liability when

defining the scope of the ACCA’s generic accomplice

liability.

Further, if we were to look to other sources as well to

supply a generic aiding and abetting definition for “serious

drug offenses,” we would reach the same result as did

Valdivia-Flores when considering only federal law. Like the

federal definition incorporated in Valdivia-Flores, general

principles of accomplice liability establish that “[a] person is

an ‘accomplice’ of another in committing a crime if, with the

intent to promote or facilitate the commission of the crime,”

he commits certain acts; “a person’s . . . knowledge that a

crime is being committed or is about to be committed,

without more, does not make him an accomplice.” 1

Wharton’s Criminal Law § 38 (15th ed.) (emphasis added). 

The Model Penal Code is similar: “A person is an accomplice

. . . if . . . with the purpose of promoting or facilitating the

commission of the offense, he” commits certain acts. 

§ 2.06(3) (emphasis added).

6

“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.” U.S.S.G.

§ 4B1.2(b).
UNITED STATES V. FRANKLIN 11

Federal law also comports with most other state

definitions of accomplice liability. Franklin’s brief

calculates, with supporting documentation, that “Washington

is one of at most five jurisdictions that requires only a mens

rea of knowledge for accomplice liability.” The government

has not disputed this summary nor provided any conflicting

information.

So, if we also look outside federal law to define generic

aiding and abetting liability for purposes of the ACCA, we

reach the same result as under Valdivia-Flores’s narrower,

federal-law-centered, approach.

D.

The government’s second argument as to why the

Washington accomplice liability standard is not a categorical

match for the INA’s “illicit trafficking,” but is for the

ACCA’s “serious drug offense,” is that, if we look to the text

of the ACCA’s “serious drug offense” definition, we’ll

discover that we need not incorporate accomplice liabilities

into our categorical approach at all.7 Not so.

7 The government first developed this set of arguments in its

supplemental briefing, following the issuance of Valdivia-Flores, not in

its primary answering brief. Franklin maintains the arguments are

therefore forfeited. We decline to find forfeiture. The government’s

categorical approach arguments largely arise out of the consequences of

Valdivia-Flores, issued after the government submitted its answering

brief. See Louisiana-Pacific Corp. v. ASARCO Inc., 24 F.3d 1565, 1583

(9th Cir. 1994). In any event, Franklin had a full opportunity to respond

to the government’s arguments in his supplemental brief. See Engquist v.

Or. Dep’t of Agric., 478 F.3d 985, 996 n.5 (9th Cir. 2007) (because

arguably waived “issues [were] purely legal and were fully briefed by [the

opposing party] . . . we exercise[d] our discretion to consider the[]

arguments).
12 UNITED STATES V. FRANKLIN

The government makes two textual arguments, one with

vast implications for application of the categorical approach

to a wide range of statutes, and one somewhat narrower. 

Most broadly, the government suggests that, because the

ACCA defines a “serious drug offense” as “an offense under

State law, involving manufacturing, distributing, or

possessing with intent to manufacture or distribute, a

controlled substance,” 18 U.S.C. § 924(e)(2)(A) (emphasis

added), we need not define a generic crime at all. Instead,

the government maintains, we simply look to see if the state

law includes the words “manufacturing, distributing, or

possessing,” and, if so, we are finished.

To apply this expansive version of the government’s

theory would be to toss out all but the name of the categorical

approach. At its core, the categorical approach is the

comparison of the defendant’s crime of conviction to a

generic version of that crime—that is, a version that contains

all of the ingredients Congress has identified, to which we

give content using our full panoply of statutory interpretation

resources. By so doing—“[b]y focusing on the legal question

of what a conviction necessarily established[—]the

categorical approach ordinarily works to promote efficiency,

fairness, and predictability.” Mellouli v. Lynch, 135 S. Ct.

1980, 1987 (2015); see Taylor, 495 U.S. at 590–92.

Put more simply, “[t]his categorical approach requires

courts to choose the right category.” Chambers v. United

States, 555 U.S. 122, 126 (2009), abrogated on other grounds

by Johnson v. United States, 135 S. Ct. 2551 (2015). No

matter how a statute is drafted, courts have applied the

categorical approach to some generic—that is, some

consistent and identifiable—criminal offense, with a

definition and elements and limits. And, as Duenas-Alvarez
UNITED STATES V. FRANKLIN 13

explained, “one who aids or abets a [crime] falls, like a

principal, within the scope of th[e] generic definition” of a

crime. 549 U.S. at 189. The government’s words-only

approach to inclusion of state laws in federal recidivism

statutes is therefore dead on arrival.

The government’s less ambitious textual argument starts

from the observation that, under the ACCA, a “serious drug

offense” can be either an offense defined under federal law,

or, as relevant here, “an offense under State law involving

manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance . . . .” 

18 U.S.C. § 924(e)(2)(A) (emphasis added). Focusing on the

state law prong’s use of the word “involving,” the

government notes that the statute at issue in Valdivia-Flores

does not use the term “involving,” and argues that that word

here obviates any need for comparison to generic aiding and

abetting liability. Instead, the government maintains, the

elements of Franklin’s state crime need only be examined to

determine whether they “relate to or connect with” any act

included as a “serious drug offense” (again, manufacturing,

distributing, or possessing). On this understanding, according

to the government, no inquiry is needed into whether the

aiding and abetting version of the state crime categorically

matches the generic crime of aiding and abetting the

enumerated drug offenses.

This attempt to escape the result reached in ValdiviaFlores also does not work. We begin by observing that, as a

linguistic matter, “involving” does not equate to “relating to

or connecting with.” “Relating to” is a “broad” and

“indeterminate” term, Mellouli, 135 S. Ct. at 1990, that means

that one thing “stands in some relation, bears upon, or is

associated with” another, United States v. Sullivan, 797 F.3d
14 UNITED STATES V. FRANKLIN

623, 638 (9th Cir. 2015) (quoting United States v. Sinerius,

504 F.3d 737, 743 (9th Cir. 2007)). “Involving” does not

have a single, uniform meaning, but it usually signifies

something narrower than “relating to.” Specifically,

“involving” often connotes “includ[ing] (something) as a

necessary part or result.” New Oxford American Dictionary

915 (3d ed. 2010).

This narrower meaning of the word “involving” is the one

used in Supreme Court cases and our cases to connote

application of the normal categorical inquiry—which, as we

reaffirmed in Valdivia-Flores, requires a comparison of

accomplice liabilities. For example, the Supreme Court has

held that offenses that “involve fraud or deceit [are] offenses

with elements that necessarily entail fraudulent or deceitful

conduct.” Kawashima v. Holder, 565 U.S. 478, 484 (2012)

(internal quotation marks and alteration omitted). Therefore,

Kawashima held, “[t]o determine whether the Kawashimas’

offenses ‘involv[e] fraud or deceit’ . . . we employ a

categorical approach.” Id. at 483 (citing Duenas-Alvarez,

549 U.S. at 186).

The Supreme Court used a similar approach earlier. In

interpreting the Racketeer Influenced and Corrupt

Organizations Act’s predicate offense provision, the Court

held that the phrase any “act or threat involving . . . extortion,

. . . which is chargeable under State law,” 18 U.S.C.

§ 1961(1) (emphasis added), encompasses only state crimes

“capable of being generically classified as extortionate.”

Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 409

(2003). According to Scheidler, the only crime that

“involv[es] extortion” is generic extortion; the word

“involving” does nothing to broaden the scope of that generic

crime. See id. at 409–10.
UNITED STATES V. FRANKLIN 15

Another example: In Sullivan, the defendant’s state

convictions “relate[d] to sexual abuse” because they

criminalized conduct similar to the most important elements

of sexual abuse. 797 F.3d at 641. But the convictions

“involve[d] a minor orward” because the conduct specifically

included acts against a minor or ward. Id. at 640.8

Notably, the ACCA uses the term “involve” to describe

both the “serious drug offense” and “violent felony”

predicates. See 18 U.S.C. § 924(e)(2). Just as a “serious drug

offense” can be “an offense under State law, involving”

certain elements, a “violent felony” can be any crime that

“involves use of explosives.” 18 U.S.C. §§ 924(e)(2)(A),

(e)(2)(B) (emphasis added). We have applied the standard

categorical approach—not the broader, looser one envisioned

by the government—to the ACCA’s violent felony predicate,

including its “involves use of explosives” predicate. See

United States v. Mayer, 560 F.3d 948, 958–61 (9th Cir. 2009)

(describing the categorical approach’s application to the

explosives prong of the definition of a violent felony). Thus

a crime “involves use of explosives” where it actually

constitutes the use of explosives; a crime somewhat like the

use of explosives, or a crime relating to the use of explosives,

does not necessarily “involve[] use of explosives.”

There is no reason we would apply one interpretation of

the word “involves” to “serious drug offenses” and a different

8 As noted, Sullivan interpreted a federal recidivist statute, the

meaning of which hinged on the broader term “relating to”—whether “the

specific state offenses at issue [t]here . . . [were] categorically offenses

‘relating to’” the defined federal generic sexual abuse offenses. 797 F.3d

at 640. Here, again, we are concerned with the narrower term

“involving,” which, unlike “relating to” in the categorical approach

context, connotes a narrower application.
16 UNITED STATES V. FRANKLIN

interpretation of the word to “violent felonies,” as both

predicate crimes are located in the same section of the

ACCA. “Generally, identical words used in different parts of

the same statute are presumed to have the same meaning.” 

Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit,

547 U.S. 71, 86 (2006) (quotation marks and alterations

omitted). That principle holds particularly true when, as here,

the word “involve” is used in the same section of the same

statute. Cf. Sessions v. Dimaya, 138 S. Ct. 1204, 1216–17

(2018) (plurality opinion) (explaining that the Supreme Court

“‘had good reasons’ for originally adopting the categorical

approach, based partly on ACCA’s text (which, by the way,

uses the word ‘involves’ identically [to a provision of the

INA])” (quoting Johnson, 135 S. Ct. at 2562)).9

9 The government cites several decisions of other circuits that, in

interpreting this statute, equate the two terms “involving” and “relating

to.” See United States v. Mulkern, 854 F.3d 87, 90 (1st Cir. 2017); United

States v. Bynum, 669 F.3d 880, 886 (8th Cir. 2012); United States v.

Vickers, 540 F.3d 356, 365 (5th Cir. 2008); but see Desai v. Mukasey,

520 F.3d 762, 766 (7th Cir. 2008) (in the context of the INA, “[i]f

Congress wanted a one-to-one correspondence between the state laws and

the federal [generic crime], it would have used a word like ‘involving’

instead of ‘relating to’”). We note that the cases holding that a “serious

drug offense” constitutes any act to “intentionally enter the highly

dangerous drug distribution world,” Bynum, 669 F.3d at 886 (internal

quotation marks omitted), may conflict with Mellouli’s rejection of a

similar approach under the INA. Mellouli rejected the Eighth Circuit’s

holding that the term “relating to” in the INA incorporated any state crime

“involving the drug trade in general.” 135 S. Ct. at 1989.

In any event, those decisions do not address how the term“involving”

affects the accomplice liability implied into the “serious drug offense”

definition, no matter how broadly that generic crime is otherwise

interpreted because of the “involving” predicate. So none addresses the

issue before us or conflicts with the result we reach.
UNITED STATES V. FRANKLIN 17

So, when we compare a state crime with a federal

predicate “involving” certain crimes (here, certain drugtrafficking crimes), we do so categorically. That means we

give content to the listed crimes—including their implied,

inchoate aiding and abetting version—and determine whether

elements of the state crime, including the inchoate versions,

match the elements of the federal crime. Valdivia-Flores

engaged in exactly that approach in determining what an

“illicit trafficking” crime entails as a generic matter. Nothing

about the ACCA’s definition of a “serious drug offense,”

including its use of the word “involving,” requires us to

deviate from it.

E.

To address a final government contention: Our holding

today creates no conflict with the Eleventh Circuit’s

interpretation of a “serious drug offense” in United States v.

Smith, 775 F.3d 1262, 1266–68 (11th Cir. 2014). Smith held

that, unlike the INA’s definition of a drug trafficking

aggravated felony, “[n]o element of mens rea with respect to

the illicit nature of the controlled substance is expressed or

implied” in the ACCA’s definition of a “serious drug

offense.” Id. at 1267.

Whether or not we agree with Smith’s interpretation of the

ACCA is of no relevance here. In Franklin’s case, we are

concerned not with mens rea as to the illegal nature of a

controlled substance, but instead with aiding and abetting a

“serious drug offense,” whatever drug is at issue. Our

concern as to accomplice liability, distinct from the issue in

Smith, is required by the Supreme Court under DuenasAlvarez, 549 U.S. at 189–91, and, for the reasons surveyed,

governed by Valdivia-Flores.
18 UNITED STATES V. FRANKLIN

III.

In sum, neither the categorical approach, nor ValdiviaFlores’s conclusion concerning Washington’s broader-thangeneric accomplice liability, lose force as they cross from one

statute to another. A conviction under Washington’s

accomplice liability statute renders its drug trafficking law

broader than generic federal drug trafficking laws under the

INA and, as we hold now, under the ACCA. Washington’s

drug trafficking law is thus not categorically a “serious drug

offense” under the ACCA.

Because Franklin’s three convictions under Washington

law could not constitute “serious drug offenses,” he was not

subject to the ACCA’s fifteen-year mandatory minimum

sentence, 18 U.S.C. § 924(e). We thus vacate Franklin’s

sentence for being a felon in possession of a firearm and

remand to the district court for resentencing as to that

conviction.

VACATED and REMANDED.