1 – OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

No. 3:16-cr-00028-HZ

Plaintiff,

OPINION & ORDER

v.

NICKOLAUS ALLEN HARMS, 

Defendant.

Scott M. Kerin

United States Attorney’s Office, District of Oregon

1000 S.W. 3rd Avenue, Suite 600

Portland, OR 97204

Attorney for Plaintiff

Michelle M. Sweet

Elizabeth Gillingham Daily

Office of the Federal Public Defender

101 S.W. Main Street, Suite 1700

Portland, OR 97204

Attorneys for Defendant 

Case 3:16-cr-00028-HZ Document 41 Filed 10/31/17 Page 1 of 15
2 – OPINION & ORDER

HERNÁNDEZ, District Judge:

In determining the appropriate sentence for Defendant Nickolaus Harms, this Court 

concludes that a prior Oregon Unlawful Delivery of a Controlled Substance—Heroin conviction 

is a “controlled substance offense” under United States Sentencing Guidelines (“U.S.S.G.” or 

“Guidelines”) § 2K2.1. 1The Court also decides that a conviction for Oregon Attempted Assault 

II is not a “crime of violence” under the Guidelines.

STANDARD

Federal firearms defendants are subject to an enhanced Sentencing Guidelines range 

when they commit a firearm offense after sustaining one or more felony convictions of a 

“controlled substance offense” or a “crime of violence.” U.S.S.G. 2K2.1(a); see also United 

States v. Park, 649 F.3d 1175, 1177 (9th Cir. 2011); United States v. Crews, 621 F.3d 849, 851 

(9th Cir. 2010). To determine whether a prior offense is a “controlled substance offense” or a 

“crime of violence,” the Application Notes to U.S.S.G. § 2K2.1 refer to the meaning given those 

terms in U.S.S.G. § 4B1.2(a)-(b) and Application Note 1 of the Commentary to § 4B1.2. 

DISCUSSION

I. Unlawful Delivery of a Controlled Substance

A conviction under Oregon Revised Statute § (O.R.S.) 475.850, Unlawful Delivery of a 

Controlled Substance—Heroin, qualifies as a “controlled substance offense” under the 

Guidelines. In reaching this conclusion, the Court relies on the Ninth Circuit’s decision in United 

States v. Shumate. 329 F.3d 1026 (9th Cir. 2003), amended on denial of reh'g, 341 F.3d 852 (9th 

Cir. 2003).

 

1 The Court received written briefs and heard argument from the parties at Defendant’s sentencing hearing 

on September 6, 2017. At sentencing, the Court indicated that it would issue this written Opinion & Order 

explaining how Defendant’s prior convictions impacted this Court’s analysis under the Guidelines.

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3 – OPINION & ORDER

O.R.S. 475.850 provides that “[i]t is unlawful for any person to deliver heroin.” Under 

the Guidelines, a “controlled substance offense” means: 

[A]n 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) and 2K2.1, Commentary n.1. Furthermore, “controlled substance offense”

includes the offenses of aiding and abetting, conspiring, and attempting to commit such offenses. 

U.S.S.G. § 4B1.2, Commentary n.1.

In Shumate, the Ninth Circuit considered whether the defendant’s conviction for delivery 

of a controlled substance under Oregon law was a felonious controlled substance offense for 

Guidelines purposes. Shumate, 329 F. 3d at 1029. The defendant argued that the Guidelines’

application note, which stated that “‘controlled substance offense’ include[s] the offenses of 

aiding and abetting, conspiring, and attempting to commit such offenses,” did not include 

“solicitation.” Id. (quoting U.S.S.G. § 4B1.2, Commentary n.1). Because the defendant might 

have been convicted of “mere solicitation” under Oregon law, the defendant argued that the 

Oregon conviction was not within the Guidelines’ meaning. The Court rejected the defendant’s 

argument because it found no facts to demonstrate that he was not convicted of delivery of 

marijuana. Id. While the Court considered the possibility that the defendant was convicted in 

Oregon for solicitation of delivery of marijuana, it concluded that the solicitation would 

nevertheless be sufficient for his conviction to qualify as a controlled substance offense under § 

4B1.1. Thus, an Oregon conviction for unlawful delivery of heroin qualifies as a predicate 

offense under the Guidelines. 

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4 – OPINION & ORDER

The Ninth Circuit’s recent decision in Sandoval suggests, but does not require a different 

result. See Sandoval v. Sessions, No. 13-71784, 2017 WL 3400955 (9th Cir. Jan. 27, 2017). In 

Sandoval, the Ninth Circuit noted that Oregon law permits conviction for delivery based on 

“mere solicitation.” Id. at *1. The Ninth Circuit concluded that the defendant’s Oregon 

conviction for delivery of a controlled substance was not a categorical match to an aggravated 

felony under the Controlled Substances Act, because the Act does not punish soliciting delivery 

of controlled substances. Id.

However, there are key differences between the Controlled Substances Act at issue in 

Sandoval and the Guidelines, as addressed in Shumate. The Guidelines state that “‘controlled 

substance offense’ include[s] the offenses of aiding and abetting, conspiring, and attempting to 

commit such offenses.” U.S.S.G. § 4B1.2, Commentary n.1 (emphasis added). The Ninth Circuit 

highlighted the word “include” in its Shumate opinion, noting that elsewhere in the Guidelines it 

states that “the term ‘includes’ is not exhaustive.” U.S.S.G. § 1B1.1, Commentary n. 2. 

Therefore, the word “include” in § 4B1.2 “allows inclusion of solicitation for controlled 

substance offenses.” Shumate, 329 F.3d at 1030. See also United States v. Cox, 74 F.3d 189, 190 

(9th Cir. 1996) (“[T]he Guidelines themselves instruct us that when they use the term “includes” 

they do not mean to be exhaustive . . . . Consequently, the omission of solicitation from the list 

does not carry legal significance.”); United States v. Beltran-Ochoa, 540 F. App'x 646 (9th Cir. 

2013) (“solicitation is sufficiently similar to the offenses listed in the application note to be 

encompassed by the note”) (internal quotation omitted); United States v. Juszczak, 320 F. App'x 

558, 559 (9th Cir. 2009) (at sentencing, challenging the characterization of a solicitation offense 

as a controlled substance offense would have been meritless). 

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5 – OPINION & ORDER

In contrast, in Sandoval, the Ninth Circuit considered that “knowingly distributing or 

possessing with intent to distribute heroin violates the Controlled Substances Act.” Sandoval, 

2017 WL 3400955, at *2 (citing 21 U.S.C. § 841(a)(1)). The Court continued: 

The term “distribute” means “deliver.” See 21 U.S.C. § 802(11). And “deliver” means 

“the actual, constructive, or attempted transfer of a controlled substance or a listed 

chemical, whether or not there exists an agency relationship.” Id. § 802(8). Accordingly, 

one may commit a drug trafficking crime by actually delivering, attempting to deliver or 

possessing with intent to deliver heroin.

Id. (emphasis added). Unlike Shumate, there was no word such as “include” that would allow the 

Court to allow the inclusion of “solicitation” in the list of ways one may commit a drug 

trafficking crime. Instead, the Court had to resolve whether attempted delivery itself included the 

solicitation of delivery. The Court concluded that “attempt” did not include solicitation. Id. at *5 

(“simply offering to deliver a controlled substance is not an aggravated felony”). See also LeyvaLicea v. I.N.S., 187 F.3d 1147, 1150 (9th Cir. 1999) (“[T]he Controlled Substances Act neither 

mentions solicitation nor contains any broad catch-all provision that could even arguably be read 

to cover solicitation[.]”). Therefore, the possibility of a conviction for solicitation under Oregon 

law meant that the defendant’s Oregon conviction was not a categorical match to an aggravated 

felony under the Controlled Substances Act. 

Defendant raises two arguments in his Reply to Government Sentencing Memorandum. 

See ECF 34. First, Defendant correctly states that Oregon courts have interpreted “delivery” to 

include the attempted transfer of a controlled substance from one person to another, and offering 

to sell a controlled substance—solicitation—constitutes an attempted transfer. See, e.g., State v. 

Pollock, 189 Or. App. 38, 73 P.3d 297 (2003), aff'd on other grounds, 337 Or. 618, 102 P.3d 684 

(2004). Defendant argues that neither § 4B1.2 nor the application note to § 4B1.2 encompass 

“mere offers to deliver a controlled substance.” Def.’s Reply 2, ECF 34. Clearly, § 4B1.2, which 

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6 – OPINION & ORDER

prohibits “the manufacture, import, export, distribution, or dispensing of a controlled substance

(or a counterfeit substance)” and prohibits “the possession of a controlled substance (or a 

counterfeit substance) with intent to manufacture, import, export, distribute, or dispense,” does 

not apply to offers to deliver a controlled substance. However, Defendant in essence asks this 

Court to disregard Shumate, which has not been overruled. Pursuant to Shumate, the application 

note to § 4B1.2 in the Guidelines does encompass solicitation of another to engage in the 

delivery of marijuana. Thus, offering to another to deliver a controlled substance is included in 

the Guidelines, according to the Ninth Circuit. 

Alternatively, Defendant contends that, even if “solicitation” is included in the 

application note to § 4B1.2, the Court has to determine whether Defendant’s Oregon conviction 

establishes the elements of the generic definition of solicitation. The Ninth Circuit recently 

defined “solicitation” as the “act or an instance of requesting or seeking to obtain something.” 

Sandoval, 2017 WL 3400955, at *6 (quoting Solicitation, Black's Law Dictionary (10th ed. 

2014)). Defendant argues that the Oregon law under which he was convicted is overbroad 

because it reaches mere offers to sell or deliver a controlled substance, conduct that does not 

qualify as a generic solicitation to commit a controlled substance offense. 

On this point, Defendant’s argument is undermined by the Ninth Circuit’s opinion in 

United States v. Lee, 704 F.3d 785 (9th Cir. 2012). In Lee, the Court found that the defendant 

pled guilty to selling or offering to sell a controlled substance. Id. at 791. Such conduct fell 

“squarely within the definition of controlled substance offense” under the Guidelines. Id. at 790. 

The defendant argued that “offering to sell” should not be considered a controlled substance 

offense because it describes merely a solicitation offense. Id. at n. 2. The Court rejected his 

argument, which relied on out-of-circuit decisions, and stated that “[u]nder the law of this circuit

Case 3:16-cr-00028-HZ Document 41 Filed 10/31/17 Page 6 of 15
7 – OPINION & ORDER

. . . solicitation qualifies as a controlled substance offense. . . . [W]e are bound by this 

precedent.” Id. (citing Shumate, 329 F.3d at 1031–32). 

Defendant provides illustrations of cases from the Fifth, Second, and Tenth Circuits that 

have reached different conclusions than the Ninth Circuit. See United States v. Madkins, No. 15-

3299, 2017 WL 3389367 (10th Cir. Aug. 8, 2017); United States v. Hinkle, 832 F.3d 569, 571 

(5th Cir. 2016); United States v. Price, 516 F.3d 285 (5th Cir. 2008); United States v. Savage, 

542 F.3d 959 (2d Cir. 2008). However, none of these cases discussed whether “offering to sell” 

qualifies as generic solicitation. Instead, they concluded, for other reasons, that offering to sell is 

not a categorical match for a “controlled substance offense.” Thus, they do not undermine the 

Ninth Circuit’s reasoning in Shumate. And, of course, they are not controlling. See, e.g., United

States v. Chappell, No. CRIM. 03-30013, 2011 WL 3050199, at *3 (W.D. La. June 7, 2011), 

report and recommendation adopted, No. CRIM. 03-30013-03, 2011 WL 3107069 (W.D. La. 

July 25, 2011) (noting that “not all appellate courts have followed the [Fifth Circuit]” and citing 

to the Ninth Circuit’s decision in Shumate).

Finally, Defendant argues that the Court in Shumate “was never presented with the 

argument that a mere offer to sell would satisfy Oregon’s state drug delivery statute, but would 

not qualify as a controlled substance offense.” Def.’s Reply 15-16. However, Shumate and Lee, 

read together, answer the question that Defendant presents. Shumate stands for the proposition 

that a defendant may commit a “controlled substance offense” by soliciting another to commit 

such an offense; Lee adds that “offering to sell” is a solicitation offense. Together, they point to 

the conclusion that a mere offer to sell is a controlled substance offense.2Therefore, Defendant’s 

 

2 To the extent this conclusion conflicts with Sandoval, this Court relies on its analysis above regarding 

the differences between the Guidelines and the Controlled Substances Act. 

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8 – OPINION & ORDER

prior conviction for Unlawful Delivery of a Controlled Substance—Heroin qualifies as a 

“controlled substance offense” under the Guidelines. 

II. Attempted Assault II

Defendant’s conviction for Attempted Assault II does not qualify as a “crime of 

violence” under the Guidelines because Oregon’s attempt law is broader than the federal generic 

definition of attempt.

3

See United States v. Gomez-Hernandez, 680 F.3d 1171, 1175 (9th Cir. 

2012) (“[W]e must determine whether the defendant's conviction establishes that he committed 

the elements of the generic definition of ‘attempt’ and that the underlying offense he attempted 

meets the generic definition of that offense.”).

Under the Guidelines, a “crime of violence” is:

[A]ny offense under federal or state law, punishable by imprisonment for a term 

exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical 

force against the person of another, or 

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a 

forcible sex offense, robbery, arson, extortion, or the use or unlawful 

possession of a firearm described in 26 U.S.C. § 5845(a) or explosive 

material as defined in 18 U.S.C. § 841(c).

U.S.S.G. § 4B1.2(a). 

Oregon’s attempt law states that “[a] person is guilty of an attempt to commit a crime 

when the person intentionally engages in conduct which constitutes a substantial step toward 

commission of the crime.” O.R.S. 161.405. The federal generic definition of attempt is “the 

specific intent to ‘engage in criminal conduct and . . . an overt act which is a substantial step 

towards committing the crime.’” United States v. Sarbia, 367 F.3d 1079, 1086 (9th Cir. 2004)

 

3 The Court previously reached the same conclusion in United States v. Freeman. See Sentencing Hr’g Tr. 

16, United States v. Freeman, No. 3:15-cr-00448-HZ, ECF 90. This Opinion & Order provides the parties 

with a written explanation of the Court’s reasoning.

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9 – OPINION & ORDER

(quoting United States v. Gracidas–Ulibarry, 231 F.3d 1188, 1192 (9th Cir. 2000) (en banc)).

The definitions are facially similar and both rely on a “substantial step” requirement. However, 

because Oregon courts interpret “substantial step” in a broader manner than federal caselaw, then 

Oregon’s attempt law cannot be a categorical match with federal attempt law: 

[T]o find that a state statute creates a crime outside the generic definition of a listed crime 

in a federal statute requires more than the application of legal imagination to a state 

statute's language. It requires a realistic probability, not a theoretical possibility, that the 

State would apply its statute to conduct that falls outside the generic definition of a crime. 

To show that realistic possibility, an offender, of course, may show that the statute was so 

applied in his own case. But he must at least point to his own case or other cases in which 

the state courts in fact did apply the statute in the special (nongeneric) manner for which 

he argues.

United States v. Saavedra-Velazquez, 578 F.3d 1103, 1109 (9th Cir. 2009) (quoting Gonzales v. 

Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

There are several cases in which defendants were convicted under Oregon attempt law 

because their solicitation of a crime was viewed as an “attempt.” In 1991, the Oregon Supreme 

Court upheld a defendant’s convictions of attempted kidnapping, attempted sodomy, and 

attempted rape. State v. Walters, 311 Or. 80, 82, 804 P.2d 1164, 1165 (1991). In assessing 

whether the defendant’s conduct constituted a “substantial step” towards the commission of each 

crime, the court considered that the defendant repeatedly offered a young girl money to get into 

his truck, followed the girl home when she refused his offers, asked the girl’s mother if she had a 

daughter, and made statements to the police such as he “could have found [himself] in an 

uncomfortable position today and didn’t mean to” and the girl was “13 going on 24.” Id. at 83-

85, 804 P.2d at 1166-67. Such behavior, the court concluded, constituted a “substantial step,” 

because it “strongly corroborate[d] his criminal purpose.” Id. at 86, 804 P.2d at 1168. The court

cited to the Model Penal Code, which defined an act as “strongly corroborative of the actor’s 

criminal purpose” when the act “(1) advance[d] the criminal purpose charged and (2) provide[d] 

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10 – OPINION & ORDER

some verification of the existence of that purpose.” Id. at 85, 804 P.2d at 1167. The court further 

explained that Oregon’s adoption of the “substantial-step” test resulted in the inclusion, “as an 

‘attempt,’ of conduct that is more remote from the attainment of the criminal objective than was 

the case under prior Oregon law.” Id. at 86, 804 P.2d at 1168 (substantial-step test “would tend 

to move back the line between preparation and attempt to allow the police authorities to 

intervene sooner than under present Oregon law”). In other words, Oregon’s adoption of the 

“substantial step test” was intended to broaden the reach of the attempt statute.

Four years later, the Ninth Circuit granted the State v. Walters defendant’s writ for habeas 

corpus, finding that insufficient evidence supported the state court convictions for attempted rape 

and attempted sodomy. Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). The Ninth Circuit 

reiterated that “[t]o constitute a substantial step toward the commission of a crime, the 

defendant’s conduct must (1) ‘advance the criminal purpose charged, and (2) provide some 

verification of the existence of that purpose.’” Id. at 1358–59 (citing State v. Walters, 804 P.2d 

1167). The Ninth Circuit acknowledged that “[t]he difference between making preparations and 

taking a substantial step toward the commission of a crime is one of degree.” Id. at 1359. The 

Ninth Circuit concluded that, where the only step that the defendant took towards the 

commission of rape and sodomy was his attempt to entice the girl into his truck, such act did not 

strongly corroborate his intent to commit those crimes (even if it corroborated his intent “to some 

extent”). Id. at 1360. Thus, his behavior did not constitute a “substantial step” for the purposes of 

attempt law. However, the Ninth Circuit agreed with the Oregon Supreme Court that the 

defendant’s conduct constituted a substantial step towards the commission of the crime of firstdegree kidnapping. Id. at 1359. In so noting, the Ninth Circuit suggested that Oregon courts used 

the same “substantial step” standard as an earlier Ninth Circuit decision. Id. (citing United States 

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11 – OPINION & ORDER

v. Scott, 767 F.2d 1308, 1312 (9th Cir. 1985), in which the court considered whether the 

defendant’s conduct was “strongly corroborative of his criminal intent” and whether the act “was 

adapted to, approximating, and in the ordinary and likely course of things would have resulted in 

the commission of the intended crime”). This Court concludes that, while the standard may 

sometimes be similarly articulated by the Ninth Circuit and Oregon courts, the application has 

differed.

The Oregon Court of Appeals decided State v. Rinkin in 1996. 141 Or. App. 355, 917 

P.2d 1035, (1996). While it noted that Maas had differed from Walters on the issue of whether 

the defendant’s conduct was sufficiently corroborative of the charged criminal purpose, the court 

stressed that it was bound by the decisions of the Oregon Supreme Court. Id. at 365, 917 P.2d at 

1041. The court in Rinkin assessed whether the defendant’s conduct “in (1) engaging in a series 

of stranger-to-stranger contacts with a 10–year–old boy; (2) speaking with him about ‘skipping 

school’; (3) offering him inducements to come to his apartment alone; and (4) offering to show 

him sexually explicit material, could reasonably be regarded as verifying a criminal purpose” of 

attempted sodomy. Id. at 366, 917 P.2d at 1042 (noting that the “verification” requirement 

requires conduct that is referable to some criminal purpose, whereas the “advance the purpose” 

component can be satisfied even by conduct that arguably could promote a variety of ends, both 

criminal and noncriminal). The court expressly relied on the Walters analysis to conclude that 

“there was evidence . . . from which the jury could find beyond a reasonable doubt that 

defendant's conduct constituted a substantial step toward the commission of sodomy[.]” Id. at 

367, 917 P.2d at 1042.

In 2005, the Oregon Court of Appeals decided State v. Johnson, 202 Or. App. 478, 123 

P.3d 304 (2005). In that case, the defendant was convicted of attempted murder and solicitation 

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12 – OPINION & ORDER

to commit murder. There was evidence that he had a phone conversation in which he asked a 

friend to help him kill his wife and daughter. Johnson, 202 Or. App. at 481–82, 123 P.3d at 306. 

The defendant argued that his phone conversation could not constitute a substantial step for 

purposes of attempt. Id. at 486, 123 P.3d at 308. The Johnson court rejected that argument and 

held that solicitation can qualify as a “substantial step” if, under the facts, the defendant's actions 

exceed mere preparation, advance the criminal purpose charged, and provide some verification 

of the existence of that purpose. Id. at 489, 123 P.3d at 310. 

The Oregon Court of Appeals has applied the Johnson holding to subsequent cases. See 

e.g., State v. Badillo, 260 Or. App. 218, 223 (2013) (defendant’s solicitation of another to 

commit burglary constituted a substantial step towards committing the offense) (citing State v. 

Sargent, 110 Or. App. 194, 198 (1991) (“[I]f a person solicits another to engage in conduct 

constituting an element of the crime of delivery, . . . the person has taken a substantial step 

toward committing the crime of attempted delivery.”)); State v. Kimbrough, 285 Or. App. 84, 89 

(2017) (relying on Badillo and Johnson to explain that “[t]here is no special rule regarding 

whether a solicitation is also an attempt”). All of these cases reiterate that, under the right

circumstances in Oregon, solicitation can constitute attempt. 

In Sandoval, the Ninth Circuit considered whether the defendant’s prior Oregon 

conviction for delivery of heroin qualified as a “drug trafficking crime” under the Controlled 

Substances Act, such that it would render him ineligible for cancellation of removal under the 

Immigration and Nationality Act. Sandoval, 2017 WL 3400955 at *1. Under Oregon law, the 

term “deliver” includes the attempted transfer of a controlled substance from one person to 

another. O.R.S. 475.005(8) (emphasis added). An attempt occurs when a person “intentionally 

engages in conduct which constitutes a substantial step toward commission of a crime.” O.R.S. 

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13 – OPINION & ORDER

161.405(1). The Court concluded that, under Oregon law, an offer to deliver a controlled 

substance—the act of soliciting delivery—is enough to complete a substantial step toward an 

intended transfer. Sandoval, 2017 WL 3400955, at *5. In other words, the offer to deliver a 

controlled substance (“the act of soliciting delivery) is an attempt under Oregon law. Id. Because 

soliciting delivery is an attempted delivery under Oregon law, a defendant could be convicted of

O.R.S. 475.992(1)(a)—unlawful delivery of heroin—based on soliciting delivery. Since a 

defendant could not be convicted of a drug trafficking crime under the Controlled Substances 

Act based on soliciting delivery, the Ninth Circuit concluded that the Oregon conviction was not 

a categorical match to a drug trafficking crime. Id. at *6. Although the Sandoval Court’s holding 

was specific to attempted delivery under the Controlled Substances Act and focused on state 

drug crimes rather than assault, the Court’s reasoning involved the generic federal definition of 

attempt, and the Court noted that its state law analysis was consistent with non-drug attempt 

cases. Id. at *5 (citing Johnson, 123 P.3d 304, 309-10) (involving the meaning of substantial step 

for purposes of a conviction for attempted murder)).

The present case differs from Sandoval in that the issue here is not whether Defendant’s 

Oregon conviction is a categorical match to a drug trafficking crime under the Controlled 

Substances Act. The issue is whether his Oregon attempt conviction is a categorical match to 

federal generic attempt. Nevertheless, Sandoval controls. Because Sandoval held that the act of 

soliciting is an attempt under Oregon law, then Oregon’s attempt would only be a categorical 

match to federal attempt if soliciting qualifies as federal attempt. 

Soliciting does not qualify as a federal attempt. The probable desistance test—the 

requirement that a defendant's “actions unequivocally demonstrate that the crime will take place 

unless interrupted by independent circumstances”—is incorporated into the federal generic 

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definition of attempt. United States v. Garcia-Jimenez, 807 F.3d 1079, 1088 (9th Cir. 2015)

(citing United States v. Gonzalez-Monterroso, 745 F.3d 1237, 1243 (9th Cir. 2014)). In other 

words, the “step toward commission of the crime” must be “of such substantiality that, unless 

frustrated, the crime would have occurred.” United States v. Saavedra-Velazquez, 578 F.3d 1103, 

1107 (9th Cir. 2009) (quoting United States v. Buffington, 815 F.2d 1292, 1303 (9th Cir. 1987)). 

For example, the Ninth Circuit held in United States v. Yossunthorn that the defendant’s act of 

making an appointment to purchase heroin, along with the defendant’s surveillance of the 

proposed meeting place, was insufficiently substantial to support a conviction for attempted 

possession of heroin with intent to distribute. 167 F.3d 1267, 1271 (9th Cir. 1999) (While “[t]he 

government does not have to wait until the transaction is complete[,] ... it needs more evidence of 

a substantial step....”) (quoting United States v. Cea, 914 F.2d 881 (7th Cir. 1990)). This is a 

more stringent standard than the substantial step test as applied in Oregon courts. 

The Court recognizes that at least one Ninth Circuit case suggests a different result. See

United States v. Pena-Robles, 479 F. App'x 747 (9th Cir. 2012).

4

In Pena-Robles, an unpublished 

opinion, the Ninth Circuit found that Oregon’s definition of attempt is “coextensive” with the 

federal generic definition: 

The Oregon attempt statute, ORS § 161.405 . . . is coextensive with the generic attempt 

offense. The text of the definitions are the same, and there is no operational difference in 

their application. 

United States v. Pena-Robles, 479 F. App'x 747, 749 (9th Cir. 2012) (internal citations omitted).

However, Pena-Robles does not have precedential value nor has it been cited by any subsequent 

 

4 The Government also points to Diego v. Sessions, 857 F.3d 1005, 1015 (9th Cir. 2017), a case in which 

the Ninth Circuit applied the modified categorical approach and held that attempted first degree sexual 

abuse under Oregon state law is an aggravated felony under federal immigration law. The Ninth Circuit in 

Diego, however, did not consider whether Oregon's attempt statute matches the generic federal definition 

of attempt because the argument was raised for the first time on the day of oral argument. Id. at 1015 n.4 

(finding the argument waived). Therefore, this case is not helpful. 

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15 – OPINION & ORDER

case. See Ninth Cir. Rule 36–3(a); United States v. Bare, 806 F.3d 1011, 1021 (9th Cir. 2015)

(Kozinski, J., dissenting) (“[O]ur rules clearly state that unpublished dispositions aren’t 

authority. . . . And for good reason: They generally aren't worded carefully enough to govern 

future cases, nor are they exposed to the type of en banc scrutiny to which published opinions are 

subjected.”). Therefore, Pena-Robles does not alter this Court’s conclusion that Oregon’s attempt 

law is broader than the federal generic attempt definition. For this reason, Defendant’s Oregon 

Attempted Assault II conviction is not a “crime of violence” under the Guidelines. 

CONCLUSION

Oregon Unlawful Delivery of a Controlled Substance—Heroin conviction is a “controlled 

substance offense” under the Guidelines, but a conviction for Oregon Attempted Assault II is not 

a “crime of violence” under the Guidelines.

IT IS SO ORDERED.

Dated this _____________ day of ________________________________, 2017.

 

________________________________________________

MARCO A. HERNÁNDEZ

United States District Judge

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