United States v. Eric Franklin , 904 F.3d 793 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30011
Plaintiff-Appellee,
D.C. No.
v. 3:11-cr-05335-BHS-1
ERIC QUINN FRANKLIN,
Defendant-Appellant. 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. Martinez-
Lopez, 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. Valdivia-
Flores, 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, Valdivia-
Flores 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, as Duenas-Alvarez held, and Valdivia-Flores
reiterated, necessarily includes 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 context for
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 Valdivia-
Flores 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 or ward” 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 drug-
trafficking 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 Duenas-
Alvarez, 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 Valdivia-
Flores’s conclusion concerning Washington’s broader-than-
generic 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.