MEMORANDUM DECISION AND ORDER

DAVID C. NYE, Chief District Judge.

I. OVERVIEW

Pending before the Court is Defendant Michael Davis' objection to the Presentence Investigation Report's designation of him as an armed career criminal under 18 U.S.C. § 924(e). Dkt. 26. As outlined below, the Court finds that Davis' conviction for delivery of a controlled substance under Idaho Code § 37-2732(a)(1)(A) constitutes a serious drug offense within the meaning of the Armed Career Criminal Act ("ACCA"). Accordingly, Davis' objection is OVERRULLED, his designation as an armed career criminal stands, and he will receive the appropriate enhancement.

II. BACKGROUND

On February 14, 2018, the Grand Jury indicated Davis on one count of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1), one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1), one count of distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and one count of distribution of marijuana in violation of 21 U.S.C. 841(a)(1). Dkt. 1. On May 15, 2018, Davis entered a guilty plea to counts one and two of the Indictment and agreed to the drug forfeiture contained in the Indictment. Dkt. 20.

On July 2, 2018, the United States Probation Office issued its Initial Presentence Investigation Report ("PSR") recommending an adjusted offense level of 30 and a four-point enhancement for having at least three prior felonies of either a crime of violence or a serious drug offense. The probation officer classified Davis as an armed career criminal under 18 U.S.C. § 924(e). Dkt. 30 at 5. Combined with the three-points in reductions for accepting responsibility and timely notifying authorities of his intention to enter a guilty plea, the Probation Office recommended Davis receive a total offense level of 31.

Davis objected to his designation as an Armed Career Criminal arguing that his Idaho conviction for Delivery of a Controlled Substance under §37-2732(a)(1)(A) does not categorically qualify as a "serious drug offense" within the meaning of the ACCA.

The government responded, arguing that a conviction under Idaho Code §37-2732(a)(1)(A), delivery of a controlled substance, is an offense involving the distribution of a controlled substance which qualifies as a "serious drug offense" under the ACCA and asking that Davis' objection be overruled. The United States Probation Office addressed Davis' objection in an Addendum to the PSR but did not make any changes to the original PSR calculations.

The Court was originally scheduled to sentence Davis on November 20, 2018. After hearing oral argument from both parties, the Court continued the sentencing to issue a written decision on Davis' objection. Here, the Court addresses the designation of Davis as an Armed Career Criminal.

III. LEGAL STANDARD

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 defined as:

18 U.S.C. § 924(e)(2)(A).

IV. DISCUSSION

When determining whether a prior conviction constitutes one of the crimes listed in the enumerated offense clause, courts utilize the "categorical approach" and "modified categorical approach" set forth in Taylor v. United States, 495 U.S. 575 (1990). See Mathis v. United States, 136 S.Ct. 2243, 2248-49 (2016). Under the categorical approach, the Court compares the elements of the state statute of conviction to the generic federal definition of a controlled substance offense.

Davis argues that Idaho's delivery of a controlled substance statute does not categorically qualify under the ACCA as a "serious drug offense." Davis cites to Sandoval v. Sessions, 866 F.3d 986, 989 (9th Cir. 2017) and asserts that because Idaho's delivery statute is overbroad (because it includes even the mere act of solicitation) the whole statute cannot qualify as a federal drug offense.1

The government counters that Sandoval does not include an expanding modifier, such as "involving." See 18 U.S.C. § 924(c)(2). In short, the government alleges that the word "involving," as found in 18 U.S.C. 924(e)(2)(A)(ii), establishes that the ACCA encompasses offenses that are related to and/or connected with distribution of a controlled substance—including even something like aiding and abetting or solicitation.

Davis, however, argues that a recent Ninth Circuit opinion, United States v. Franklin, 904 F.3d 793 (9th Cir. 2018), defeats the government's central statutory construction argument. The Court in Franklin explained the difference between "involved" and "related to." Ultimately, in that case, the Ninth Circuit found that the State of Washington's statutes were too broad to encompass a federal equivalent because the state statute required a different mens rea than that which was required at the federal level. There is a footnote in Franklin, however, that bolsters the government's argument in this case. After citing numerous out of Circuit cases that equate "involving" and "relating" the Franklin Court explained that:

904 F.3d 793, n.9. In the Government's estimation, this distinguishes Davis' situation and does not require that they read Davis' conduct—however big or small it might have been—out of the crime itself.2 The crime which Davis pled guilty to is a serious drug offense and even though there are portions of that crime which might3 not have a federal equivalent, any distinction has been written out (either by the Ninth Circuit's footnote or Idaho caselaw).

The situation before the Court today is fundamentally different than that which was presented in Franklin. In Franklin, the Court imposed a limitation because the mens rea was different between the State statute and its federal equivalent. In Idaho, however, that is not the case. See Idaho Code 18-2001; Idaho Criminal Jury Instruction 311 ( "the law makes no distinction between a person who directly participates in the acts constituting a crime and a person who either before or during its commission, intentionally aids, assists, facilitates, promotes, encourages, counsels, solicits, invites, helps or hires another to commit a crime with intent to promote or assist in its commission. Both can be found guilty of the crime"). Furthermore, in State v Johnson, 145 Idaho 970 (2008), Idaho abolished the distinction between principals and aiders and abettors and instead treats aiding and abetting as a theory under which the crime can be proved and not as a separate offense or a crime of a different nature. In this way, Idaho law is consistent with the analysis in Franklin.

In this case, the Court finds that Idaho Code § 37-2732 does qualify as a serious drug offense as defined in the ACCA in that it is "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), and that even if the Court were to look further in the statute and address solicitation,4 there is no meaningful difference in Idaho. The enumerated crimes have a federal counterpart and the statute is not overly or impermissible broad.

V. CONCLUSION

Davis was convicted of violating Idaho Code § 37-2732(a)(1)(A), not Idaho Code § 37-2732(h), Idaho Code § 18-204, or some other "solicitation" type crime. The categorical approach requires "assessing whether the full range of conduct covered by a statute falls within the pertinent term." United States v. Grajeda, 581 F.3d 1186, 1189 (9th Cir. 2009). Here, the conduct enumerated in Idaho Code § 37-2732 meets that test. Accordingly, the Court finds that the probation officer relied on the statute of conviction and correctly determined that it met the definition of a serious drug offense under the ACCA.

VI. ORDER

The Court HEREBY ORDERS: