United States v. Eric Franklin

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 ...

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