United States v. Simha Furaha (9th Cir. March 2021)

The Federal Docket

Sentencing Guidelines/Career Offender – A defendant’s conviction under 18 USC 924(c) can constitute a “controlled substance offense” under U.S.S.G. 4B1.2 applying the modified categorical approach.

Simha Furaha was convicted of possession of a firearm by a convicted felon, and he appealed his sentence based on the district court’s application of a sentencing enhancement under 2K2.1(a)(4)(A), which provides for enhancements where a defendant has a prior conviction for a “controlled substance offense.” The conviction in question was a prior conviction for possession of a firearm in furtherance of a “drug trafficking crime” under 924(c).

The Court held that the 924(c) was not a categorical match, since 924(c)’s definition of drug trafficking crime encompasses simple possession, but that it was appropriate to apply the modified categorical approach. Since the jury must make a finding of a predicate offense as an element of 924(c) to convict a defendant, the statute is divisible and it is proper to examine the papers to determine the specifics of a defendant’s offense.

Under the modified categorical approach, the Court looked at the plea agreement in the prior case involving 924(c). The plea agreement reflected that, in addition to the 924(c) count, the defendant had pleaded guilty to two other drug trafficking crimes that could serve as predicates for his 924(c) conviction and fell under the definition of “controlled substance offenses” under 4B1.2.

Appeal from the Northern District of California
Opinion by Smith, joined by Wallace and Lasnik (by designation from W.D. Wash)

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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