Not a Single Washington Conviction Counts as a Crime of Violence or Controlled Substance Offense Under the Guidelines! And the Same for Indiana, Iowa, Massachusetts, Nebraska, and Oklahoma.

December 27, 2017
By Hanging Out with Carl Gunn


  • A recent Ninth Circuit opinion recognizes that the Washington aiding and abetting statute is broader than generic aiding and abetting because it requires mere knowledge, not specific intent.
  • The same opinion then recognizes the modified categorical approach can’t be used to distinguish conviction as a principal from conviction as an aider and abettor because Washington doesn’t require a jury to unanimously choose between these two theories of liability, so there’s not the divisibility that the modified categorical approach requires.
  • The bottom line effect is that no Washington conviction can count as a crime of violence or drug offense under either the immigration statutes – which was what the recent Ninth Circuit opinion had before it – or the guidelines.



Yes, you read right!  How could that be, you ask?  Well, let’s step back to some basic principles and go through them step by step.  First, aiding and abetting liability is implicitly included as an option in every criminal charge, regardless of whether it’s expressly alleged.  See Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 189 (2007).  Second, that doesn’t stop a prior conviction from being categorized as a crime of violence or controlled substance offense under the career offender guideline or other guidelines, because those terms are defined by the guidelines to include aiding and abetting, conspiracy, and attempt.  See U.S.S.G. § 4B1.2, comment. (n.1) (“‘Crime of violence’ and ‘controlled substance offense’ include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.”)  Third, these alternative ways of committing a crime – aiding and abetting, conspiracy, and attempt – have a standard, generic definition, just like substantive crimes do.  See, e.g., United States v. Gonzalez-Monterroso, 745 F.3d 1237, 1240 (9th Cir. 2014) (so holding for “attempt”).  Fourth, if a particular state’s definition of one of these alternatives is broader than the standard, generic definition, a conviction under that alternative can’t qualify as a crime of violence or controlled substance offense under the categorical approach.  See, e.g., Gonzalez-Monterroso, 745 F.3d at 1244-45 (holding Delaware attempt conviction did not qualify as crime of violence because Delaware attempt statute broader than standard, generic definition of attempt).

This should now be triggering a question for you – to be asked in any state, but for the purposes of this post to be asked about Washington.  Is the Washington definition of aiding and abetting the same as the standard, generic definition, or is it broader? And the answer you’ll find is it’s broader.  Where the federal definition – and that of most states – requires an aider and abettor to have the specific intent to facilitate the commission of the underlying crime, see, e.g., United States v. Garcia, 400 F.3d 816, 819 (9th Cir. 2005), the Washington definition requires only that the aider and abettor have knowledge his actions will promote or facilitate the commission of the crime, see Wash. Rev. Code § 9A.08.020(3)(a).  And just as in federal law, acting with mere knowledge falls short of acting with intent.  Compare Wash. Rev. Code § 9A.08.010(1)(a) (“A person acts with intent or intentionally when he or she acts with the objective or purpose to accomplish a result which constitutes a crime.”) with Wash. Rev. Code § 9A.08.010(1)(b) (“A person knows or acts knowingly or with knowledge when . . . (i) he is aware of a fact, facts, or circumstances or result . . . or (ii) he or she has information which would lead a reasonable person in the same situation to believe . . . .”).

This wouldn’t necessarily get us totally out of the woods because the government and the court could turn to the modified categorical approach to determine whether the defendant was convicted as an aider and abettor or as a principal.  But that suggestion should bring to your mind a fourth basic principle – which actually only became “basic” in the last few years with the Supreme Court’s decisions in Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States, 136 S. Ct. 2243 (2016) – that the modified categorical approach can be used only if the statute allowing conviction on alternative theories is “divisible,” meaning the law requires the jury to unanimously agree on one of the alternatives.  And Washington does not require such unanimity.  Rather, “it is not necessary that jurors be unanimous as to the manner of an accomplice’s and a principal’s participation as long as all agree that they did participate in the crime.”  State v. Hoffman, 804 P.2d 577, 605 (Wash. 1991).

I’d like to say I thought all this analysis up totally on my own, but I’m afraid I didn’t.  All of the specific analysis of Washington law that I lay out above comes straight out of a Ninth Circuit opinion issued just three weeks ago, United States v. Valdivia-Flores, No. 15-50384, 2017 WL 6044232 (9th Cir. Dec. 7, 2017) – and the briefing in that case, by former San Diego Assistant Federal Defender Tripp Johnston.  Valdivia-Flores recognized the same basic principles and then went through the Washington statutes and case law cited above to reach the conclusion that a Washington state conviction for possession of a controlled substance with intent to distribute could not qualify as a “drug trafficking offense” under the immigration law definition of “aggravated felony.”  See id. at *5, *7.  Better yet, the court quotes the government’s complaint – with apparent recognition that it’s true – that the court’s holding means “no Washington state conviction can serve as an aggravated felony at all because of [the] accomplice liability statute.”  Id. at *6.

Valdivia-Flores was about the definition of “drug trafficking offense” in the definition of “aggravated felony,” but the same conclusion follows inexorably for “crimes of violence” and “controlled substance offenses” under the guidelines – and probably the Armed Career Criminal Act.  The only additional step required under the guidelines is a requirement that the aiding and abetting, conspiracy, and attempt options are subject to the same “generic definition” requirement as substantive offenses, and that’s well established by the case law discussed above.  With that additional step, we get the same result under the guidelines as we do for “aggravated felony” under immigration law.

There are at least a few other states whose convictions are subject to the same argument, moreover.  The appellant’s opening brief in Valdivia-Flores – which is attached here – listed five other states – Indiana, Iowa, Massachusetts, Nebraska, and Oklahoma – with similarly broad aiding and abetting statutes or case law.  So convictions from those states should be excluded just like Washington convictions.

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