US v. Valdivia-Flores, No. 15-50384 (12-7-17)(O'Scannlain w/Marquez; O'Scannlain concurring; Rawlinson dissenting).

The 9th reversed a 1326 judgment and remanded because the defendant's Washington prior was not an aggravated felony.  Seems pretty cut and dried? Well, it gets interesting.

The 9th first found that the defendant's waiver of rights to seek judicial review was not considered and knowing.  The form was confusing as to what he could challenge, and under what basis.

Once the defendant cleared the procedural hurdle, the 9th looked at his conviction for drug trafficking.  The 9th was shocked to discover that the state aiding and abetting statute was broader than the federal statute.  It required only knowledge, and not specific intent.  The federal statute and most other state statutes, require the defendant to intend to act, not just merely know his acts could help or further.  As such, since all jurisdictions have eliminated the distinction between the principal liability and aiding and abetting, the conviction of the latter is like a conviction for the former.  Thus the conviction could be under both theories.  The statute was not divisible in this regard.  Because it was not divisible, the modified categorical approach cannot be used.

As observed by Davina Chen, a longtime CJA counsel, this may allow us to argue that most convictions in the mere knowledge aiding and abetting states should not be agg felonies.  The states appear to be Indiana, Iowa, Massachusetts, Nebraska, Oklahoma, and Washington.

It does not even matter if the defendant was the only participant, because a jury could have found on separate theories.  Because the statute is overbroad on its face, the defendant here and elsewhere need not show that there is any actual conduct that is broader than the generic statute.

Concurring, O'Scannlain expresses frustration at the overbreadth and the expansion of the categorical approach.

Dissenting, Rawlinson argues that the majority goes looking for trouble.  The statute in question was drug trafficking; the majority should not have considered aiding and abetting.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/07/15-50384.pdf