934 F.3d 963

WATFORD, Circuit Judge, dissenting:
I would affirm. In my view, Oregon's delivery-of-methamphetamine offense is overbroad, even if the term "controlled substance offense" under U.S.S.G. § 4B1.2(b) encompasses solicitation, as the majority concludes. Oregon law permits conviction for delivery of a controlled substance based on a mere offer to sell the drug to someone else. See State v. Pollock , 189 Or.App. 38, 73 P.3d 297, 300 (2003). Because a mere offer to sell does not constitute solicitation of a "controlled substance offense," the Oregon offense criminalizes more conduct than the federal offense does, rendering the Oregon offense overbroad.
The problem with the majority's solicitation analysis, as I see it, is this. Solicitation is enticing or encouraging someone else to commit a crime. See Model Penal Code § 5.02(1) (American Law Institute 1985). Here, for our purposes, the crime that's covered by the federal definition of "controlled substance offense" is distributing or dispensing a controlled substance. To solicit that offense, the defendant must entice or encourage someone else to distribute or dispense drugs to a third party. If the defendant merely offers to sell drugs to someone else, he has not solicited a "controlled substance offense" under the Guidelines. At most, a mere offer to sell amounts to soliciting the other person to commit the crime of simple possession. Simple possession, however, is not covered by the Guidelines' definition of "controlled substance offense"; only possession with the intent to distribute is. U.S.S.G. § 4B1.2(b).
Our decision in Sandoval v. Sessions , 866 F.3d 986 (9th Cir. 2017), on which the majority relies, reflects an incorrect view of what solicitation means. In Sandoval , we equated offering to sell a controlled substance with soliciting delivery of a controlled substance, id. at 990-91, but for the reason just stated they are not the same thing. That analytical error was not necessary to the conclusion we ultimately reached. So I do not view that aspect of Sandoval 's reasoning as binding here, and I would not perpetuate the error we made there.

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