United States v. Shumate, 329 F.3d 1026, 1030-1031 (9th Cir. 2003) (the omission of solicitation from the offenses listed in the application note as included in USSG 4B1.1 as predicate offenses was not legally significant because, under the Guidelines, the term "includes" is not exhaustive, conviction of solicitation of delivery of marijuana is a controlled substance offense for purposes of a career offender enhancement); United States v. Liranzo, 944 F.2d 73, 78-79 (2d Cir. 1991) (although facilitation is not included on the list in the application note to the career offender provision, and is not sufficiently similar to aiding and abetting, conspiracy, and attempt to be encompassed by the application note, the term "include," the list of offenses in the application note is merely illustrative, it observed that the application note "may not be an exhaustive list" and proceeded to decide "whether ... criminal facilitation should be included in that list" and concluded that criminal facilitation of the sale of cocaine is a controlled substance offense); but see United States v. Dolt, 27 F.3d 235, 239-240 (6th Cir. 1994) (solicitation to traffic in cocaine is not a controlled substance offense under the career offender provision in USSG 4B1.1, because "the fact that the Sentencing Commission did not include solicitation in its list of predicate crimes in [the application note] is evidence that it did not intend to include solicitation as a predicate offense for career offender status.").

jurisdiction: 
Ninth Circuit

 

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