United States Court of Appeals For the First Circuit
No. 19-2030
UNITED STATES OF AMERICA,
Appellee,
v.
MOHAMED ABDULAZIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Kayatta and Barron, Circuit Judges, and Smith,* District Judge.
Michael Tumposky, with whom Hedges & Tumposky, LLP, was on brief, for appellant. Christine J. Wichers, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.
June 2, 2021
* Of the District of Rhode Island, sitting by designation. BARRON, Circuit Judge. Mohamed Abdulaziz ("Abdulaziz")
challenges his five-year prison sentence for committing a federal
firearms offense in violation of 18 U.S.C. § 922(g). He contends
that the District Court erred in applying the enhancement set forth
in § 2K2.1(a)(2) of the United States Sentencing Guidelines to him
at his sentencing. That guideline subjects a defendant who has
been convicted of a § 922(g) offense to a higher base offense level
("BOL") under the Guidelines if he committed that offense
"subsequent to sustaining at least two felony convictions of either
a crime of violence or a controlled substance offense." U.S.S.G.
§ 2K2.1(a)(2). The question that we must decide turns on a purely
legal question: what constitutes a "controlled substance" within
the meaning of this guideline? Because we conclude that the
District Court erred in resolving it, we vacate the judgment
imposing the sentence and remand the case for further proceedings.
I.
On January 3, 2019, a federal grand jury in the District
of Massachusetts indicted Abdulaziz on one count of possession of
a firearm and ammunition by a prohibited person in violation of 18
U.S.C. § 922(g)(1). The charged conduct was alleged to have
occurred on September 2, 2018. Abdulaziz pleaded guilty to the
offense on June 13, 2019.
The United States Probation Office prepared a
presentence investigation report ("PSR"). Among other things, the
- 2 - PSR calculated Abdulaziz's Guidelines Sentencing Range ("GSR") for
his § 922(g) offense. The PSR based the calculation in part on
the application of the § 2K2.1(a)(2) enhancement.
The PSR determined that the enhancement applied based on
three state law felony convictions that Abdulaziz had sustained
before he committed the § 922(g) offense. The PSR determined that,
under the guideline, two of those convictions were of "crime[s] of
violence" and one was of "a controlled substance offense."
U.S.S.G. § 2K2.1(a)(2).
At the sentencing hearing on September 26, 2019,
Abdulaziz did not dispute the PSR's determination that his January
2010 Massachusetts conviction of assault with a dangerous weapon
(firearm) in violation of Mass. Gen. Laws ch. 265, § 15B(b) --
which he sustained prior to committing the § 922(g) offense --
qualified under § 2K2.1(a)(2) as a "felony conviction[]" of "a
crime of violence." The District Court noted at the hearing,
however, that the government was "not arguing" that the other
conviction that Abdulaziz sustained prior to committing the
§ 922(g) offense and that the PSR had determined qualified as a
"felony conviction[]" of "a crime of violence" -- his April 2018
Massachusetts conviction for unarmed assault with intent to rob in
violation of Mass. Gen. Laws ch. 265, § 20 -- also qualified as
such a "felony conviction[]" of "a crime of violence."
- 3 - Thus, the application of the enhancement turned on
whether the third state law felony conviction that Abdulaziz
sustained prior to committing the § 922(g) offense and that the
PSR had determined was of a qualifying offense -- namely, his July
2014 Massachusetts conviction for possession with intent to
distribute "Marihuana," which the underlying state statute defined
to be a "controlled substance," Mass. Gen. Laws ch. 94C, §§ 31,
Class D(b)(1), 32C(a) (effective July 1, 2014) -- qualified as a
"felony conviction[]" of "a controlled substance offense" under
§ 2K2.1(a)(2). For, if it did, then Abdulaziz would have committed
the § 922(g) offense "subsequent to sustaining at least two felony
convictions of either a crime of violence or a controlled substance
offense." U.S.S.G. § 2K2.1(a)(2).
The District Court sided with the government and against
Abdulaziz by ruling that this July 2014 Massachusetts conviction
did so qualify. The District Court accordingly applied the
enhancement and determined Abdulaziz's BOL to be 24, rather than
either 22 or 20 as it would have been if the enhancement did not
apply. See U.S.S.G. § 2K2.1(a)(3)-(4) (providing for a BOL level
of either 22 or 20 when the defendant has only one qualifying prior
conviction, depending on the nature of the firearm involved in the
§ 922(g) offense).
The District Court next adjusted Abdulaziz's total
offense level downward due to his timely acceptance of
- 4 - responsibility. See U.S.S.G. § 3E1.1(a), (b). After accounting
for Abdulaziz's criminal history category, which it determined to
be VI, the District Court calculated his GSR to be 77 to 96 months
of imprisonment. The District Court at that point determined that
Abdulaziz was eligible for a departure pursuant to § 4A1.3(b) of
the Guidelines.1 The departure resulted in a recalculated GSR of
57 to 71 months of imprisonment. The District Court ultimately
sentenced Abdulaziz to a sixty-month prison term to be followed by
three years of supervised release.
Judgment was entered on September 26, 2019. Abdulaziz
timely appealed on October 7, 2019.
II.
Abdulaziz contends that his sentence cannot stand
because his July 2014 Massachusetts conviction for possession with
intent to distribute "Marihuana," Mass. Gen. Laws ch. 94C, §§ 31,
Class D(b)(1), 32C(a) (effective July 1, 2014), does not qualify
as a conviction of "a controlled substance offense" under
§ 2K2.1(a)(2).
Setting aside for the moment the question of what
criteria the guideline uses to determine what constitutes what it
1The District Court reasoned that, in light of the age of some of Abdulaziz's prior convictions and the lack of recent serious offenses, "he's more properly classified in criminal history category IV" and thus it "depart[ed] from criminal history category VI to criminal history category IV."
- 5 - terms "a controlled substance offense," we note that there is no
disagreement between the parties that this guideline requires that
we apply the categorical approach to determine whether Abdulaziz's
July 2014 Massachusetts conviction was of "a controlled substance
offense" within the meaning of § 2K2.1(a)(2). In consequence, we
"look only to the elements" of the Massachusetts law offense
underlying that conviction and "not to 'how [Abdulaziz] actually
perpetrated the crime to decide if the offense, as defined in the
statute, matches [the guideline's] criteria' for a 'controlled
substance offense.'" United States v. Capelton, 966 F.3d 1, 6
(1st Cir. 2020) (quoting United States v. García-Cartagena, 953
F.3d 14, 18 (1st Cir. 2020)).
We also note that there is no disagreement between the
parties that, at the time of Abdulaziz's July 2014 conviction for
that "Marihuana"-related offense, Massachusetts defined
"Marihuana" to include hemp. See Mass. Gen. Laws ch. 94C, § 1
(effective July 1, 2014) (defining "Marihuana" as "all parts of
the plant Cannabis sativa L., whether growing or not," except for
"the mature stalks of the plant, fiber produced from the stalks,
oil, or cake made from the seeds of the plant"). Accordingly, the
parties agree that Abdulaziz's July 2014 conviction must be
understood to be a conviction for possession with the intent to
distribute hemp even though the record does not establish whether
Abdulaziz actually perpetrated that crime by possessing that
- 6 - substance. See Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013)
(explaining that under the categorical approach a court is to look
to "the least of the acts" criminalized by the statute of
conviction (alteration omitted) (quoting Johnson v. United States,
559 U.S. 133, 137 (2010)).
With this foundation in place, we have but one question
to decide to resolve this appeal: is a conviction of such a hemp-
based offense a conviction of "a controlled substance offense"
within the meaning of § 2K2.1(a)(2)? As that question necessarily
turns on the proper interpretation of the Guidelines, our review
is de novo. See Capelton, 996 F.3d at 5.
A.
"[W]e ordinarily employ the Guidelines in effect at
sentencing," rather than the Guidelines in effect either at the
time of the defendant's conviction of the offense for which he is
being sentenced or at any earlier time. United States v.
Rodriguez, 630 F.3d 39, 42 (1st Cir. 2010) (alteration omitted)
(quoting United States v. Maldonado, 242 F.3d 1, 5 (1st Cir.
2001)); see 18 U.S.C. § 3553(a)(4)(A)(ii). We follow that course
here, and, indeed, no party asks us to do otherwise. We thus must
decide what the term "controlled substance offense" in the
§ 2K2.1(a)(2) guideline meant as of the time of Abdulaziz's
§ 922(g) sentencing.
- 7 - The text of § 2K2.1(a)(2) at that time did not purport
to define the term "controlled substance offense," just as it does
not purport to do so now. See U.S.S.G. §§ 2K2.1(a)(2). But, it
did refer at that time -- as now -- to another guideline,
§ 4B1.2(b), that did define that term. See id. §§ 2K2.1(a)(2) &
cmt. n.1, 4B1.2(b). And, that guideline defined "controlled
substance offense" at that time -- as now -- as an "offense" that,
among other things, "prohibits the . . . possession of [with
intent to distribute] a controlled substance." U.S.S.G.
§ 4B1.2(b) (emphasis added). Moreover, the government agrees with
Abdulaziz (given the arguments that it has timely made to us) that
a "controlled substance" in § 4B1.2(b) was defined as of that time
by reference to whether a substance was either included in or
excluded from the drug schedules set forth in the federal
Controlled Substances Act ("CSA").2 See 21 U.S.C. § 812; 21 C.F.R.
§§ 1308.11-1308.15. Thus, insofar as the CSA's drug schedules
were incorporated into the guideline itself at the time of
The government filed a response to a Rule 28(j) letter after 2
briefing was complete in this case in which it took the position for the first time that "the term 'controlled substance' in USSG § 4B1.2 [does not] refer[] exclusively to the federal controlled substance[s]" listed in the CSA's drug schedules. We decline to address such a late-breaking contention about the criteria that the Guidelines use to define what constitutes a "controlled substance." See Rosa-Rivera v. Dorado Health, Inc., 787 F.3d 614, 617 (1st Cir. 2015) ("Not only is it improper to advance new arguments in a 28(j) letter, but it is far too late in the game." (citation omitted)).
- 8 - Abdulaziz's § 922(g) sentencing, it would appear that the answer
to our question is fairly straightforward: we must look to the
version of those drug schedules that were "in effect" at that time,
Rodriguez, 630 F.3d at 42, to determine what constituted a
"controlled substance," U.S.S.G. § 4B1.2(b), at that time.
To be sure, the CSA's drug schedules do, by design,
change over time. See 21 U.S.C. §§ 811(a), 812(a) ("There are
established five schedules of controlled substances . . . [which]
shall initially consist of the substances listed in this section,"
but "the Attorney General may by rule" "add" "or" "remove any drug
or other substance from the schedules [provided that certain
findings are made]." (emphasis added)). And that does mean that,
insofar as § 4B1.2(b) incorporated the CSA's drug schedules as of
the time of Abdulaziz's § 922(g) sentencing, what constituted a
"controlled substance" in that guideline as of that time might
differ from what constituted a "controlled substance" as of the
time of one of his prior "felony convictions." U.S.S.G.
§§ 2K2.1(a)(2), 4B1.2(b).
But, of course, the Guidelines themselves are not fixed
in stone, and yet we ordinarily must apply the version of them
that is in effect at the time of the defendant's sentencing for
his conviction of the offense that occasioned it. See Rodriguez,
630 F.3d at 42; 18 U.S.C. § 3553(a)(4)(A)(ii). Thus, the fact
that the CSA drug schedules vary over time does not itself suggest
- 9 - a reason for us to look to a version of those schedules that is
different from the one that was in effect at the time of the
§ 922(g) sentencing to determine what constituted a "controlled
substance" -- and thus what constituted a "controlled substance
offense" -- under § 2K2.1(a)(2) as of the time of that sentencing.
Nonetheless, the government contends that the text of
§ 2K2.1(a)(2) must be read to require that we look to the version
of the CSA's drug schedules that was in place at some time prior
to the time of the § 922(g) sentencing to discern what that
guideline deemed to be a "controlled substance" as of the time of
that sentencing. Specifically, the government contends that the
words "felony conviction[]" and "subsequent to sustaining" in
§ 2K2.1(a)(2) combine to require that the meaning of "controlled
substance," even as of the time of the § 922(g) sentencing, must
be drawn from the version of the CSA's drug schedules that was in
place at the time of either (1) Abdulaziz's commission of the
§ 922(g) offense in September of 2018, or (2) Abdulaziz's
sustaining of the hemp-related Massachusetts conviction in July of
2014, and thus not from the version of those schedules that was in
effect when he was later sentenced for his § 922(g) conviction.
From that premise, the government then goes on to contend
that Abdulaziz's July 2014 Massachusetts conviction necessarily
was of "a controlled substance offense" within the meaning of
§ 2K2.1(a)(2) as of the time of his § 922(g) sentencing, even
- 10 - though the CSA's drug schedules did not include hemp at the time
of that sentencing. See Agriculture Improvement Act of 2018, Pub.
L. No. 115-334, § 12619, 132 Stat. 4490, 5018 (effective Dec. 20,
2018) (codified as amended at 21 U.S.C. § 802(16)(B)) (providing
that "[t]he term 'marihuana' does not include" "hemp"). And that
is because, the government correctly points out, the CSA's drug
schedules in effect at each of those earlier times (July 2014 and
September 2018) did include hemp. See 21 U.S.C. § 812, Sched.
I(c)(10) (2012, effective through Dec. 19, 2018); id. § 802(16)
(2009, effective through Dec. 17, 2014); id. (2016, effective
through Oct. 23, 2018). For the reasons that we will next explain,
however, we do not agree with the government's construction of
§ 2K2.1(a)(2), under which CSA drug schedules not in effect at the
time of a defendant's § 922(g) sentencing would determine the
meaning of "a controlled substance offense" in that guideline as
of the time of that sentencing.
B.
We begin with the guideline's text and the specific words
in it that the government contends support the construction that
it advances. We note, however, that those words do not expressly
require such a backward-looking, time-of-prior-conviction or time-
of-commission-of-§ 922(g)-offense approach to discerning the
meaning of the term "controlled substance offense" in
§ 2K2.1(a)(2). The guideline does not refer, for example, to "what
- 11 - at the time of the § 922(g) offense was considered a controlled
substance offense" or, alternatively, to "what at the time of the
prior conviction was considered a controlled substance offense."
Nor must the words that the government places such weight
on be understood to make such a specification for them to be doing
any work at all. Whether or not we construe "a controlled
substance offense" to be defined by reference to the version of
§ 4B1.2(b) in effect at the time of the § 922(g) sentencing, the
earlier clause in § 2K2.1(a)(2) would still usefully establish
that under that guideline the "felony convictions" must have been
"sustain[ed]" before the § 922(g) offense was "committed."
U.S.S.G. § 2K2.1(a)(2); cf. United States ex rel. Banigan v.
PharMerica, Inc., 950 F.3d 134, 143 n.11 (1st Cir. 2020)
(explaining that "courts, whenever possible, [attempt] to
give meaning to every word and phrase contained in the text of a
statute" (quoting United States ex rel. Ondis v. City of
Woonsocket, 587 F.3d 49, 58 (1st Cir. 2009))).
To be sure, the word "conviction[]" in § 2K2.1(a)(a)
does require us to look back to the time of a conviction -- rather
than to the time of the § 922(g) sentencing itself -- to discern
the elements of, and the penalties attached to, the offense that
underlies it, so that we may then determine whether the
"conviction[]" is a "felony conviction[]" of "a controlled
substance offense" as of the time of that sentencing. U.S.S.G.
- 12 - § 2K2.1(a)(2). That much is clear from McNeill v. United States,
563 U.S. 816 (2011), on which the government heavily relies.
But, the word "conviction[]" in the guideline is not the
word that matters here, given that we are trying to identify this
guideline's criteria for what constitutes "a controlled substance
offense." Nor does McNeill suggest otherwise.
In McNeill, the Supreme Court considered a provision in
the Armed Career Criminal Act ("ACCA") that imposed a sentencing
enhancement for a § 922(g) offender who had three or more "previous
convictions" of "a serious drug offense." 18 U.S.C. § 924(e)(1);
see McNeill, 563 U.S. at 818-19. The Court held that the "plain
text" of the words "previous conviction" compelled the conclusion
that the elements of and penalties attached to the offense
underlying a "previous conviction" were locked in as of the time
of that "conviction." McNeill, 563 U.S. at 820. Thus, the Court
held, ACCA's plain text required the sentencing judge to decide
whether a "previous conviction" of an offense with those time-of-
conviction characteristics qualified as a "previous conviction" of
"a serious drug offense" in determining whether the enhancement
set forth in ACCA applied. Id. at 820-22.
It is clear, as the Sixth Circuit recently observed,
that "McNeill expresses the principle that the elements of the
state offense of conviction are locked in at the time of that
conviction." United States v. Williams, No. 19-6410, 2021 WL
- 13 - 1149711, at *6 (6th Cir. Mar. 25, 2021) (unpublished); see also
Boulanger v. United States, 978 F.3d 24, 30 n.6 (1st Cir. 2020)
("Congress intended courts to use the 'historical statute of
conviction' when analyzing ACCA cases, not a modern, amended
version" (quoting McNeill, 563 U.S. at 822)). That is why,
consistent with the categorical approach, we look to the elements
of the Massachusetts law "Marihuana" offense of which Abdulaziz
was convicted in July 2014, Mass. Gen. Laws ch. 94C, §§ 31, Class
D(b)(1), 32C(a) (effective July 1, 2014), as Massachusetts law
described those elements at the time of that conviction to
determine the characteristics of the offense underlying it.
But, in making that much clear, McNeill did not also
hold that ACCA's own criteria for deeming a "previous conviction[]"
with those locked-in characteristics to be "a serious drug
offense," 18 U.S.C. § 924(e)(2)(A) (emphasis added), were
themselves also locked in as of the time of the "previous
conviction[]." In fact, McNeill simply had no occasion to address
that question, because there had been no relevant change in that
case to those criteria -- which included in part a requirement
that such a conviction carry "a maximum term of imprisonment of
ten years or more," id. -- between the time of the McNeill
defendant's "previous conviction[]" and the time of his § 922(g)
sentencing, such as through an amendment during that period to
ACCA itself, see McNeill, 563 U.S. at 817-19; Career Criminals
- 14 - Amendment Act of 1986, Pub. L. No. 99-570, § 1402, 100 Stat. 3207,
3207-39 to -40 (codified as amended at 18 U.S.C. § 924(e)(2)).3
In this appeal, of course, the only question that is in
dispute is the one that is analogous to the question that the Court
in McNeill did not have any occasion to answer -- namely, are
§ 2K2.1(a)(2)'s criteria for deeming a "felony conviction[]" to be
of "a controlled substance offense" locked in at the time of that
"conviction[]"? That question is analogous to the question of
what ACCA's criteria were for determining what constituted "a
serious drug offense." And thus, as the Ninth Circuit recognized
when faced with the same question concerning the criteria that
this guideline uses to determine whether a prior conviction is a
qualifying "controlled substance offense" that we now confront, it
is a question that "bears little resemblance to the [question
3 Another of ACCA's criteria for deeming a prior state conviction to be of "a serious drug offense" included that such a conviction must "involv[e] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))." 18 U.S.C. § 924(e)(2)(A)(ii). But, there had been no relevant intervening change to the meaning of "controlled substance" in this provision, as the defendant in McNeill had six prior North Carolina convictions for either selling cocaine or possessing with intent to sell cocaine, see McNeill, 563 U.S. at 818-19, and the defendant did not contend (nor did he have any basis for contending) that at any relevant time "cocaine" was not a "controlled substance" under the CSA's drug schedules and thus under § 924(e)(2)(A)(ii). The McNeill Court thus had no occasion to address whether the ACCA enhancement could validly be applied to him if "cocaine" were no longer a "controlled substance" within the meaning of § 924(e)(2)(A)(ii) at the time of sentencing.
- 15 - posed] in McNeill." United States v. Bautista, 989 F.3d 698, 703
(9th Cir. 2021); see also Williams, 2021 WL 1149711, at *6
(similar).4
4In a 28(j) letter filed on May 26, 2021 acknowledging Williams, the government points to the concurrence in that case, which concludes that "McNeill's approach controls here" and that "the overwhelming trend of appellate decisions all point to applying sentencing enhancements using a time-of-conviction rule." Williams, 2021 WL 1149711, at *9-10 (Cook, J., concurring) (collecting cases). But, the decisions that the concurrence cites reflect only McNeill's principle that the elements of and penalties attached to a "conviction" are locked in as of the time of that "conviction" and thus, like McNeill, have little to do with the question posed here. See United States v. Doran, 978 F.3d 1337, 1340 (8th Cir. 2020) (holding that it is "a 'backward looking' question . . . whether a prior conviction was punishable as a felony at the time of the conviction" (cleaned up) (quotation omitted)); United States v. Bermudez-Zamora, 788 F. App'x 523, 524 (9th Cir. 2019) (holding that state's post-conviction "reclassification" of prior conviction from felony to misdemeanor did not change the "historical fact" that, for purposes of applying a Guidelines enhancement, it was "a conviction for a felony offense . . . for which the sentence imposed was five years or more," U.S.S.G. § 2L1.2(b)(3)(A) (quotations omitted)); United States v. Sanders, 909 F.3d 895, 904 (7th Cir. 2018) (holding that "for purposes of applying [a statutory] recidivist enhancement [predicated on whether a prior conviction was a 'felony'], it is immaterial whether a defendant's state felony conviction was reclassified as a misdemeanor after she" sustained it); United States v. Turlington, 696 F.3d 425, 427-28 (3d Cir. 2012) (holding that a court must look to the penalties attached to "the underlying offense as [they previously] existed" when applying statutory provision that asks whether "the maximum term of imprisonment authorized" for that offense was "life imprisonment," 18 U.S.C. § 3559(e)); United States v. Mazza, 503 F. App'x 9, 11 (2d Cir. 2012) (rejecting contention that a state's "decriminaliz[ation]" of conduct underlying prior conviction which occurred "after [the defendant's] conviction ha[d] become final" affected his Guidelines criminal history category, given that "criminal history categories are based on the maximum term imposed in previous sentences" (quotation omitted)); United States v. Moss, 445 F. App'x 632, 635 (4th Cir. 2011) ("we find no merit in Moss's
- 16 - In addition to this distinction between the question
that we must answer in this case and the question that the Court
confronted in McNeill, there is another reason why the government's
reliance on McNeill here is misplaced. The explanation that
McNeill gave for concluding that the words "previous conviction[]"
in ACCA plainly required a backward-looking inquiry into the
elements of and penalties attached to the prior offense at the
time of its commission, see 563 U.S. at 820-23, simply does not
bear on the answer to the interpretive question that we confront
here concerning the meaning of "a controlled substance offense" in
Consider that, in reading "previous conviction[]" to
require such a backward-looking inquiry, McNeill emphasized how
strange it would be to treat a defendant as having been convicted
of an offense the elements of and penalties for which would become
known to him only upon his sentencing for his conviction of an
entirely different offense that he had subsequently committed.
See id. at 821 ("Although North Carolina courts actually sentenced
contention that his 1992 breaking and entering conviction was not a 'serious violent felony' because that crime is now punishable by a maximum term of less than ten years," given that "the maximum term of incarceration at the time of Moss's conviction was ten years"); Mallett v. United States, 334 F.3d 491, 504 (6th Cir. 2003) (deeming "implausible" an interpretation of the Guidelines which would require determining "the maximum term of imprisonment" for a "state-court conviction" "as of any time other than the date on which the defendant's guilt is established").
- 17 - [McNeill] to 10 years in prison for his drug offenses, McNeill now
contends that the 'maximum term of imprisonment' for those offenses
is 30 or 38 months. We find it 'hard to accept the proposition
that a defendant may lawfully have been sentenced to a term of
imprisonment that exceeds the maximum term of imprisonment
prescribed by law.'" (cleaned up) (quoting United States v.
Rodriquez, 553 U.S. 377, 383 (2008))). But, there is nothing
similarly strange about looking to federal law as it exists at the
time of a defendant's federal sentencing to determine the criteria
that a potentially applicable federal sentencing enhancement uses
to determine whether the enhancement must be applied at that
sentencing. Indeed, ordinarily, that is precisely where we would
look to identify those criteria. See Bautista, 989 F.3d at 703
("McNeill nowhere implies that the court must ignore current
federal law and turn to a superseded version of the United States
Code" to expound "federal sentencing law [as it] exists at the
time of sentencing.").
True, a § 922(g) defendant's past criminal conduct
involving a substance that the CSA's drug schedules classified at
that earlier time as "controlled" could suggest a reason to be
concerned that the defendant is especially defiant of law and thus
a reason to find the earlier classification of the substance by
those schedules potentially relevant to the sentence that the
defendant should receive for his § 922(g) conviction. But, that
- 18 - observation does not itself support the conclusion that the
§ 2K2.1(a)(2) guideline must be read to require us to look to
federal drug schedules not in effect at the time of the § 922(g)
sentencing to discern the meaning of what constitutes a "controlled
substance" and thus "a controlled substance offense" under that
guideline as of the time of that sentencing.
A guideline's enhancement for a defendant's past
criminal conduct -- such as the enhancement that § 2K2.1(a)(2)
imposes -- is reasonably understood to be based in no small part
on a judgment about how problematic that past conduct is when
viewed as of the time of the sentencing itself. Cf. Taylor v.
United States, 495 U.S. 575, 581-85 (1990) (noting that the
drafters of ACCA's enhancement intended it to capture prior crimes
which "are inherently dangerous" and constitute "the most damaging
crimes to society" (quotations omitted)). There is thus reason to
be wary of a construction of § 2K2.1(a)(2) that would require a
judge at sentencing to apply an enhancement in consequence of the
defendant's past conduct that itself applies only insofar as that
past conduct involves a substance that is "controlled" without
regard to whether the conduct in fact involved a substance that,
so far as the CSA's drug schedules in effect at the time of that
sentencing indicate, is "controlled." Cf. H.R. Rep. 115-1072, at
695 (2018) (Conf. Rep.) (describing "hemp" as an "agricultural
crop[] having strategic and industrial importance"); cf. also 164
- 19 - Cong. Rec. 4,459-60 (2018) (remarks of Sen. McConnell) ("Hemp is
in everything from health products to home insulation" and "is a
completely different plant from its illicit cousin. . . . Hemp
will be a bright spot for our future."); 164 Cong. Rec. 4,494
(2018) (remarks of Sen. Bennett) ("We forget, but hemp was widely
grown in the United States throughout the mid-1800s. Americans
used hemp in fabrics, wine, and paper. Our government treated
industrial hemp like any other farm commodity until the early 20th
century, when a 1937 law defined it as a narcotic drug,
dramatically limiting its growth. This became even worse in 1970
when hemp became a schedule I controlled substance. . . . [W]e
see hemp as a great opportunity to diversify our farms and
manufacture high-margin products for the American people.").
The reason to be wary of embracing a construction of the
guideline that would have such a consequence is especially strong
when one remembers that the enhancement the guideline sets forth
is not the sole means by which a prior conviction for that conduct
could impact the calculation of the defendant's GSR. For example,
that conviction could bear on the defendant's criminal history
score even if it does not qualify as one of an offense that is
deemed to be a qualifying one under the enhancement set forth in
§ 2K2.1(a)(2). See U.S.S.G. § 4A1.1(a)-(c); ch. 5, pt. A
(sentencing table). And, of course, the Guidelines themselves
are not binding on the sentencing judge, who has broad discretion
- 20 - to take account of relevant considerations in setting the
defendant's ultimate sentence. See Rita v. United States, 551
U.S. 338, 347-51 (2007); United States v. Benoit, 975 F.3d 20, 24
(1st Cir. 2020).
The government does also contend that it would be
"illogical and unfair" to subject a defendant to the enhancement
that § 2K2.1(a)(2) sets forth simply because of the happenstance
of the timing of his § 922(g) sentencing. It notes in this regard
that under a time-of-§ 922(g)-sentencing construction of this
guideline, two defendants who had been convicted of the same
offense and had the same criminal history could be treated
differently just because of that quirk of timing.5
But, this kind of differential treatment between
otherwise similarly situated defendants often arises when courts
apply -- as they ordinarily must -- the Guidelines that are
operative at the time of sentencing. See 18 U.S.C.
§ 3553(a)(4)(A)(ii) (directing courts to apply the Guidelines that
"are in effect on the date the defendant is sentenced"); see, e.g.,
Williams, 2021 WL 1149711, at *6 n.4 ("[T]wo similarly situated
We note that keying the definition of "controlled substance" 5
to the federal drug schedules in effect at the time of the commission of the § 922(g) offense would create its own potential "disparity," as the timing of the commission of that offense might then be determinative of whether a defendant's prior felony conviction results in the enhancement, even though the underlying prior conviction would be the same irrespective of when the § 922(g) offense was committed.
- 21 - defendants c[an] receive different federal sentences depending on
if they are sentenced the day before or after the Sentencing
Commission changes a Guidelines provision." (citing United States
v. Horn, 612 F.3d 524, 526-27 (6th Cir. 2010))). Indeed, the
government conceded at oral argument that, if § 4B1.2(b) expressly
provided that a "controlled substance" meant only "heroin or
cocaine" at the time of a defendant's § 922(g) sentencing, that
defendant's prior state law conviction for possession of
"marihuana" could not be deemed "a controlled substance offense"
under § 2K2.1(a)(2) just because a no-longer-operative version of
§ 4B1.2(b) in effect at the time of that prior conviction expressly
defined a "controlled substance" more expansively to include
either "heroin, cocaine, or marihuana." Cf. United States v.
Nickles, 249 F. Supp. 3d 1162, 1163-64 (N.D. Cal. 2017) (applying,
in the course of "determin[ing] that defendant's prior conviction
for robbery [from 2009] does not qualify as a crime of violence,"
the "narrow[er] . . . definition of extortion" set forth in an
August 1, 2016 amendment to the Guidelines to the benefit of a
defendant sentenced after that date), aff'd, 735 F. App'x 450 (9th
Cir. 2018). Yet, the very same differential treatment between
defendants that the government suggests is "illogical and unfair"
would occur in that event, and we fail to see a meaningful
difference between that hypothetical guideline and this one.
- 22 - C.
The government's remaining argument relies on precedents
that do not concern the proper construction of sentencing
enhancements at all. Here, the government relies chiefly on
Mellouli v. Lynch, 575 U.S. 798 (2015), in which the Supreme Court
addressed the proper construction of a federal immigration measure
which authorizes the removal of "[a]ny alien . . . convicted of a
violation of . . . any law or regulation of a State, the United
States, or a foreign country relating to a controlled substance
(as defined in section 802 of Title 21)." 8 U.S.C.
§ 1227(a)(2)(B)(i) (emphasis added).
The Court in Mellouli looked (in a manner consistent
with McNeill) to the Kansas drug schedules from the time of the
petitioner's previous Kansas conviction to determine what
"controlled substance[s]" the "elements" of that "conviction"
might be said to "relate to." 575 U.S. at 812-13; see id. at 802
("At the time of Mellouli's conviction, Kansas' schedules included
at least nine substances not included in the federal lists"
(emphasis added) (citing, inter alia, Kan. Stat. Ann. §§ 65-
4105(d), 65-4113(d)-(f) (2010 Cum. Supp.)). But, much like in
McNeill, the Court did not consider -- because it had no occasion
to consider -- the issue of what temporal version of the federal
drug schedules was relevant in determining the answer to the
question that is analogous to the one presented here: what
- 23 - constitutes a "controlled substance" under 8 U.S.C.
§ 1227(a)(2)(B)(i). After all, neither party in Mellouli
contended that the federal drug schedules had expanded or
contracted in any material way between the time of Mellouli's 2010
Kansas conviction and his removal proceedings in 2012.
Insofar as Mellouli may be said to touch on that issue,
moreover, it tends, if anything, to undermine the government's
position here. For example, the Court in Mellouli cited to a
footnote in the government's brief to support the conclusion that
some of the substances on the 2010 Kansas schedules were "not
included in the federal lists," 575 U.S. at 802 (citing
Respondent's Brief at 9 n.2), and that footnote in turn relied on
U.S. Drug Enforcement Administration documents from 2013 -- a date
which fell after both the 2010 Kansas conviction was sustained and
after Mellouli's removal proceedings had terminated -- to explain
that certain substances on the 2010 Kansas drug schedules, such as
Salvia Divinorum and Jimson Weed, were "not identifiable as
federally controlled substances," Respondent's Brief at 8-9, 9
n.2, Mellouli v. Lynch, 575 U.S. 798 (2015) (No. 13-1034), 2014 WL
6613094, at *8-9 & 9 n.2. In addition, Mellouli noted that the
actual substance involved in Mellouli's arrest, Adderall, "is a
controlled substance under . . . federal law." 575 U.S. at 803
(emphasis added) (citing 21 C.F.R. § 1308.12(d)(1) (2014)).
- 24 - We do recognize that the Second Circuit later held in
Doe v. Sessions, 886 F.3d 203 (2d Cir. 2018), that this same
federal immigration measure -- § 1227(a)(2)(B)(i) -- must be read
to make "time-of-[prior-]conviction" federal drug schedules
relevant rather than those "in force when removal proceedings are
initiated." Id. at 209. The Second Circuit reasoned that reading
"'works to promote . . . predictability in the administration of
immigration law,'" id. (quoting Mellouli, 575 U.S. at 806),6
because otherwise a previously-convicted "alien could . . . become
removable by the time removal proceedings [are] commenced" if the
CSA schedules after the prior conviction is sustained are "expanded
to encompass the same drugs as [the prior conviction]," id. at
6 In the portion of Mellouli here relied on by the Second Circuit, the Supreme Court explained that the categorical approach was preferable to a conduct-based one because of the "predictability" that it engenders, noting that the categorical approach "enables aliens 'to anticipate the immigration consequences of guilty pleas in criminal court.'" 575 U.S. at 806 (quoting Jennifer Lee Koh, The Whole Better than the Sum: A Case for the Categorical Approach to Determining the Immigration Consequences of Crime, 26 Geo. Immigr. L. J. 257, 307 (2012)); see also Koh, supra, at 307 ("By emphasizing statutory language and fixed evidentiary rules, the categorical approach permits the existence of 'safe harbor' pleas, which do not expose the immigrant to the risk of immigration sanctions."). But, the predictability that Mellouli was concerned with in that discussion was the predictability that flows from the categorical approach itself, see 575 U.S. at 806, and not the predictability that comes from interpreting a statutory definition that refers to the federal controlled substance lists to refer to those lists only as they exist at the time of any given prior conviction. Thus, it is far from clear that Mellouli's discussion of "predictability" militates in favor of the Second Circuit's construction of the federal immigration measure at issue in that case.
- 25 - 210. Doe thus concluded that it made sense to construe the federal
immigration measure in a manner that would provide "the alien with
maximum clarity at the point at which it is most critical for an
alien to assess (with aid from his defense attorney) whether
'pending criminal charges may carry a risk of adverse immigration
consequences.'" Id. (quoting Padilla v. Kentucky, 559 U.S. 356,
369 (2010)).
But, there is no similar concern in this context given
both the gap in time that necessarily exists between the prior
conviction and any consequence under § 2K2.1(a)(2) that is
attributable to it and the highly contingent nature of that
consequence, as it results only if a defendant commits a new crime.
Thus, even if we were to assume that Doe's construction of the
federal measure at issue in that case is reconcilable with
Mellouli, we are not persuaded by the government's contention that
Doe supports its position here.7
7 The remaining lower court immigration decisions cited by the government do not speak -- let alone persuasively -- to the issue of how, temporally, to understand the criteria employed by § 2K2.1(a)(2) to determine whether a prior conviction is "a controlled substance offense." Instead, those decisions either fail to present any timing issue whatsoever, see Collymore v. Lynch, 828 F.3d 139 (2d Cir. 2016), or appear to rest largely on a misinterpretation of Mellouli, see Martinez v. Att'y Gen., 906 F.3d 281, 287 (3d Cir. 2018).
- 26 - D.
In sum, hemp was not on the CSA's drug schedules when
Abdulaziz was sentenced on account of his § 922(g) offense in
September of 2019. See Agriculture Improvement Act § 12619. That
means, given the government's timely arguments to us, that hemp
was not a "controlled substance" within the meaning of the version
of § 4B1.2(b) that was in effect at the time of Abdulaziz's
sentencing and, by extension, § 2K2.1(a)(2) as of that same time.
Accordingly, Abdulaziz's July 2014 Massachusetts conviction was
not a conviction of "a controlled substance offense" within the
meaning of that term as it was used in the version of § 2K2.1(a)(2)
that was applicable at his sentencing.
III.
The sentence is vacated and the case is remanded for
further proceedings consistent with this opinion.8
8 Insofar as we hold that Abdulaziz's July 2014 Massachusetts conviction was not "a controlled substance offense" within the meaning of § 2K2.1(a)(2), the government asks that the District Court be allowed in the first instance to determine whether Abdulaziz's 2018 Massachusetts conviction for unarmed assault with intent to rob separately qualifies as "a crime of violence" under that guideline, such that the application of the enhancement might be justified on that basis. The District Court at Abdulaziz's initial sentencing hearing observed, in line with the government's sentencing memorandum, that the government was "not arguing" that this 2018 conviction was a qualifying "crime of violence." We express no opinion as to whether the question of that prior conviction's qualifying nature can be revisited during Abdulaziz's resentencing in the event the government were to ask the District Court to revisit it.
- 27 -