United States v. Abdulaziz, 998 F.3d 519

Background

Abdulaziz pleaded guilty to possession of a firearm by a prohibited person under 18 U.S.C. § 922(g) for conduct in Sept. 2018; sentencing occurred Sept. 2019.
The PSR applied U.S.S.G. § 2K2.1(a)(2) (enhanced base offense level if the § 922(g) offense was committed after at least two prior felony convictions for either crimes of violence or controlled substance offenses).
PSR identified three prior Massachusetts felonies: Jan. 2010 assault with a dangerous weapon (agreed crime of violence), Apr. 2018 unarmed assault with intent to rob (government declined to rely on at sentencing), and July 2014 possession with intent to distribute "Marihuana" (Mass. statute included hemp).
The District Court treated the 2014 Massachusetts hemp-related conviction as a qualifying "controlled substance offense," raised Abdulaziz's base offense level to 24, and sentenced him to 60 months' imprisonment after adjustments.
At the time of sentencing hemp had been removed from the federal Controlled Substances Act schedules by the 2018 Farm Bill; the parties agreed the categorical approach applies and that U.S.S.G. § 4B1.2(b) defines "controlled substance" by reference to the CSA schedules.
The First Circuit reviewed de novo whether, for § 2K2.1(a)(2), a prior hemp-related conviction qualifies as a "controlled substance offense" given the relevant timing of the CSA schedules.

Issues

Issue	Plaintiff's Argument (Abdulaziz)	Defendant's Argument (Government)	Held
Whether the July 2014 Massachusetts hemp-related possession-with-intent conviction is a "controlled substance offense" under U.S.S.G. § 2K2.1(a)(2).	It is not: at the time of the § 922(g) sentencing hemp was not a CSA "controlled substance," and the Guidelines in effect at sentencing control.	It is: the phrase "felony convictions" and "subsequent to sustaining" require looking to the CSA schedules in effect at the time of the prior conviction or the § 922(g) offense (2014 or 2018), when hemp was listed.	Held for Abdulaziz: apply the version of the Guidelines in effect at sentencing; hemp was not a CSA controlled substance then, so the 2014 conviction did not qualify.
Whether U.S. v. McNeill requires treating the federal enhancement's definitional criteria as locked in at the time of the prior conviction.	McNeill does not control this question; it only locks in the elements/penalties of the prior state offense, not the federal guideline's definitional criteria.	McNeill supports a time-of-conviction rule for definitional questions.	Held: McNeill is distinguishable; it concerns the statute of conviction's elements, not whether federal guideline criteria must be read as of the prior-conviction date.
Whether concerns about unfairness or disparate timing effects require a backward-looking rule.	Timing quirks do not justify ignoring the Guidelines in effect at sentencing; sentencing enhancements reflect judgments made as of the sentencing date.	Using the sentencing-date rule can produce disparities between similarly situated defendants depending on timing.	Held: timing disparities are inherent in applying Guidelines as of sentencing; they do not warrant adopting the government's backward-looking construction.

Key Cases Cited

United States v. Capelton, 966 F.3d 1 (1st Cir. 2020) (explains use of categorical approach in guideline analysis)
United States v. García-Cartagena, 953 F.3d 14 (1st Cir. 2020) (categorical approach principles)
Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach: consider the "least of the acts" criminalized)
McNeill v. United States, 563 U.S. 816 (2011) (elements and penalties of a prior conviction are fixed as of the time of that conviction)
Mellouli v. Lynch, 575 U.S. 798 (2015) (immigration context applying categorical approach to state schedules)
United States v. Bautista, 989 F.3d 698 (9th Cir. 2021) (distinguishing McNeill and addressing timing of guideline definitions)
Doe v. Sessions, 886 F.3d 203 (2d Cir. 2018) (immigration decision favoring time-of-conviction schedules)