15 F.4th 20
1st Cir.2021Background
- Joseph Crocco was convicted by jury of bank robbery (18 U.S.C. § 2113(a)) and sentenced to 144 months' imprisonment after the district court designated him a career offender under U.S.S.G. § 4B1.1 based on two prior state convictions: 1995 voluntary manslaughter (N.C.) and a 2012 Virginia conviction for possession of marijuana with intent to distribute.
- The career-offender designation raised his offense level from 24 to 32 and his Guidelines range from 77–96 months to 210–240 months; the court varied downward to 144 months.
- On appeal Crocco challenged the use of the Virginia marijuana conviction as a § 4B1.1 “controlled substance offense,” and raised related arguments about hemp legalization and the appropriate definitional source (federal CSA vs. state law).
- Many of Crocco’s arguments were not presented to the district court (or were raised late on appeal), so the court reviewed for waiver and plain error where applicable.
- The First Circuit affirmed: it declined to resolve the broader circuit split over whether to use the federal Controlled Substances Act or state law to define “controlled substance” for § 4B1.1, found no plain error given the unsettled law and circuit conflict, upheld the substantive reasonableness of the below-Guidelines sentence, and declined to reach an ancillary criminal-history-point dispute as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Crocco’s Virginia possession with intent to distribute marijuana conviction qualifies as a § 4B1.1 "controlled substance offense" | United States: prior Virginia conviction counts as a controlled-substance predicate under § 4B1.1 | Crocco: Virginia marijuana conviction is not a categorical match because § 4B1.2(b) requires a "controlled substance" as defined by federal law (or otherwise excludes marijuana/higher-level state distinctions) | Affirmed; court declined to resolve the definitional circuit split and found no plain error given unsettled law |
| Proper source and timing of the definition (federal CSA vs. state law; which version applies) | United States: (implicitly) the predicate qualifies; district court applied career-offender designation | Crocco: federal CSA (and its version at time of federal sentencing) should control; hemp legalization may negate the predicate | Court noted split among circuits, cited Abdulaziz rule (if federal CSA used, use version at federal sentencing), but found arguments waived or not plainly erroneous and did not adopt a rule here |
| Substantive reasonableness of the sentence (youthfulness of prior offense; changing marijuana norms) | United States: sentence is reasonable and within court’s discretion | Crocco: guidelines overstate culpability given he was ~18 at one prior offense and social/legal changes around marijuana merit a lower sentence | Held: sentence substantively reasonable; district court granted a significant below-range variance and did not abuse discretion |
| Whether suspended state sentence (conditioned on good behavior) counts as a "criminal justice sentence" under U.S.S.G. § 4A1.1(d) | United States: (not dispositive) | Crocco: suspended sentence should not count as a criminal-justice sentence | Court declined to decide because career-offender designation made § 4A1.1(d) points irrelevant; issue not reached |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (establishes categorical/modified-categorical framework)
- Taylor v. United States, 495 U.S. 575 (1990) (describes categorical approach to predicate offenses)
- Descamps v. United States, 570 U.S. 254 (2013) (limits use of modified-categorical approach)
- United States v. Mohamed, 920 F.3d 94 (1st Cir. 2019) (First Circuit on categorical analysis practice)
- United States v. Abdulaziz, 998 F.3d 519 (1st Cir. 2021) (use version of federal CSA in effect at instant federal sentencing)
- United States v. Ellison, 866 F.3d 32 (1st Cir. 2017) (analyzing categorical fit for "crime of violence")
- United States v. Bautista, 989 F.3d 698 (9th Cir. 2021) (federal-CSA-based approach to defining "controlled substance" under § 4B1.2)
- United States v. Townsend, 897 F.3d 66 (2d Cir. 2018) (similar federal-CSA approach)
- United States v. Gomez-Alvarez, 781 F.3d 787 (5th Cir. 2015) (federal-CSA approach)
- United States v. Ward, 972 F.3d 364 (4th Cir. 2020) (state-law-based approach to defining "controlled substance")
- United States v. Ruth, 966 F.3d 642 (7th Cir. 2020) (state-law approach; consults dictionary)
- United States v. Padilla, 415 F.3d 211 (1st Cir. 2005) (plain-error standard requiring clear or obvious error)
- United States v. Merritt, 755 F.3d 6 (1st Cir. 2014) (district court’s evaluative judgment over criminal-history assessments)
- United States v. King, 741 F.3d 305 (1st Cir. 2014) (deference to below-range sentences)
- Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017) (warning against letting state definitions dictate categorical federal definitions)
- United States v. Ortíz-Mercado, 919 F.3d 686 (1st Cir. 2019) (waiver/plain-error review principles)