58 F.4th 764
3rd Cir.2023Background
- In July 2020 Jamar Lewis pleaded guilty to unlawful possession of a firearm (18 U.S.C. § 922(g)); the U.S. Sentencing Guidelines base level for that offense is 14 but increases to 20 if the defendant has a prior "controlled substance offense" under U.S.S.G. § 2K2.1(a)(4)(A).
- Lewis had a 2012 New Jersey conviction for possession with intent to distribute marijuana under N.J. Stat. Ann. § 2C:35-5; at the time New Jersey law criminalized hemp that the federal Controlled Substances Act later exempted in 2018.
- The Probation Office applied the § 2K2.1(a)(4)(A) enhancement based on the 2012 state conviction; Lewis challenged it, arguing (1) a "controlled substance" for the Guidelines means only substances listed in the federal CSA and (2) the relevant drug schedule should be evaluated at the time of federal sentencing (by which time New Jersey had deregulated hemp).
- The District Court sided with Lewis and declined to apply the enhancement; the Government appealed.
- The Third Circuit reviewed de novo and addressed two primary legal questions: (a) whether "controlled substance" under U.S.S.G. § 4B1.2(b) is limited to federally regulated (CSA) drugs or includes state-regulated drugs, and (b) whether the applicable regulation must exist at the time of the predicate conviction or at the time of federal sentencing.
- The Third Circuit held that (a) a "controlled substance" under § 4B1.2(b) includes drugs regulated by state or federal law, and (b) the relevant time is the date of the predicate state conviction; it vacated and remanded for resentencing with the enhancement applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "controlled substance" in U.S.S.G. § 4B1.2(b) is limited to substances listed in the federal CSA | Lewis: must be CSA-listed (federal-law-only) | Government: state-regulated substances count too | Court: includes drugs regulated by state or federal law |
| Temporal point for determining whether substance was "controlled" (time of predicate conviction vs time of federal sentencing) | Lewis: apply schedules at time of federal sentencing (NJ had deregulated hemp by then) | Government: apply law as of predicate conviction | Court: use time of the predicate state conviction |
| Application to Lewis's 2012 NJ marijuana conviction | Lewis: conviction does not qualify because federal law later excluded hemp | Government: conviction qualifies because NJ law criminalized hemp at time of conviction | Court: conviction qualifies; enhancement should have been applied; remand for resentencing |
Key Cases Cited
- Shular v. United States, 140 S. Ct. 779 (2020) (when a guideline defines a predicate by reference to prohibited conduct, apply a categorical-style inquiry based on that criterion rather than a generic federal offense)
- McNeill v. United States, 563 U.S. 816 (2011) (for recidivist enhancements courts look to the law in effect at the time of the prior conviction)
- Mathis v. United States, 579 U.S. 500 (2016) (categorical approach requires comparing statutory elements)
- Taylor v. United States, 495 U.S. 575 (1990) (foundational categorical-approach precedent)
- Portanova v. United States, 961 F.3d 252 (3d Cir. 2020) (permitting a looser categorical comparison where guideline language requires it)
- Ward v. United States, 972 F.3d 364 (4th Cir. 2020) (holding state-regulated substances may qualify under similar guideline language)
- Bautista v. United States, 989 F.3d 698 (9th Cir. 2021) (adopting a federal-only view of "controlled substance" under similar guideline contexts)