28 F.4th 487
4th Cir.2022Background
- Hope pled guilty to being a felon in possession of a firearm; the PSR identified three prior South Carolina §44-53-445 convictions (distribution/possession with intent to distribute marijuana near a school, from 2010–2013) and applied the ACCA 15-year mandatory minimum.
- Hope objected at sentencing that the South Carolina convictions did not qualify as ACCA “serious drug offenses”; the district court overruled the objection and imposed the 180‑month mandatory minimum.
- The dispute turned on categorical‑approach issues: divisibility of §44‑53‑445 (whether drug type is an element) and whether South Carolina’s 2013 definition of “marijuana” matches the federal definition after the 2018 Farm Bill (which excluded hemp ≤0.3% THC).
- The Fourth Circuit majority held the South Carolina offenses do not categorically match ACCA’s definition (because SC’s 2013 definition was broader and criminalized hemp) and vacated and remanded for resentencing.
- The panel split: the majority reviewed de novo (finding Hope preserved his objection or that the outcome would be the same under plain‑error), while the dissent would have applied plain‑error review and would have affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review: de novo or plain error for ACCA predicate challenge | Hope: timely objected at sentencing; de novo review | Govt: forfeited below; plain‑error review | Majority: de novo (objection sufficiently specific); notes result would be same even under plain‑error |
| Divisibility of S.C. §44‑53‑445 as to drug type | Hope: indivisible as to drug type (drug identity is a factual means, not an element) | Govt: divisible (state practice treats drug type as an element) | Majority: §445 is divisible as to conduct but indivisible as to drug type (drug type is a means) |
| Categorical match: SC definition of marijuana (2013) v. federal definition at sentencing (post‑2018 Farm Bill) | Hope: no match because SC 2013 included hemp; federal law at sentencing excludes hemp ≤0.3% THC | Govt: prior convictions qualify (urged different temporal rule or match) | Held: No categorical match—SC criminalized a broader set (including hemp) than federal law at time of sentencing, so convictions are not ACCA predicates |
| Relief: whether ACCA enhancement stands | Hope: enhancement improper; vacate and remand for resentencing | Govt: enhancement proper; affirm | Held: VACATED and REMANDED for resentencing (ACCA enhancement reversed) |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (explains divisible statutes and when the modified categorical approach applies)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limits the modified categorical approach to statutes that list alternative elements)
- Shular v. United States, 140 S. Ct. 779 (2020) (applies categorical inquiry to determine whether prior conviction meets ACCA criteria)
- McNeill v. United States, 563 U.S. 816 (2011) (instructs that the statute of conviction is assessed historically for prior convictions)
- Olano v. United States, 507 U.S. 725 (1993) (plain‑error review framework for appellate review of forfeited claims)
- United States v. Green, 996 F.3d 176 (4th Cir. 2021) (examines preserving error and affirms vacatur where outcome would be same under plain error)
- United States v. Furlow, 928 F.3d 311 (4th Cir. 2019) (discusses divisibility of South Carolina drug statutes and application of modified categorical approach)
- United States v. Cornette, 932 F.3d 204 (4th Cir. 2019) (applies backward‑looking comparison of statutes for categorical analysis)