UNITED STATES OF AMERICA, Appellee, v. MOHAMED ABDULAZIZ, Defendant, Appellant.
No. 19-2030
United States Court of Appeals For the First Circuit
June 2, 2021
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
BARRON, Circuit Judge. Mohamed Abdulaziz (“Abdulaziz“) challenges his five-year prison sentence for
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
The United States Probation Office prepared a presentence investigation report (“PSR“). Among other things, the PSR calculated Abdulaziz‘s Guidelines Sentencing Range (“GSR“) for his
The PSR determined that the enhancement applied based on three state law felony convictions that Abdulaziz had sustained before he committed the
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
Thus, the application of the enhancement turned on whether the third state law felony conviction that Abdulaziz sustained prior to committing the
The District Court next adjusted Abdulaziz‘s total offense level downward due to his timely acceptance of 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,”
Setting aside for the moment the question of what criteria the guideline uses to determine what constitutes what it 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
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, 966 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
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
Abdulaziz‘s
To be sure, the CSA‘s drug schedules do, by design, change over time. See
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;
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
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
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
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
To be sure, the word “conviction[]” in § 2K2.1(a)(2) does require us to look back to the time of a conviction -- rather than to the time of the
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
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 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,
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,”
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
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
In addition to
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“).
[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. Rodriguez, 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.“).
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
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
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
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).
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
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
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).”
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
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
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 --
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
D.
In sum, hemp was not on the CSA‘s drug schedules when Abdulaziz was sentenced on account of his
III.
The sentence is vacated and the case is remanded for further proceedings consistent with this opinion.8