United States of America v. Rafael Batiz-Torres
No. CR-20-00244-001-TUC-JCH (EJM)
IN
November 16, 2021
Honorable John C. Hinderaker, United States District Judge
WO
ORDER
Pending before the Court is Defendant Rafael Batiz-Torres’ (“Defendant“) objections to the presentence investigative report (“PSR“). (Doc. 61.) This Order addresses
reasons, the Court SUSTAINS Defendant‘s objection to his classification as a career offender.
I. Background
On September 13, 2021, Defendant pled guilty to four counts in the Indictment: Count 7, Importation of Cocaine, in violation of
Probation determined that Defendant is a career offender under the Guidelines with the PSR indicating that Defendant‘s two prior federal felony drug convictions qualify as controlled substance offenses pursuant to USSG §4B1.2(b). (Doc. 64 at 7.) Defendant‘s operative prior convictions include the following: a 2010 prior conviction of conspiracy to possess with intent to distribute marijuana, in violation of
Defendant‘s argument is based on the intersection of the categorical approach and the removal of hemp from the CSA in 2018. (Doc. 61.) He argues that under the categorical approach this Court must presume that his 2010 and 2013 federal convictions rest upon the least culpable conduct that the law proscribes, which, in his case, would include hemp-related offenses. (Doc. 61). According to Defendant, because the Act “amended the Federal definition of marijuana to exempt hemp,” the current Guidelines’ definition of “controlled substance offense” does not include hemp-related offenses. (Doc. 61; See U.S.S.G. § 4B1.1(a)). Therefore, Defendant argues that his prior 2010 and 2013 convictions
II. Analysis
A. Definition of “Controlled Substance Offense”
The Guidelines provide a sentencing enhancement for offenders who, while at least eighteen years old, commit a crime of violence or a controlled substance offense, and have “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). The term “controlled substance offense” is defined in Section 4B1.2(b) as:
an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
U.S.S.G. § 4B1.2(b).
Whether the CSA,
Although Section 4B1.2(b) does not explicitly refer to or adopt language in the CSA, in 2012 the Ninth Circuit found that the term “drug trafficking offense” in Section 2L1.2—with a definition nearly identical to Section 4B1.2(b)‘s “controlled substance offense“—was defined by the CSA and its schedules. United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir. 2012) (“...we hold that the term ‘controlled substance,’ as used in the ‘drug trafficking offense’ definition in U.S.S.G. § 2L1.2, means those substances listed in the CSA. Our holding today harmonizes the definition in the Sentencing Guidelines with the immigration statute...“). The Court explained that using the CSA‘s definition in Section 2L1.2 furthers uniform application of federal sentencing law and serves the stated goals of both the Guidelines and the categorical approach. Id. at 1166.
This year, the Ninth Circuit clarified Leal-Vega and held that Section 4B1.2(b) must also refer to the “controlled substance” definition in the CSA. Bautista, 989 F.3d at 702 (“there is no meaningful way to distinguish the uniformity-in-federal-sentencing rationale that we adopted in Leal-Vega, which compels the conclusion that ‘controlled substance’ in § 4B1.2(b) refers to a ‘controlled substance’ as defined in the CSA“). As such, a predicate offense under U.S.S.G. § 4B1.1(a) must involve a “controlled substance” listed in the CSA.
Under the categorical approach, Defendant‘s prior convictions qualify as controlled substance offenses “only if the statute‘s elements are the same as, or narrower than, those of the generic offense.” Descamps v. United States, 570 U.S. 254, 257 (2013).
The Ninth Circuit has instructed district courts to compare the elements of the crime as they existed when a defendant was convicted of that offense to those of the crime as defined in federal law at the time of federal sentencing. Bautista, 989 F.3d at 705. In Bautista, the Ninth Circuit applied a categorical approach to determine whether a prior state-law conviction under
The question before us is whether the sentencing court should determine the relevance of Bautista‘s prior state conviction under the federal sentencing law that exists at the time of sentencing or under federal sentencing law that no longer exists. McNeill nowhere implies that the court must ignore current federal law and turn to a superseded version of the United States Code. Indeed, it would be illogical to conclude that federal sentencing law attaches “culpability and dangerousness” to an act that, at the time of sentencing, Congress has concluded is not culpable and dangerous. Such a view would prevent amendments to federal criminal law from affecting federal sentencing and would hamper Congress’ ability to revise federal criminal law.
Id. at 703. See also United States v. Abdulaziz, 998 F.3d 519, 525 (1st Cir. 2021) (finding that the definition of “controlled substance offense” under U.S.S.G. § 4B1.2(b) must reference the version of the Controlled Substances Act at the time of the instant federal sentencing, not a prior version).
Here, Defendant was convicted in 2010 and 2013 of “conspiracy to possess with intent to distribute” and “possession with intent to distribute” marijuana under federal law. See
The government offers several arguments to the contrary that the Court finds unpersuasive. In their first Response, the government summarily offers that “[m]arijuana has been a controlled substance for decades.... In the Controlled Substances Act of 1970, the Federal government categorized marijuana as a Schedule I substance.” (Doc. 66 at 2) (internal citations omitted).
The government next argues that the existing federal statute “substantially corresponds” to the pre-2018 federal statute and thus is not overbroad under the categorical approach. (Doc. 67 at 2.) Further, the government, in arguing that the amended CSA is only a “modest deviation,” suggests that Defendant must show that before 2018, the federal government prosecuted violations of
[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute‘s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.
Id. at 822. However, in considering Duenas-Alvarez, the Ninth Circuit warned that in instances where the statute‘s greater breadth is evident from its text, “no legal imagination is required to hold that a realistic probability exists that the state will apply its statute to conduct that falls outside the generic definition of the crime.” United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (internal quotation and citation omitted), abrogated on other grounds by United States v. Stitt, 139 S. Ct. 399 (2018). Because the CSA presently excludes hemp, and the pre-2018 CSA did not, the latter statute‘s greater breadth is evident from its text.
III. Conclusion
Because hemp is no longer a controlled substance, Defendant‘s prior federal convictions are overbroad, and do not count as controlled substance offenses under U.S.S.G. §4B1.2 for purposes of a career offender enhancement. Defendant‘s objection of his classification as a career offender is SUSTAINED.
IT IS ORDERED.
Dated this 15th day of November, 2021.
Honorable John C. Hinderaker
United States District Judge