UNITED STATES OF AMERICA, Appellant v. JAMAR M. LEWIS
No. 21-2621
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
January 26, 2023
PRECEDENTIAL
On Aрpeal from the United States District Court for the District of New Jersey (D.C. No.
Argued on September 6, 2022
Before: JORDAN, HARDIMAN, and MATEY, Circuit Judges.
(Filed: January 26, 2023)
Rachael A. Honig
Philip R. Sellinger
Mark E. Coyne
Richard J. Ramsay [Argued]
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Counsel for Appellant
Neal K. Katyal
Sean M. Marotta
Danielle D. Stempel [Argued]
Hogan Lovells US
555 Thirteenth Street, N.W., Columbia Square
Washington, DC 20004
Lisa Van Hoeck
Office of Federal Public Defender
22 South Clinton Avenue
Station Plaza #4, 4th Floor
Trenton, NJ 08609
Counsel for Defendant-Appellee
Davina T. Chen
National Sentencing Resource Counsel
Federal Public & Community Defenders
321 East Second Street
Los Angeles, CA 90012
Counsel for Amici American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Delaware, America Civil Liberties Union Foundation of New Jersey, American CivilLiberties Union Foundation of Pennsylvania, and National Association of Criminal Defense Lawyers, in support of Defendant-Appellee
Sarah H. Concannon
Quinn Emanuel Urquhart & Sullivan
1300 I Street, N.W. Suite 900
Washington, DC 20005
Counsel for Amicus National Associatiоn for Public Defense, in support of Defendant-Appellee
HARDIMAN, Circuit Judge.
This appeal requires us to decide whether Jamar Lewis‘s 2012 conviction for possession with intent to distribute marijuana in violation of
I
In July 2020, Lewis pleaded guilty in the United States District Court for the District of New Jersey to unlawful possession of a firearm in violation of
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 substаnce) with intent to manufacture, import, export, distribute, or dispense.
Lewis‘s arguments hingеd on a change in the marijuana regulatory scheme. In 2018, Congress amended the CSA‘s definition of “marihuana” to exclude hemp—a low-THC version of cannabis with a variety of industrial and medicinal purposes. See Agriculture Improvement Act of 2018, Pub. L. No. 115-334, § 12619, 132 Stat. 4490, 5018;
The District Court agreed with Lewis. United States v. Lewis, 2021 WL 3508810 (D.N.J. Aug. 10, 2021). The Court found Lewis‘s base offense level was 14, his total offense level was 12 (after deducting two levels for acceptance of responsibility), his criminal history category was VI, and his applicable Guidelines range was 30 to 37 months’ imprisonment. Id. at *2. The District Court varied upward, sentencing Lewis to 42 months. Id. The Government timely appealed.
II
The District Court had federal question jurisdiction under
III
A
The categorical approach dictates whether a prior conviction qualifies as a predicate offense that triggers a Guidelines enhancement. See United States v. Williams, 898 F.3d 323, 333 (3d Cir. 2018). That constrains us to consider only “the statutory definition[] of [Lewis‘s] prior offense[], and not the particular facts underlying [that] conviction[].” See Taylor v. United States, 495 U.S. 575, 600 (1990).1
In the typical application of the categorical approach, we would ask whether the elements of the state crime “match the elements” of the corresponding federal or generic crime. Mathis v. United States, 579 U.S. 500, 504 (2016). Not so in this case, however, because Guidelines
The “other criterion” to which we must compare the elements of Lewis‘s prior conviction, Shular, 140 S. Ct. at 783, comes directly from the Guidelinеs definition of controlled substance offense in
B
We begin by asking whether the meaning of “controlled substance” within
The Second and Ninth Circuits have held that the meaning of “controlled substance” is limited to drugs regulated by the CSA. United States v. Townsend, 897 F.3d 66, 74–75 (2d Cir. 2018); United States v. Bautista, 989 F.3d 698, 702 (9th Cir. 2021). The First and Fifth Circuits have endorsed this federal-law-only approach in dicta or in analogous contexts, but have yet to resolve the question conclusively. United States v. Crocco, 15 F.4th 20, 23–25 (1st Cir. 2021) (describing the federal-law approach as “appealing” and the state-or-fedеral-law approach as “fraught with peril“); United States v. Gomez-Alvarez, 781 F.3d 787, 793–94 (5th Cir. 2015) (adopting a federal-law approach to define “controlled substance” within the definition of “drug trafficking offense” in
Contrary to that view, the Fourth, Seventh, Eighth, and Tenth Circuits have held that drugs regulated by state (but not federal) law are still controlled substances in this context. United States v. Ward, 972 F.3d 364, 372–74 (4th Cir. 2020); United States v. Ruth, 966 F.3d 642, 651–54 (7th Cir. 2020); United States v. Henderson, 11 F.4th 713, 717–19 (8th Cir. 2021); United States v. Jones, 15 F.4th 1288, 1291–96 (10th Cir. 2021). We agree with those courts and hold that a “controlled substance” within the
Thе phrase “controlled substance” is undefined by the Guidelines, so we begin with its ordinary meaning. See Mohamad v. Palestinian Auth., 566 U.S. 449, 454 (2012). Dictionaries define a “controlled substance” as a drug regulated by law. See, e.g., RANDOM HOUSE DICT. OF THE ENG. LANG. (2d ed. 1987) (defining controlled substance as “any of a category of behavior-altering or addictive drugs, such as heroin or cocaine, whose possession and use are restricted by law“). But as the District Court noted, this does not answer the question of which law must regulate the drug. Lewis, 2021 WL 3508810, at *8. The text answers that question. The dеfinition of “controlled substance offense” in Guidelines
The federal-law-only approach reads into
Lewis‘s counterarguments, and the opinions he cites, are unpersuasive for five reasons.
First, the Second Circuit and Lewis rely too heavily on the rebuttable presumption that federal law does not turn on the vagaries of state law, derived from Jerome v. United States, 318 U.S. 101, 104 (1943). See Townsend, 897 F.3d at 71. Although we presume federal law is not “dependent on state law,” we do so only absent a “plain indication to the contrаry.” United States v. Pray, 373 F.3d 358, 362 (3d Cir. 2004) (citation omitted). In this case, the
Second, the categorical approach does not require, as Lewis and some courts have suggested, using a uniform drug schedule to define “controlled substance.” See Gomez-Alvarez, 781 F.3d at 793; Bautista, 989 F.3d at 702. Because the categorical apрroach here requires us to interpret the criteria identified by the Guidelines, rather than to identify elements of a federal or generic crime, see supra Section III.A, we do not refer to a single drug schedule to determine whether a drug is a controlled substance.
Third, the sentencing goal of uniformity is illusory in this case. See
Fourth, the commentary to
Finally, we decline Lewis‘s invitation to apply the rule of lenity. That doctrine applies to the Guidelines, United States v. Flemming, 617 F.3d 252, 269–70 (3d Cir. 2010), but only where, “after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty.” United States v. Castleman, 572 U.S. 157, 172–73 (2014) (citation omitted). For the reasons we have explained, the
To sum up, a “controlled substance” under
C
Having determined that a drug regulated by state law qualifies as a “controlled substance” even if it is not also regulated by federal law, we turn to the question when the substance must be regulated by state law for the
This question too has divided the courts of appeals. The First, Second, and Ninth Circuits have concluded that courts must look to the drug schedules at the time of federal sentencing. See United States v. Abdulaziz, 998 F.3d 519, 531 (1st Cir. 2021); United States v. Gibson, 55 F.4th 153, 159 (2d Cir. 2022); Bautista, 989 F.3d at 703. On the other hand, the Sixth Circuit has adopted a timе-of-prior-conviction approach, see United States v. Clark, 46 F.4th 404, 406 (6th Cir. 2022), as has the Eighth Circuit in analogous circumstances, see United States v. Doran, 978 F.3d 1337, 1338, 1340 (8th Cir. 2020) (adopting a time-of-conviction approach where a state reduced marijuana possession to a misdemeanor, thus bringing it outside the definition of “controlled substance offense“), cert. denied, 141 S. Ct. 1507 (2021). We agree with the Sixth and Eighth Circuits.
We start with McNeill v. United States, 563 U.S. 816 (2011). See Clark, 46 F.4th at 409. There, the Supreme Court held that courts must look to the maximum sentence at the time of the predicate conviction—not at the time of federal sentencing—to determine whether a prеvious conviction was for a serious drug offense under the Armed Career Criminal Act. McNeill, 563 U.S. at 820. McNeill‘s prior drug convictions were punishable by the requisite ten years or more at the time of conviction, but the state had reduced the maximum sentence below that threshold by the time of his federal sentencing. Id. at 818. The Supreme Court concluded that the text of the statute, its context, and the absurd results that would otherwise result compelled a time-of-conviction approach. Id. at 819–23.
McNeill does not control Lewis‘s case because “longstanding principles of statutory interpretation allow different results under the Guidelines as opposed to under
Both [the question in McNeill and that presented here] involve recidivism enhancements, which by nature concern a defendant‘s past conduct. In both cases, the defendant relied on an intervеning change in state law (and here federal too) that ostensibly shifts the meaning of a provision that enhances their sentence. Both cases contemplate whether to define that term with reference to current law, or law from the time of the prior conviction.
Clark, 46 F.4th at 409. McNeill held that a state criminal statute that met the definition of a “serious drug offense” at the point of conviction, but was later amended before federal sentencing so the statute no longer met the definition, justified a penalty enhancement. See 563 U.S. at 820. So too here. Hemp was a “controlled substance” under New Jersey law at the time of Lewis‘s prior conviction, so possession with intent to distribute hemp was a “controlled substance offense” under the Guidelines. Just as later amendments to state law did not change the classification of the already-adjudicated offense in McNeill, deregulation of hemp does not reclassify Lewis‘s prior conviction as something other than possession with intent to distribute a controlled substance.
As in McNeill, a time-of-sentencing approach would yield absurd results. See 562 U.S. at 822–23. If we looked to the drug schedules in effect at the time of federal sentencing, any narrowing—even the elimination of one cannabis class or one cocaine isomer—would expunge prior offenses related to that drug for purposes of the enhancemеnt. Doing so would give a windfall to even the most serious drug traffickers and subvert, not vindicate, the Guidelines’ intent to punish recidivists more severely than first-time offenders. Nor, for that matter, could state law retroactively gut federal law by tweaking drug schedules ever so slightly. See id. at 823 (“It cannot be correct that subsequent changes in state law can erase an earlier conviction for ACCA purposes.“). Simply put, controlled substances include those regulated at the time of the predicate conviction.
Lewis rightly notes that McNeill “prescribe[s] only the time for analyzing the elements of the state offense,” rather than the time for determining the elements of the federal or generic offense or other matching criteria. Brown, 47 F.4th at 154. But that qualifying language does not render McNeill less applicable here. Because we define “controlled substance” as a drug regulated by either state or federal law—rather than by reference to any specific drug table—it would strain credulity to suggest that Lewis‘s marijuana conviction was for anything but possession with intent to distribute a “controlled substance.” If the marijuana Lewis possessed was not a drug regulated by law, how could he have been convicted? A controlled substance under the Guidelines need not be a drug currently regulated by law, and a state‘s decision to amend its drug schedules does not vitiate a prior “controlled substance offense.” See McNeill, 563 U.S. at 823.
Courts of appeals that have adoрted a time-of-sentencing approach also justify their decision to do so on the obligation to “use the Guidelines Manual in effect on the date that the defendant is sentenced,” absent an ex post facto issue.
We also respectfully disagree with the Ninth Circuit‘s statement that “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.” Bautista, 989 F.3d at 703 (citation omitted); see Gibson, 55 F.4th at 162. First, that analysis conflicts with the Supreme Court‘s analysis in McNeill. Like the deregulation of a drug, the reduction of a maximum statutory sentence (as in McNeill) reflects a policy judgment that the underlying conduct is less culpable than the prior sentences indicated, but we still enforce the prior policy through the Guidelines enhancement or statutory penalty. Second, the Guidelines consistently enhance federal sentences when the offender has prior state convictions, many of which are for conduct not criminalized under federal law (e.g., battery, rape, murdеr). Finally, it is logical to attach culpability to illegal conduct that is later decriminalized. Distributing hemp in New Jersey was criminal in 2012 and its decriminalization does not expunge convictions under the old regime or eliminate culpability for breaking the prior law. This does not, however, preclude the sentencing court from considering the change in the law to impose a just sentence. See Concepcion v. United States, 142 S. Ct. 2389, 2398 (2022) (recognizing sentencing courts’ “broad discretion to consider all relevant information“).
Contrary to Lewis‘s argument, our holding today is not inconsistent with our opinion in Brown, which adopted a time-of-federal-offense approach for determining whether a prior conviction was for a “serious drug offense” under ACCA. See 47 F.4th at 153. We discussed the Guidelines in Brown only in dicta, and we disavowed any connection between “the ACCA categorical analysis” there and the Guidelines issue here, stating we took “no view on the correctness of” Abdulaziz and Bautista. Id. at 153–54. Our reasoning in Brown also relied heavily on the federal saving statute, which is not at issue herе. See id. at 151–52 (citing
IV
The meaning of “controlled substance” as used in Guidelines