UNITED STATES OF AMERICA v. EMERSON MILLER
CRIMINAL NO. 1:18-CR-6
IN
August 19, 2020
Judge Conner
MEMORANDUM
Defendant Emerson Miller objects to being classified as a career offender under
I. Factual Background and Procedural History
A federal grand jury sitting in Harrisburg, Pennsylvania, returned a seven-count indictment against Miller in January 2018. (Doc. 1). The indictment charged Miller with four counts of distribution and possession with intent to distribute unspecified quantities of cocaine base in violation of
On April 1, 2019, Miller pled guilty to Counts 5, 6, and 7. (See Doc. 52). The written plea agreement includes two nonbinding stipulations: first, that Miller is responsible for between 11.2 and 16.8 grams of cocaine and, second, that the serial number on the at-issue firearm was obliterated. (Doc. 48 ¶ 11). The agreement also includes a provision wherein the government agrees to recommend a sentence of 188 months’ imprisonment, ostensibly on the assumption that Miller would qualify as a career offender. (See id. ¶ 12).
The presentence report catalogues Miller‘s three offenses into two separate groups as required under Guidelines Section 3D1.2(c) and (d). (See Doc. 54 ¶ 17). The controlled-substance offense (Group 1) has an adjusted offense level of 18. (Id. ¶ 23). The firearms offenses (Group 2) receive a base offense level of 24 pursuant to Section 2K2.1(a)(2) (because the report finds that Miller committed these offenses after sustaining at least two prior felony controlled-substance convictions), and a four-level enhancement under Section 2K2.1(b)(4)(B) (because the firearm had an obliterated serial number), resulting in an adjusted offense level of 28. (Id. ¶¶ 24, 25, 29). Applying multicount adjustment rules, the combined adjusted offense level for all groups becomes 28. (See id. ¶ 28). However, the report also finds that Miller qualifies as a career offender, increasing his combined adjusted offense level to 34. (Id. ¶ 34). With a three-level reduction for acceptance of responsibility, (id. ¶¶ 35-36), the report calculates a total offense level of 31, (id. ¶ 37).
The career-offender designation impacts Miller‘s criminal history category too. Miller has a criminal history score of seven, which equates to a criminal history category of IV. (Id. ¶ 48). But with a career-offender classification, Miller‘s criminal history category is automatically increased to VI. (Id. ¶ 49). An offense level of 31 and criminal history category of VI produce a Guidelines range of 188 to 235 months’ imprisonment.1 (Id. ¶ 73).
II. Discussion
Miller raises two objections to the presentence report, both of which implicate
the same definition of “controlled substance offense.” See
Although these objections involve several nested issues, our inquiry is, at bottom, a narrow one: does the definition of marijuana under Pennsylvania law sweep more broadly than its federal counterpart? Miller contends that it does and that, as a result, his 2008 conviction for possession with intent to deliver a controlled substance (marijuana) under
A. Divisibility of Section 780-113(a)(30)
Our analysis is initially guided by the categorical approach. See United States v. Williams, 898 F.3d 323, 333 (3d Cir. 2018) (citing Taylor v. United States, 495 U.S. 575, 588 (1990)). Under this approach, we compare “the elements of the statute forming the basis of the defendant‘s conviction with the elements of the [federal] ‘generic’ crime—i.e., the [federal] offense as commonly understood.” United States v. Henderson, 841 F.3d 623, 627 (3d Cir. 2016) (citation omitted). Our focus is on “the statutory definitions—i.e., the elements” of the offenses at issue, “not . . . the particular facts underlying [the defendant‘s] convictions.” United States v. Chapman, 866 F.3d 129, 133-34 (3d Cir. 2017) (quoting Descamps v. United States, 570 U.S. 254, 261 (2013)). If, however, the state statute is “divisible“—that is, it provides alternative elements for a conviction and “thereby define[s] multiple crimes“—we must apply the “modified” categorical approach to determine “which alternative formed the basis of the defendant‘s prior conviction.” Henderson, 841 F.3d at 627 (quoting Mathis v. United States, 579 U.S. ___, 136 S. Ct. 2243, 2249 (2016); Descamps, 570 U.S. at 257). Only if the elements of the prior conviction match, or are narrower than, the federal crime will the prior offense qualify as a “controlled substance offense” under the career-offender guideline. United States v. Dahl, 833 F.3d 345, 349 (3d Cir. 2016) (citing Descamps, 570 U.S. at 261).
The Third Circuit addressed Section 780-113(a)(30)‘s status as a career-offender predicate just two years ago in United States v. Glass, 904 F.3d 319 (3d Cir. 2018). Glass, however, confronted a different issue: the defendant argued that the state statute criminalized mere offers to sell while federal law did not, rendering Section 780-113(a)(30) categorically broader than its federal counterpart. Glass, 904 F.3d at 322. The question was whether the conduct criminalized by the state (i.e., the manner of committing the offense) swept more broadly than the conduct criminalized at the federal level. Id. The Glass court determined that it did not and upheld the defendant‘s Section 780-113(a)(30) convictions as career-offender predicates. Id. at 324.
The nuanced question raised here is whether the substance criminalized by the state is broader than the substance criminalized by the federal government. And that question must be addressed at a more granular level, since our court of appeals has said time and again that Section 780-113(a)(30) is divisible by drug type, see United States v. Abbott, 748 F.3d 154, 159 (3d Cir. 2014); Henderson, 841 F.3d at 629 n.5, even if it may be indivisible as to “manner of committing the offense,” see United States v. Daniels, 915 F.3d 148, 152 n.3 (3d Cir. 2019) (discussing relationship between Abbott and Glass). We must therefore apply the modified categorical approach and look to the available Shepard documents to determine Miller‘s specific offense of conviction. See Shepard v. United States, 544 U.S. 13, 20, 26 (2005). That review confirms that Miller‘s 2008 conviction under Section 780-113(a)(30) was for possession with intent to deliver marijuana. (See Doc. 78-1).3
B. Element-to-Element Comparison
Our next step is to identify the elements of Miller‘s prior conviction, as it is well settled that “[a] state conviction cannot qualify as a ‘controlled substance offense’ if its elements are broader than those listed in
At the time of Miller‘s offense conduct and conviction, and indeed to the present day, Pennsylvania‘s CSA defines “marihuana” as follows:
all forms, species and/or varieties of the genus Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of
such plant, its seeds or resin; but shall not include tetrahydrocannabinols, the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, cake, or the sterilized seed of such plant which is incapable of germination.
We then compare this element to the corresponding element in the federal offense. See Singh v. Attorney Gen., 839 F.3d 273, 284 (3d Cir. 2016). The federal “offense” here is a “controlled substance offense” as defined by Section 4B1.2(b) of the Guidelines. That section states,
the term “controlled substance offense” means 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.
1. Federal CSA Definition of “Controlled Substance”
Courts are divided on whether “controlled substance” in Section 4B1.2(b) is governed by the federal CSA schedules.4 On one side of the split stand the Second, Fifth, Eighth, Ninth, and possibly Tenth Circuits. The Second Circuit has directly held that a “controlled substance” under
On the other side of the divide are the Sixth, Seventh, and Eleventh Circuits, although it appears that only the Seventh Circuit has issued a precedential opinion on the matter. See generally United States v. Ruth, 966 F.3d 642 (7th Cir. 2020) (relying on United States v. Hudson, 618 F.3d 700, 701 (7th Cir. 2010)); United States v. Peraza, 754 F. App‘x 908 (11th Cir. 2018) (nonprecedential) (relying on, inter alia, United States v. Smith, 775 F.3d 1262 (11th Cir. 2014)); United States v. Sheffey, No. 18-3775, ___ F. App‘x ___, 2020 WL 3495944 (6th Cir. June 29, 2020) (nonprecedential); United States v. Smith, 681 F. App‘x 483, 488 (6th Cir. 2017) (nonprecedential). The gist of the Seventh Circuit‘s reasoning in Ruth is that
We are persuaded by the ratio decidendi of the Second, Fifth, Eighth, and Ninth Circuits. We agree that uniformity in federal sentencing is paramount, particularly with respect to application of the career-offender enhancement. Indeed, it is one of the primary goals of the Guidelines. See
We are further influenced by our court of appeals’ analysis in Glass dealing with closely related issues. In discussing the defendant‘s argument concerning Section 780-113(a)(30)‘s term “deliver” as defined by Section 780-102(b), the Glass court sua sponte identified the federal CSA as the “federal counterpart” to the Pennsylvania CSA for purposes of the career-offender challenge under review. See Glass, 904 F.3d at 322 (citing
To be abundantly clear, we hold that, for purposes of career-offender classification, the term “controlled substance” in
2. Categorical Comparison of Elements
Having established that the federal CSA‘s schedules control, we look to that statute‘s definition of marijuana for the required categorical element-to-element comparison. Following passage of the 2018 Farm Bill, the federal Schedule I controlled substance of “marihuana” is defined similarly to Pennsylvania‘s law but explicitly excludes hemp.
It is immediately apparent that Pennsylvania‘s CSA defines marijuana more broadly than its federal counterpart. Put differently, Pennsylvania‘s CSA—with regard to marijuana offenses—criminalizes more conduct than its federal analogue. Specifically, Pennsylvania criminalizes possession with intent to deliver hemp, that is, Cannabis sativa L. with a THC concentration at or below 0.3 percent; the federal CSA does not. When an element of a state crime sweeps more broadly than an element of the corresponding federal offense, the state crime cannot constitute a career-offender predicate. Glass, 904 F.3d at 321. Following the 2018 Farm Bill amendments, that is exactly what Pennsylvania‘s possession-with-intent-to-deliver-marijuana law does. So it cannot constitute a controlled-substance predicate under
The government‘s arguments to the contrary are unpersuasive. The government first contends that, because the federal CSA‘s definition of marijuana was not amended until 2018, this definition has “no
The government is only half right. “Under the categorical approach, we look to the elements of the state statute as it existed at the time of the prior conviction.” Dahl, 833 F.3d at 354 (emphasis added) (citing Taylor, 495 U.S. at 598). The portions of both Ramos and Steed referenced by the government merely provide examples of this well-settled rule in action. See Ramos, 892 F.3d at 607 (discussing elements of defendant‘s prior 1998 conviction under
When applying the categorical approach, however, courts look to the federal offense as it presently exists. This makes intuitive sense, because the categorical approach is predominantly used to determine present-day implications of prior convictions. See, e.g.,
The government next argues that Pennsylvania “carved out an exemption for hemp cultivation and processing in 2016,” so the mismatch in controlled-substance schedules has been rectified. (Doc. 79 at 8). In 2016, Pennsylvania enacted the
This argument fails for at least two reasons. First, even if a legislative amendment in 2016 decriminalized hemp under Pennsylvania law, we must look to the
Second, although the Industrial Hemp Research Act provides protections for certain regulated hemp production, it did not remove hemp from the Pennsylvania CSA‘s schedule of controlled substances or otherwise decriminalize its possession or distribution. The Act simply states that “activity conducted in compliance with this chapter shall not be in violation of the laws of the Commonwealth,” including the Pennsylvania CSA.
The government‘s final argument is that there is “no evidence that an individual would be convicted under” Section 780-113(a)(30) “for distribution of hemp.” (Doc. 79 at 13). The government quotes Gonzalez v. Duenas-Alvarez, 549 U.S. 183 (2007), for the proposition that to “find that a state statute creates a crime outside the generic definition . . . 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. (quoting Gonzalez, 549 U.S. at 193). According to the government, “the state of Pennsylvania would never prosecute an individual under [Section] 780-113 for an offense involving hemp.” (Doc. 79 at 13-14). If at all, the government maintains, a person would be prosecuted under the enforcement provisions of the Industrial Hemp Research Act,
We reject this speculative argument for two reasons. First, Miller was convicted in 2008, eight years before passage of the Industrial Hemp Research Act. Second, the Third Circuit has rejected the “realistic probability” inquiry when the elements of the prior state conviction plainly do not match the corresponding federal offense. See Salmoran v. Attorney Gen., 909 F.3d 73, 81-82 (3d Cir. 2018); Singh, 839 F.3d at 286 & n.10. Our court of appeals does not require defendants to identify cases of actual prosecution when the state statute “expressly authorizes the state government to enforce broader conduct.” Salmoran, 909 F.3d at 82. In such situations, “‘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.” Id. (quoting United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007), abrogated on other grounds, United States v. Stitt, 586 U.S. ___, 139 S. Ct. 399 (2018)); see also Jean-Louis v. Attorney Gen., 582 F.3d 462, 481 (3d Cir. 2009).
Assuming arguendo a “realistic probability” of prosecution is required, we are satisfied that it exists. As Miller correctly observes, what mattered at the time of his conviction, and likely still matters for Pennsylvania‘s CSA today, is that the substance seized by law enforcement tests positive for “marihuana,” a Schedule I controlled substance. See Commonwealth v. Smith, No. 247 MDA 2016, 2016 WL 5266633, at *1 (Pa. Super. Ct. Sept. 22, 2016) (nonprecedential) (explaining that the “marijuana was field tested and confirmed to contain THC, a Schedule I controlled substance“); (see, e.g., Doc. 80-1
In sum, the government‘s counterarguments are unavailing. We are constrained to conclude that Miller‘s 2008 conviction for possession with intent to deliver marijuana under Section 780-113(a)(30) sweeps more broadly than its federal counterpart and thus cannot qualify as a “controlled substance offense” under
III. Conclusion
For these reasons, the court will sustain Miller‘s objection to the presentence report‘s career-offender designation. Miller has, at most, one controlled-substance predicate and therefore cannot be classified as a career offender. We will also sustain his related objection to utilization of
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
Dated: August 19, 2020