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First Circuit: ‘Controlled Substances Offense’ Under § 2K2.1(a)(2) of USSG Refers to Time of Sentencing, Not Time of Prior Conviction

by Anthony W. Accurso

The U.S. Court of Appeals for the First Circuit held that the term “controlled substance offense” in § 2K2.1(a)(2) of the U.S. Sentencing Guidelines (“USSG”) refers to substances that are controlled at the time of the defendant’s sentencing, not at the time of their prior conviction.

On September 2, 2018, Mohammed Abdulaziz was found in possession of a firearm despite having been convicted of several prior felonies. In preparation for his sentencing hearing to be held on September 26, 2019, the U.S. Probation Office prepared a PSR that noted Abdulaziz had three prior felony offenses in the state of Massachusetts.

The PSR applied a sentence enhancement under § 2K2.1(a)(2) because the probation officer decided Abdulaziz met the criterion of having committed his current offense “subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.”

His January 2010 conviction of assault with a deadly weapon was indisputably a violent offense. At his sentencing, the Government did not argue that his April 2018 conviction for unarmed assault with intent to rob was a violent offense, so it was not considered for purposes of the enhancement.

This meant that his third offense—a July 2014 conviction for possession with intent to distribute “Marihuana,” which the state law defined as a “controlled substance,” in violation of Mass. Gen. Laws. ch. 94C, §§ 31, Class D(b)(1), and 32C(a)—would be determinative.

The U.S. District Court for the District of Massachusetts ruled that this enhancement applied, which raised his calculated base offense level from as low as 20 to 24. While his criminal history category (“CHC”) was calculated as VI, the court applied a departure under § 4A1.3(b) due to the age of some of his convictions. This resulted in a CHC of IV and a range of 57 to 71 months. In September 2019, the court issued a sentence of 60 months’ imprisonment, which he timely appealed.

The Court stated that the question at is: “what constitutes a “controlled substance” within the meaning of this guideline?”

Because the USSG enhancement relies on a defendant’s prior controlled substance offense, courts “look only to the elements of the Massachusetts law offense underlying the 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,’” the Court stated, quoting United States v. Capelton, 966 F.3d 1 (1st Cir. 2020). That is, in applying the categorical approach to the question of whether Adulaziz’s July 2014 state conviction was for a “controlled substance offense” for purposes of § 2K2.1(a)(2), court “look only to the elements” of the Massachusetts law he was convicted of violating and “not to ‘how [he] actually perpetrated the crime to decide if the offense, as defined in the statute, matches [the guideline’s] criteria’ for a ‘controlled substance offense.’” Id.

Both parties agreed that the Massachusetts statute in question criminalizes hemp possession in its definition of “Marihuana.” As courts must look to “the least of the acts” criminalized by the statute, they must assess whether a conviction involving hemp would be a predicate offense capable of justifying the enhancement. Johnson v. United States, 559 U.S. 133 (2010). As a result, his conviction must be viewed as a conviction for possession with the intent to distribute hemp, even though the record isn’t clear on the matter. See Moncrieffe v. Holder, 569 U.S. 184 (2013). Consequently, the Court explained that the case hinges on the answer to the following question: “is a conviction of such a hemp-based offense a conviction of a ‘controlled substance offense’ within the meaning of § 2K2.1(a)(2)?”

Both parties agreed that whether a substance is “controlled” is determined by the federal Controlled Substances Act (“CSA”) and not the state’s list of controlled substances. The CSA allows the Attorney General to “add” or “remove any drug or other substance from the schedules [provided that certain findings are made].” The Court explained that the “CSA’s drug schedules were incorporated into the guidelines itself at the time” of Abdulaziz’s § 922(g) [September 2019] sentencing, so the version of the drug schedules in effect at that time determines what constitutes a “controlled substance” for purposes of the case.

At the time of Abdulaziz’s September 2019 sentencing, hemp was not listed as a controlled substance on the CSA’s drug schedules. See Agriculture Improvement Act § 12619.

Since 18 U.S.C. § 3553(a)(4)(A)(ii) requires courts to apply the guidelines that are in effect at the time of sentencing, whether a prior conviction involving hemp is a controlled substance offense in 2019 is a straightforward matter—hemp was not classified as a controlled substance at the time of Abdulaziz’s. Thus, the Court held hemp was not a federal controlled substance at the time of Abdulaziz’s sentencing in September 2019, so the district court erred in treating his 2014 possession conviction as a predicate offense for enhancement under § 2K2.1(a)(2).

Accordingly, the Court vacated the sentence and remanded for resentencing. See: United States v. Abdulaziz, 998 F.3d 519 (1st Cir. 2021). 

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Related legal cases

United States v. Abdulaziz

Moncrieffe v. Holder

Supreme Court of the United States
569 U.S. 184; 133 S.Ct. 1678; 185 L.Ed.2d 727

Adrian MONCRIEFFE, Petitioner
v.
Eric H. HOLDER, Jr., Attorney General.

No. 11–702.

Argued Oct. 10, 2012.

Decided April 23, 2013.


Syllabus FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.

*1 Under the Immigration and Nationality Act (INA), a noncitizen convicted of an “aggravated felony” is not only deportable, 8 U.S.C. § 1227(a)(2)(A)(iii), but also ineligible for discretionary relief. The INA lists as an “aggravated felony” “illicit trafficking in a controlled substance,” § 1101(a)(43)(B), which, as relevant here, includes the conviction of an offense that the Controlled Substances Act (CSA) makes punishable as a felony, i.e., by more than one year's imprisonment, see 18 U.S.C. §§ 924(c)(2), 3559(a)(5). A conviction under state law “constitutes a ‘felony punishable under the [CSA]’ only if it proscribes conduct punishable as a felony under that federal law.” Lopez v. Gonzales, 549 U.S. 47, 60, 127 S.Ct. 625, 166 L.Ed.2d 462.

Petitioner Moncrieffe, a Jamaican citizen here legally, was found by police to have 1.3 grams of marijuana in his car. He pleaded guilty under Georgia law to possession of marijuana with intent to distribute. The Federal Government sought to deport him, reasoning that his conviction was an aggravated felony because possession of marijuana with intent to distribute is a CSA offense, 21 U.S.C. § 841(a), punishable by up to five years' imprisonment, § 841(b)(1)(D). An Immigration Judge ordered Moncrieffe removed, and the Board of Immigration Appeals affirmed. The Fifth Circuit denied Moncrieffe's petition for review, rejecting his reliance on § 841(b)(4), which makes marijuana distribution punishable as a misdemeanor if the offense involves a small amount for no remuneration, and holding that the felony provision, § 841(b)(1)(D), provides the default punishment for his offense.

Held: If a noncitizen's conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the INA. Pp. –––– – ––––.

(a) Under the categorical approach generally employed to determine whether a state offense is comparable to an offense listed in the INA, see, e.g., Nijhawan v. Holder, 557 U.S. 29, 33–38, 129 S.Ct. 2294, 174 L.Ed.2d 22, the noncitizen's actual conduct is irrelevant. Instead “the state statute defining the crime of conviction” is examined to see whether it fits within the “generic” federal definition of a corresponding aggravated felony. Gonzales v. Duenas–Alvarez, 549 U.S. 183, 186, 127 S.Ct. 815, 166 L.Ed.2d 683. The state offense is a categorical match only if a conviction of that offense “ ‘necessarily’ involved ... Facts equating to [the] generic [federal offense].” Shepard v. United States, 544 U.S. 13, 24, 125 S.Ct. 1254, 161 L.Ed.2d 205. Because this Court examines what the state conviction necessarily involved and not the facts underlying the case, it presumes that the conviction “rested upon [nothing] more than the least of th[e] acts” criminalized, before determining whether even those acts are encompassed by the generic federal offense. Johnson v. United States, 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1. Pp. –––– – ––––.

(b) The categorical approach applies here because “illicit trafficking in a controlled substance” is a “generic crim[e].” Nijhawan, 557 U.S., at 37. Thus, a state drug offense must meet two conditions: It must “necessarily” proscribe conduct that is an offense under the CSA, and the CSA must “necessarily” prescribe felony punishment for that conduct. Possession of marijuana with intent to distribute is clearly a federal crime. The question is whether Georgia law necessarily proscribes conduct punishable as a felony under the CSA. Title 21 U.S.C. § 841(b)(1)(D) provides that, with certain exceptions, a violation of the marijuana distribution statute is punishable by “a term of imprisonment of not more than 5 years.” However, one of those exceptions, § 841(b)(4), provides that “any person who violates [the statute] by distributing a small amount of marihuana for no remuneration shall be treated as” a simple drug possessor, i.e., as a misdemeanant. These dovetailing provisions create two mutually exclusive categories of punishment for CSA marijuana distribution offenses: one a felony, the other not. The fact of a conviction under Georgia's statute, standing alone, does not reveal whether either remuneration or more than a small amount was involved, so Moncrieffe's conviction could correspond to either the CSA felony or the CSA misdemeanor. Thus, the conviction did not “necessarily” involve facts that correspond to an offense punishable as a felony under the CSA. Pp. –––– – ––––.

*2 (c) The Government's contrary arguments are unpersuasive. The Government contends that § 841(b)(4) is irrelevant because it is merely a mitigating sentencing factor, not an element of the offense. But that understanding is inconsistent with Carachuri–Rosendo v. Holder, 560 U.S. ––––, which recognized that when Congress has chosen to define the generic federal offense by reference to punishment, it may be necessary to take account of federal sentencing factors too. The Government also asserts that any marijuana distribution conviction is presumptively a felony, but the CSA makes neither the felony nor the misdemeanor provision the default. The Government's approach would lead to the absurd result that a conviction under a statute that punishes misdemeanor conduct only, such as § 841(b)(4) itself, would nevertheless be a categorical aggravated felony.

The Government's proposed remedy for this anomaly—that noncitizens be given an opportunity during immigration proceedings to demonstrate that their predicate marijuana distribution convictions involved only a small amount of marijuana and no remuneration—is inconsistent with both the INA's text and the categorical approach. The Government's procedure would require the Nation's overburdened immigration courts to conduct precisely the sort of post hoc investigation into the facts of predicate offenses long deemed undesirable, and would require uncounseled noncitizens to locate witnesses years after the fact.

Finally, the Government's concerns about the consequences of this decision are exaggerated. Escaping aggravated felony treatment does not mean escaping deportation, because any marijuana distribution offense will still render a noncitizen deportable as a controlled substances offender. Having been found not to be an aggravated felon, the noncitizen may seek relief from removal such as asylum or cancellation of removal, but the Attorney General may, in his discretion, deny relief if he finds that the noncitizen is actually a more serious drug trafficker. Pp. –––– – ––––.

*3 662 F.3d 387, reversed and remanded.

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined. THOMAS, J., and ALITO, J., filed dissenting opinions.


CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Thomas C. Goldstein, Washington, DC, for Petitioner.

Pratik A. Shah, Washington, DC, for Respondent.

Pamela S. Karlan, Jeffrey L. Fisher, Stanford Law School, Supreme Court Litigation Clinic, Stanford, CA, Angel L. Arias, Arias Law Group, P.A., Hollywood, FL, Thomas C. Goldstein, Counsel of Record, Kevin K. Russell, Amy Howe, Tejinder Singh, Goldstein & Russell, P.C., Washington, DC, for Petitioner.

Donald B. Verrilli, Jr., Solicitor General, Stuart F. Delery, Acting Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Pratik A. Shah, Assistant to the Solicitor General, Counsel of Record, Donald E. Keener, W. Manning Evans, Attorneys, Department of Justice, Washington, DC, for Respondent.



Justice SOTOMAYOR delivered the opinion of the Court.

The Immigration and Nationality Act (INA), 66 Stat. 163, 8 U.S.C. § 1101 et seq., provides that a noncitizen who has been convicted of an “aggravated felony” may be deported from this country. The INA also prohibits the Attorney General from granting discretionary relief from removal to an aggravated felon, no matter how compelling his case. Among the crimes that are classified as aggravated felonies, and thus lead to these harsh consequences, are illicit drug trafficking offenses. We must decide whether this category includes a state criminal statute that extends to the social sharing of a small amount of marijuana. We hold it does not.

I

A

The INA allows the Government to deport various classes of noncitizens, such as those who overstay their visas, and those who are convicted of certain crimes while in the United States, including drug offenses. § 1227. Ordinarily, when a noncitizen is found to be deportable on one of these grounds, he may ask the Attorney General for certain forms of discretionary relief from removal, like asylum (if he has a well-founded fear of persecution in his home country) and cancellation of removal (if, among other things, he has been lawfully present in the United States for a number of years). §§ 1158, 1229b. But if a noncitizen has been convicted of one of a narrower set of crimes classified as “aggravated felonies,” then he is not only deportable, § 1227(a)(2)(A)(iii), but also ineligible for these discretionary forms of relief. See §§ 1158(b)(2)(A)(ii), (B)(i); §§ 1229b(a)(3), (b)(1)(C).FN1

FN1. In addition to asylum, a noncitizen who fears persecution may seek withholding of removal, 8 U.S.C. § 1231(b)(3)(A), and deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100–20, p. 20, 1465 U.N.T.S. 85; 8 CFR § 1208.17(a) (2012). These forms of relief require the noncitizen to show a greater likelihood of persecution or torture at home than is necessary for asylum, but the Attorney General has no discretion to deny relief to a noncitizen who establishes his eligibility. A conviction of an aggravated felony has no effect on CAT eligibility, but will render a noncitizen ineligible for withholding of removal if he “has been sentenced to an aggregate term of imprisonment of at least 5 years” for any aggravated felonies. 8 U.S.C. § 1231(b)(3)(B).


The INA defines “aggravated felony” to include a host of offenses. § 1101(a)(43). Among them is “illicit trafficking in a controlled substance.” § 1101(a)(43)(B). This general term is not defined, but the INA states that it “include[es] a drug trafficking crime (as defined in section 924(c) of title 18).” Ibid. In turn, 18 U.S.C. § 924(c)(2) defines “drug trafficking crime” to mean “any felony punishable under the Controlled Substances Act,” or two other statues not relevant here. The chain of definitions ends with § 3559(a)(5), which provides that a “felony” is an offense for which the “maximum term of imprisonment authorized” is “more than one year.” The upshot is that a noncitizen's conviction of an offense that the Controlled Substances Act (CSA) makes punishable by more than one year's imprisonment will be counted as an “aggravated felony” for immigration purposes. A conviction under either state or federal law may qualify, but a “state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” Lopez v. Gonzales, 549 U.S. 47, 60, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006).

B

*4 Petitioner Adrian Moncrieffe is a Jamaican citizen who came to the United States legally in 1984, when he was three. During a 2007 traffic stop, police found 1.3 grams of marijuana in his car. This is the equivalent of about two or three marijuana cigarettes. Moncrieffe pleaded guilty to possession of marijuana with intent to distribute, a violation of Ga.Code Ann. § 16–13–30(j)(1) (2007). Under a Georgia statute providing more lenient treatment to first-time offenders, § 42–8–60(a) (1997), the trial court withheld entering a judgment of conviction or imposing any term of imprisonment, and instead required that Moncrieffe complete five years of probation, after which his charge will be expunged altogether.FN2 App. To Brief for Petitioner 11–15.

FN2. The parties agree that this resolution of Moncrieffe's Georgia case is nevertheless a “conviction” as the INA defines that term, 8 U.S.C. § 1101(a)(48)(A). See Brief for Petitioner 6, n. 2; Brief for Respondent 5, n. 2.


Alleging that this Georgia conviction constituted an aggravated felony, the Federal Government sought to deport Moncrieffe. The Government reasoned that possession of marijuana with intent to distribute is an offense under the CSA, 21 U.S.C. § 841(a), punishable by up to five years' imprisonment, § 841(b)(1)(D), and thus an aggravated felony. An Immigration Judge agreed and ordered Moncrieffe removed. App. To Pet. For Cert. 14a–18a. The Board of Immigration Appeals (BIA) affirmed that conclusion on appeal. Id., at 10a–13a.

The Court of Appeals denied Moncrieffe's petition for review. The court rejected Moncrieffe's reliance upon § 841(b)(4), a provision that, in effect, makes marijuana distribution punishable only as a misdemeanor if the offense involves a small amount of marijuana for no remuneration. It held that in a federal criminal prosecution, “the default sentencing range for a marijuana distribution offense is the CSA's felony provision, § 841(b)(1)(D), rather than the misdemeanor provision.” 662 F.3d 387, 392 (C.A.5 2011). Because Moncrieffe's Georgia offense penalized possession of marijuana with intent to distribute, the court concluded that it was “equivalent to a federal felony.” Ibid.

We granted certiorari, 566 U.S. –––– (2012), to resolve a conflict among the Courts of Appeals with respect to whether a conviction under a statute that criminalizes conduct described by both § 841's felony provision and its misdemeanor provision, such as a statute that punishes all marijuana distribution without regard to the amount or remuneration, is a conviction for an offense that “proscribes conduct punishable as a felony under” the CSA. FN3 Lopez, 549 U.S., at 60. We now reverse.

FN3. Compare 662 F.3d 387 (C.A.5 2011) (case below), Garcia v. Holder, 638 F.3d 511 (C.A.6 2011) (is an aggravated felony), and Julce v. Mukasey, 530 F.3d 30 (C.A.1 2008) (same), with Martinez v. Mukasey, 551 F.3d 113 (C.A.2 2008) (is not an aggravated felony), and Wilson v. Ashcroft, 350 F.3d 377 (C.A.3 2003) (same).


II

A

*5 When the Government alleges that a state conviction qualifies as an “aggravated felony” under the INA, we generally employ a “categorical approach” to determine whether the state offense is comparable to an offense listed in the INA. See, e.g., Nijhawan v. Holder, 557 U.S. 29, 33–38, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009); Gonzales v. Duenas–Alvarez, 549 U.S. 183, 185–187, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). Under this approach we look “not to the facts of the particular prior case,” but instead to whether “the state statute defining the crime of conviction” categorically fits within the “generic” federal definition of a corresponding aggravated felony. Id., at 186 (citing Taylor v. United States, 495 U.S. 575, 599–600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). By “generic,” we mean the offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison. Accordingly, a state offense is a categorical match with a generic federal offense only if a conviction of the state offense “ ‘necessarily’ involved ... Facts equating to [the

 

 

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