Fourth Circuit: South Carolina Marijuana Law Not a Categorical Match to Federal Law for ACCA Sentencing
by David M. Reutter
The U.S. Court of Appeals for the Fourth Circuit held that a defendant’s convictions under South Carolina law for possession of marijuana with intent to distribute in proximity to a school are not a categorical match under the Armed Career Criminal Act (“ACCA”) because the state’s definition of “marijuana” is broader than the federal definition in 21 U.S.C.S. § 802.
The Court’s opinion was issued in an appeal brought by Soterio Lamar Hope. He was charged in a February 1, 2018, indictment with knowingly possessing a firearm and ammunition, all of which had been shipped and transported in interstate and foreign commerce, while having previously been convicted of a felony. Hope pleaded guilty to the charge.
A pre-sentence report found Hope qualified for a 15-year mandatory minimum under the ACCA due to three marijuana possession convictions in South Carolina dated May 22, 2013. This resulted in an offense level of 30 after a three-level reduction for Hope taking responsibility, or in other words, for entering a guilty plea. That resulted in a Guidelines Sentence range of 135-168 months.
At his August 12, 2020, sentencing hearing, Hope objected to the application of the ACCA. He argued his South Carolina convictions were not predicate offenses under the ACCA. The district court disagreed and sentenced him to a mandatory minimum sentence under the ACCA of 180 months. Hope appealed.
The Fourth Circuit applied the modified categorical approach, which requires it to determine whether the prior state convictions qualify as predicate offenses, because the statute of conviction is “divisible,” meaning it lists elements in the alternative and thus defines multiple crimes. See Mathis v. United States, 136. S. Ct. 2243 (2016). Prior convictions are predicate offenses “only if [each] statute’s elements are the same as, or narrower than, those of [the relevant federal definition.]” Descamps v. United States, 570 U.S. 254 (2013). Thus, if Hope’s prior state offenses “cover a greater swatch of conduct than the elements of the relevant offense, those crime[s] cannot qualify” as predicates under the ACCA. Mathis.
For Hope to qualify under the ACCA, he must have three previous convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from each other.” 18 U.S.C. § 924(e)(1). To qualify as a serious drug offense, a drug or precursor must be included in schedule I, II, III, IV, or V of the Controlled Substances Act. 21 U.S.C. § 802(6).
At issue here is whether Hope’s prior state conviction for possession of marijuana qualifies as a schedule I drug under federal law. The Court held that under current federal law it does not. With the 2018 Farm Bill, Congress removed hemp from the schedule of controlled substances.
Under the Farm Bill, “marijuana is a Schedule I drug only if the plant or any part of the plant has more than 0.3% THC.” See 7 U.S.C. § 1639o(1). By contrast, South Carolina law at the time of Hope’s prior convictions defined marijuana as “all species or variety of the marijuana plant,” and it did not exempt hemp or differentiate marijuana by its THC levels. See S.C. Code Ann. §§ 44-53-110(27)(a) and (b).
The Court concluded that “The South Carolina statute is broader than the federal definition. Thus, we hold that the district court erred in finding Hope’s state offenses qualified as predicate offenses for the ACCA enhancement.”
The Court recognized that its holding conflicts with the decision in United States v. Marshall, 747 F. App’x 139 (4th Cir. 2018), cert denied, 139 S. Ct. 1214 (2019). The Marshall decision, however, preceded the change in the hemp law via the 2018 Farm Bill.
The Court pointed out that the federal Sentencing Guidelines require district courts to use the manual that is “in effect on the date that the defendant is sentenced” unless it would violate Ex Post Facto. See U.S.S.G. § 1B1.11; see also Peugh v. United States, 569 U.S. 530 (2013). Precedent holds that subsequent changes in state law should not be relied upon but that changes in federal law that affect sentencing should be considered. See McNeill v. United States, 133 S. Ct. 2218 (2011); United States v. Bautista, 989 F.3d 698 (9th Cir. 2021).
The Court concluded that South Carolina’s definition for marijuana was broader than the federal definition at the relevant time and is not a categorical match. Thus, the Court held that Hope’s prior state convictions don’t qualify as “a serious drug offense” and do not trigger the ACCA minimum sentence enhancement. The Court said its conclusion would be the same on de novo or plain error in review.
Accordingly, the Court vacated and remanded for a new sentencing hearing. See: United States v. Hope, 28 F.4th 487 (4th Cir. 2022).
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Related legal case
United States v. Hope
|Cite||28 F.4th 487 (4th Cir. 2022)|
|Level||Court of Appeals|
|Appeals Court Edition||F.4th|