United States v. Jamar Lewis ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 21-2621
____________
UNITED STATES OF AMERICA,
Appellant
v.
JAMAR M. LEWIS
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-20-cr-00583-001)
District Judge: Honorable Freda L. Wolfson, Chief District
Judge
____________
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 Civil
2
Liberties 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 Association for Public
Defense, in support of Defendant-Appellee
___________
OPINION OF THE COURT
____________
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 N.J. Stat. Ann. § 2C:35-5
is a “controlled substance offense” under § 2K2.1(a)(4)(A) of
the United States Sentencing Guidelines. We hold that it is.
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 18 U.S.C. § 922(g). That
crime normally carries a base offense level of 14, but it
increases to 20 for a defendant convicted of a prior “controlled
3
substance offense.” U.S.S.G. § 2K2.1(a)(4)(A). A “controlled
substance offense” is defined by the Guidelines 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); see U.S.S.G. § 2K2.1 cmt. n.1 (stating
that the § 4B1.2(b) definition governs § 2K2.1). The
Guidelines do not separately define “controlled substance” as
used in the definition of “controlled substance offense.” See
U.S.S.G. § 4B1.2(b). The Probation Office’s Presentence
Investigation Report applied the § 2K2.1(a)(4)(A)
enhancement because of Lewis’s 2012 New Jersey state
conviction for possession with intent to distribute marijuana in
violation of N.J. Stat. Ann. § 2C:35-5.
Lewis challenged the enhancement, arguing that only a
conviction for certain conduct related to a federally regulated
substance—that is, a substance listed in the Controlled
Substances Act (CSA), 21 U.S.C. § 801 et seq.—qualifies as a
“controlled substance offense.” And because the CSA at the
time of Lewis’s federal sentencing defined marijuana more
narrowly than did New Jersey law at the time of his state
conviction, Lewis argued his prior state conviction did not
qualify as a predicate offense.
4
Lewis’s arguments hinged 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; 21 U.S.C.
§ 802(16)(B)(i). In 2019, the New Jersey legislature followed
suit, removing regulated hemp from its definition of marijuana.
N.J. Stat. Ann. §§ 2C:35-2, 4:28-6 et seq. So the state law under
which Lewis was convicted was broader than the federal CSA
(and state law) at the time of his federal sentencing. Citing this
discrepancy and relying on the categorical approach, Lewis
argued that his prior state conviction did not qualify as a
predicate “controlled substance offense” under Guidelines
§ 2K2.1(a)(4)(A). The Government responded that substances
regulated by state law are controlled substances under the
Guidelines, even if they are not regulated by federal law. On
that view, New Jersey’s regulation of hemp at the time of
Lewis’s prior conviction justified the enhancement.
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 18 U.S.C. § 3231. Our jurisdiction lies under 18 U.S.C.
5
§ 3742(b). We review de novo the District Court’s
interpretation of the Guidelines. United States v. Nasir, 17
F.4th 459, 468 (3d Cir. 2021) (en banc).
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 § 4B1.2(b) defines a
“controlled substance offense” by reference to certain
prohibited conduct, not by reference to a federal criminal
statute or a “generic” crime like burglary. See Shular v. United
States, 140 S. Ct. 779, 783 (2020). So we must “determine not
whether the prior conviction was for a certain offense, but
whether the conviction meets some other criterion.” Id. at 783;
1
Nothing in the record suggests Lewis’s state conviction was
for possession with intent to distribute hemp rather than a still-
controlled class of cannabis. But this is irrelevant under the
categorical approach—“[t]he elements, not the facts, are key.”
United States v. Dahl, 833 F.3d 345, 350 (3d Cir. 2016).
6
see id. at 784–87 (applying this approach to the substantially
similar definition of “serious drug offense” under 18 U.S.C.
§ 924(e)(2)(A)(ii)). In other words, there is no federal or
generic offense to “match” (or not) the elements of the state
offense. See United States v. Portanova, 961 F.3d 252, 256–58
(3d Cir.) (employing a “looser categorical approach” to define
possession of child pornography that did not “require a precise
match between the federal generic offense and state offense
elements”), cert. denied, 141 S. Ct. 683 (2020).
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 Guidelines definition of controlled
substance offense in § 4B1.2(b). That definition contains three
parts: (1) “an offense under federal or state law,” (2)
“punishable by imprisonment for a term exceeding one year,”
(3) that “prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance,” or
possession with the intent to do so. U.S.S.G. § 4B1.2(b). Lewis
does not dispute that his conviction for possession with intent
to distribute marijuana is (1) an offense under state law (2)
punishable by the requisite maximum sentence. See N.J. Stat.
Ann. §§ 2C:35-5(b)(11), 2C:43-6. Our decision turns then on
whether the state law under which he was convicted
categorically “prohibit[ed] . . . the possession of a controlled
substance . . . with intent to . . . distribute.” U.S.S.G.
§ 4B1.2(b) (emphasis added). More specifically, the question
is whether marijuana, as defined by the New Jersey law under
which Lewis was convicted, is a “controlled substance” as used
in the § 4B1.2(b) definition of “controlled substance offense.”
7
B
We begin by asking whether the meaning of “controlled
substance” within § 4B1.2(b)’s definition of “controlled
substance offense” is limited to drugs regulated by the federal
CSA. The courts of appeals have answered the question
differently.
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-federal-
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 U.S.S.G.
§ 2L1.2(b)(1)(A)(i)).
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 § 4B1.2(b) definition of
“controlled substance offense” is one regulated by either
federal or state law.
8
The 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 definition
of “controlled substance offense” in Guidelines § 4B1.2(b)
explicitly includes offenses “under federal or state law”
(emphasis added). Since state law can define the offense, it
follows that it can also define what drugs are controlled
substances. So a “controlled substance” under § 4B1.2(b) is
one regulated under state or federal law.
The federal-law-only approach reads into § 4B1.2(b) a
cross-reference to the CSA that isn’t there. That Guideline does
not define a “controlled substance offense” as one that
prohibits certain conduct involving a “controlled substance as
defined by 21 U.S.C. § 802.” Tellingly, the Guidelines often
do cross-reference the United States Code in that way. For
example, the same Guideline that defines “controlled
substance offense” defines “crime of violence” as “the use or
unlawful possession of a firearm described in 26 U.S.C.
§ 5845(a) or explosive material as defined in 18 U.S.C.
§ 841(c).” U.S.S.G. § 4B1.2(a)(2); see also U.S.S.G. § 2D1.1
cmt. n.4 (“The statute and guideline also apply to ‘counterfeit’
substances, which are defined in 21 U.S.C. § 802 to mean
controlled substances that are falsely labeled so as to appear to
have been legitimately manufactured or distributed.”); cf. 18
9
U.S.C. § 924(e)(2)(A)(ii) (defining “serious drug offense” as
“an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or
distribute, a controlled substance (as defined in section 102 of
the Controlled Substances Act (21 U.S.C. 802))”). Unlike
those examples, the Sentencing Commission did not cross-
reference the CSA in defining “controlled substance offense”
in § 4B1.2(b). Cf. Portanova, 961 F.3d at 257 (“Congress has
demonstrated a command of limiting language that strictly
refers only to conduct criminalized under federal law, and it
could have employed it here if it so intended.”).
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 contrary.”
United States v. Pray, 373 F.3d 358, 362 (3d Cir. 2004)
(citation omitted). In this case, the § 4B1.2(b) definition of
“controlled substance offense” expressly references state law.
And the second part of the definition—that the offense is
“punishable by imprisonment for a term exceeding one year,”
U.S.S.G. § 4B1.2(b)—is “dependent on state law” when the
predicate offense is a state crime. See Pray, 373 F.3d at 362.
State law determines whether its crimes are punishable by over
one year in prison, and maximum sentences for certain crimes
vary from state to state. See, e.g., McNeill v. United States, 563
U.S. 816, 820 (2011). Because one portion of the definition
contemplates state-law discrepancies, we see no reason to
10
apply the presumption against state law to another portion of
that same definition.
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 approach 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 U.S.S.G. ch. 1, pt. A, intro. cmt. 1.3; Bautista,
989 F.3d at 702. We acknowledge that our approach would
treat differently two § 922(g) offenders who had previously
trafficked hemp—one in a state where it was criminalized and
another in a state where it was legal. But the federal-law-only
approach would do likewise. A § 922(g) offender previously
convicted of trafficking marijuana in a state where the federal
and state drug schedules matched would be subject to an
enhancement. But a defendant previously convicted for
trafficking that same class of marijuana criminalized by federal
law in a state that criminalized hemp (unlike federal law)
would not be. Either way, uniformity is unattainable. 2
2
There is also good reason for the purported discrepancy
created by our decision between the hypothetical hemp dealer
in a state that did not criminalize hemp and the one in a state
that did. Some culpability attaches to trafficking a controlled
substance because the state criminalizes it. And recidivist
11
Fourth, the commentary to § 4B1.2, which lists a
handful of federal crimes as examples of “controlled substance
offenses,” does not dictate a federal-law-only approach. See
U.S.S.G. § 4B1.2 cmt. n.1. But see Ward, 972 F.3d at 382–83
(Gregory, C.J., concurring in the judgment). The examples
include no state offenses even though many of them qualify as
predicate offenses. And the commentary provides no run-of-
the-mill examples. Instead, it tries to clarify borderline cases
about what types of criminal conduct related to drug trafficking
qualify as predicate offenses, such as possessing a listed
chemical or prohibited equipment with intent to manufacture a
controlled substance; maintaining a place for purpose of
facilitating a drug offense; and using a communication facility
in committing, causing, or facilitating a drug offense. U.S.S.G.
§ 4B1.2 cmt. n.1. So the commentary says nothing about which
state-law drug offenses, or which state-regulated drugs,
qualify.
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 meaning of
“controlled substance” is not so grievously ambiguous or
uncertain as to implicate the rule of lenity.
enhancements, like § 2K2.1(a)(4)(A), are designed to increase
sentences for defendants with a history of breaking the law.
Even if the conduct were identical, one hypothetical hemp
dealer would be a lawbreaker, while the other would not be.
12
To sum up, a “controlled substance” under § 4B1.2(b)
of the United States Sentencing Guidelines is a drug regulated
by either state or federal law. It is therefore irrelevant that the
New Jersey statute under which Lewis was convicted defined
“marijuana” more broadly than federal law.
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
§ 2K2.1(a)(4)(A) enhancement to apply. Does the date of the
predicate state conviction apply or do we look to the date of
federal sentencing? New Jersey removed regulated hemp from
the definition of marijuana after Lewis’s drug conviction but
before his federal sentencing on the § 922(g)(1) offense. See
N.J. Stat. Ann. §§ 2C:35-2, 4:28-6 et seq. Citing that change in
the law, Lewis claims his prior conviction did not involve a
“controlled substance,” even as defined by New Jersey law. 3
This question too has divided the courts of appeals. The
First, Second, and Ninth Circuits have concluded that courts
3
Although we address this timing question based on New
Jersey’s marijuana amendments, the issue would have been
decisive under federal law because the CSA regulated hemp at
the time of Lewis’s predicate conviction, but not at the time of
his federal sentencing. That said, the timing question is
relevant based on our holding that state law applies only
because the Government expressly waived the argument that if
the CSA controls, the Court should look to the federal drug
schedules at the time of the predicate conviction. See Lewis,
2021 WL 3508810, at *10 n.11.
13
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 time-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 previous conviction was
for a serious drug offense under the Armed Career Criminal
Act. McNeill, 562 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 the
ACCA.” United States v. Brown, 47 F.4th 147, 154 (3d Cir.
2022). But its reasoning is persuasive. As the Sixth Circuit
14
explained when addressing the same timing question presented
here:
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
intervening 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 enhancement. Doing so would
15
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 adopted 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.
U.S.S.G. § 1B1.11; see Abdulaziz, 998 F.3d at 523; Bautista,
989 F.3d at 703; see also 18 U.S.C. § 3553(a)(4). We adhere
to that obligation as well. But the District Court’s duty to apply
16
the Guidelines as they existed at the time of Lewis’s federal
sentencing sheds no light on what the applicable Guideline
means by “controlled substance.” Answering that question
does not refer the sentencing judge to the then-current state
drug schedules.
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, murder). 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-
17
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 here.
See id. at 151–52 (citing 1 U.S.C. § 109). Moreover, a “serious
drug offense” under ACCA is defined as a CSA offense or a
state-law offense involving a controlled substance as defined
by the CSA. 18 U.S.C. § 924(e)(2)(A). When a predicate
offense is defined by explicit cross-reference to the CSA
(unlike here), it makes sense that amendments to federal drug
schedules implicitly amend the corresponding Guidelines or
statutory penalty provision.
IV
The meaning of “controlled substance” as used in
Guidelines § 4B1.2(b)’s definition of “controlled substance
offense” includes drugs regulated by state law at the time of
the predicate state conviction, even if they are not federally
regulated or are no longer regulated by the state at the time of
the federal sentencing. Marijuana, including hemp, was
regulated by New Jersey law at the time of Lewis’s predicate
state conviction, so the District Court erred in declining to
apply the § 2K2.1(a)(4)(A) enhancement. We will vacate the
District Court’s judgment of sentence and remand for
resentencing consistent with this opinion.
18