United States v. Justin Brown ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-1510
____________
UNITED STATES OF AMERICA
v.
JUSTIN RASHAAD BROWN,
Appellant
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-18-cr-00108-001)
District Judge: Honorable Sylvia H. Rambo
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 17, 2022
Before: HARDIMAN, SMITH and FISHER, Circuit Judges.
(Filed: August 29, 2022)
Ronald A. Krauss
Quin M. Sorenson
Office of Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Counsel for Appellant
John C. Gurganus, United States Attorney
Carlo D. Marchioli, Assistant United States Attorney
Office of United States Attorney
Middle District of Pennsylvania
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee
______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
Justin Rashaad Brown appeals his fifteen-year
mandatory minimum sentence under the Armed Career
Criminal Act (“ACCA”) on the theory that his Pennsylvania
marijuana convictions may no longer serve as ACCA predicate
offenses following the federal decriminalization of hemp. We
hold that, absent contrary statutory language, we look to
federal law in effect at the time of commission of the federal
offense when employing the categorical approach in the
ACCA context. Because the state schedule matched the federal
schedule in effect when Brown committed the federal offense
triggering the ACCA enhancement, we will affirm his
sentence.
2
In 2016, police officers in York County, Pennsylvania,
conducted a series of controlled cocaine buys from Brown.
Based on these purchases, the officers obtained a search
warrant for Brown’s apartment, which they executed on
November 16, 2016. Inside the apartment, they discovered
cocaine, scales, money, and Brown himself. The officers also
found a loaded .38 caliber Ruger LCR revolver tucked under
the couch cushion where Brown had been sitting.
Brown was indicted on multiple counts, including being
a felon in possession of a firearm in violation of 18 U.S.C. §
922(g) on or about the date of the search. Per his agreement
with the Government, Brown pleaded guilty to one charge of
cocaine possession and distribution as well as the § 922(g)
offense in July 2019 before the U.S. District Court for the
Middle District of Pennsylvania. The Court sentenced him in
2021. At the time of sentencing, Brown had five prior
Pennsylvania convictions for the distribution, or possession
with intent to distribute, of controlled substances. One, from
2008, involved cocaine, and the remaining four, spanning from
2009 to 2014, involved marijuana.
Based on these prior convictions, the District Court held
the ACCA applicable to Brown, triggering its fifteen-year
mandatory minimum. The Court declined to decide whether he
was a “career offender” under the U.S. Sentencing Guidelines,
U.S.S.G. § 4B1.1, because it had already made the ACCA
determination. It sentenced Brown to concurrent terms of 180
months’ imprisonment on both counts.
Pursuant to a reservation in his plea agreement, Brown
now timely appeals his designation under the ACCA.
The District Court had jurisdiction under 18 U.S.C. §
3231 (offenses against the laws of the United States). We have
3
jurisdiction under 28 U.S.C. § 1291 (appeal from final
decision) and 18 U.S.C. § 3742(a) (appeal from sentence). We
review de novo Brown’s purely legal challenge to his enhanced
sentence under the ACCA. See United States v. Torres, 961
F.3d 618, 622 n.2 (3d Cir. 2020).
Persons with prior felony convictions are forbidden
from possessing a firearm under 18 U.S.C. § 922(g). United
States v. Daniels, 915 F.3d 148, 150 (3d Cir. 2019). The
ACCA, in turn, imposes a fifteen-year mandatory minimum
sentence on offenders who violate § 922(g) and who have at
least three prior federal or state convictions for violent felonies
or serious drug offenses. 18 U.S.C. § 924(e)(1). The ACCA
defines “serious drug offense” as offenses listed in the
Controlled Substances Act, Pub. L. No. 91-513, 84 Stat. 1242(1970), and as state offenses involving substances on the
Federal Schedules of Controlled Substances, 21 U.S.C. § 802,
that carry a term of imprisonment of ten years or more. See 18
U.S.C. § 924(e)(2)(A).
Importantly, a state crime may not qualify as a “serious
drug offense”—and thus may not serve as an ACCA
predicate—if its elements are different from or broader than
the generic version of that offense. See United States v.
Henderson, 841 F.3d 623, 627 (3d Cir. 2016). Put another way,
if the state law governing a particular offense criminalizes
more conduct than its generic federal counterpart, then a state
conviction for that offense may not count toward the ACCA’s
requirement of three prior offenses. See Descamps v. United
States, 570 U.S. 254, 257–58 (2013); Moncrieffe v. Holder,
569 U.S. 184, 190 (2013) (“By ‘generic,’ we mean the offenses
must be viewed in the abstract, to see whether the state statute
4
shares the nature of the federal offense that serves as a point of
comparison.” (quoting Gonzales v. Duenas–Alvarez, 549 U.S.
183, 186 (2007))). This requires courts to compare federal and
state law. See United States v. Dahl, 833 F.3d 345, 349, 353
(3d Cir. 2016). When undertaking this comparison, we employ
the “categorical approach,” which directs us to look solely at
the elements of the compared crimes and to ignore the
particular facts of a case. Mathis v. United States, 579 U.S. 500,
504 (2016).
Brown contends his prior state marijuana convictions
may not serve as ACCA predicates because the crime of which
he was convicted is no longer a categorical match to its federal
counterpart. The Commonwealth’s controlled substances
statute forbids “the manufacture, delivery, or possession with
intent to manufacture or deliver, a controlled substance.” 35
Pa. Stat. Ann. § 780-113(a)(30).1 A violation involving a
controlled substance listed on Pennsylvania’s Schedule I, such
as marijuana, is a felony punishable by up to fifteen years’
imprisonment. Id. §§ 780-113(f), 780-104(1)(iv). According to
Brown, the definition of marijuana applicable to
Pennsylvania’s Schedule I is now broader than under federal
law.
1
We have previously held Pennsylvania’s drug
possession and distribution offense to be divisible by drug
type, thus requiring the “modified categorical approach.” See
United States v. Abbott, 748 F.3d 154, 158–59 (3d Cir. 2014);
Henderson, 841 F.3d at 625. Today, we need not delve down
the rabbit hole of seeking to determine what crime Brown was
convicted of, see Mathis, 579 U.S. at 505–06 (explaining the
modified categorical approach), because both sides agree his
prior convictions were for marijuana violations.
5
Pennsylvania law defines marijuana to consist of “all
forms” and “every . . . derivative” of the cannabis plant. Id. §
780-102(b). The definition specifies limited exceptions, such
as for the plant’s “mature stalks” or the “fiber produced from
such stalks.” Id. For a long time, the federal definition was
identical to the Commonwealth’s in every material respect. It
defined marijuana to mean “all parts” and “every . . .
derivative” of the cannabis plant. 21 U.S.C. § 802 (effective
July 22, 2016, to October 23, 2018). And it contained virtually
identical exceptions. See id. (exempting, for instance, “the
mature stalks of such plant” and “fiber produced from such
stalks”).
This changed when Congress passed its most recent
farm bill. The Agriculture Improvement Act of 2018, Pub. L.
No. 115-334, 132 Stat. 4490, removed “hemp” from the
definition of marijuana. 21 U.S.C. § 802(16)(B). As defined by
the Act, hemp means “any part” and “all derivatives” of the
cannabis plant “with a delta-9 tetrahydrocannabinol
concentration of not more than 0.3 percent on a dry weight
basis.” 7 U.S.C. § 1639o(1). The upshot is that federal law now
distinguishes between illegal marijuana and legal hemp based
on delta-9 THC concentration. See AK Futures LLC v. Boyd St.
Distro, LLC, 35 F.4th 682, 690 (9th Cir. 2022); Hemp Indus.
Ass’n v. Drug Enf’t Admin., 36 F.4th 278, 282 & n.3 (D.C. Cir.
2022). Pennsylvania law continues to make no such
distinction.2
This brings us to the question at the center of this case:
what is the proper comparison time to determine whether state
2
Pennsylvania has adopted this same definition of
hemp, see 3 Pa. Cons. Stat. § 702, but only in connection with
industrial hemp research, not general possession or
distribution. Id. §§ 701, 703–04.
6
and federal law are a categorical match? The potential for a
categorical mismatch depends on whether we look to federal
law before or after the enactment of the Agriculture
Improvement Act. The Act went into effect December 20,
2018. So Brown pleaded guilty and was sentenced with the
new federal definition of marijuana in place. But the old federal
definition was in force when Brown committed the § 922(g)
offense in 2016 as well as when he committed and was
convicted of his state law offenses. There is no dispute that
Brown’s prior state convictions would be ACCA predicates
without the changes to federal law introduced by the
Agriculture Improvement Act. And the Government agrees
with Brown that Pennsylvania’s definition of marijuana is now
broader than its federal counterpart. Consequently, we must
resolve this timing question.
What is the right comparison time? Brown, citing
several cases interpreting the Sentencing Guidelines, argues
we look to the federal schedule at the time of federal
sentencing. The Government argues we look to the federal
schedule at the time of commission of the federal offense
because of the federal saving statute.3 We agree with the
Government.
3
Before the District Court, the Government did not
invoke the saving statute, and it instead principally argued that
we must look to the federal law in effect at the time of the state
convictions. The Government only suggested in a brief
footnote that the District Court may look to the time of federal
commission. See Spireas v. Comm’r, 886 F.3d 315, 321 (3d
Cir. 2018) (“Whether an argument remains fair game on appeal
is determined by the degree of particularity with which it was
7
The federal saving statute, Act of Feb. 25, 1871, ch. 71,
§ 4, 16 Stat. 431, 432, provides that the “repeal of any statute
shall not have the effect to release or extinguish any penalty,
forfeiture, or liability incurred under such statute, unless the
repealing Act shall so expressly provide.” 1 U.S.C. § 109. The
statute “has been held to bar application of ameliorative
criminal sentencing laws repealing harsher ones in force at the
time of the commission of an offense.” Warden, Lewisburg
Penitentiary v. Marrero, 417 U.S. 653, 661 (1974). It
“mandates that a court apply the penalties in place at the time
the crime was committed unless [a] new law expressly
provides otherwise.” United States v. Reevey, 631 F.3d 110,
114 (3d Cir. 2010).
The saving statute controls here because the Agriculture
Improvement Act effectively repealed federal penalties
associated with federal marijuana convictions. Binding
caselaw has given the statutory term “repeal” a capacious
meaning that applies whenever a later statute indirectly
raised in the trial court . . . , and parties must do so with
exacting specificity.” (internal quotation omitted)).
Nonetheless, we still consider this saving statute argument.
Despite multiple opportunities, Brown has not argued that the
Government waived or forfeited its reliance on the saving
statute. As we have recognized, a “party can waive a waiver
argument.” Freeman v. Pittsburgh Glass Works, LLC, 709 F.3d
240, 250 (3d Cir. 2013). Similarly here, Brown has forfeited
any waiver or forfeiture argument by not filing a reply brief (or
even mentioning such an argument in his letters filed pursuant
to Federal Rule of Appellate Procedure 28(j)). See Barna v. Bd.
of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 146–
47 (3d Cir. 2017) (explaining distinction between waiver and
forfeiture).
8
diminishes the penalties imposed by an older statute. See
Dorsey v. United States, 567 U.S. 260, 272 (2012); United
States v. Jacobs, 919 F.2d 10, 12 (3d Cir. 1990) (holding that
repealed statute that “merely classified offenses” fell within
ambit of the saving statute). Here, the Agriculture
Improvement Act, by changing the definition of marijuana,
indirectly affected penalties associated with prior serious drug
offenses for marijuana convictions. Thus, the Act effected a
“repeal” within the meaning of the saving statute.
Under the saving statute’s default rule, Brown
“incurred” ACCA penalties at the time he violated § 922(g).
“[P]enalties are ‘incurred’ under the older statute when an
offender becomes subject to them, i.e., commits the underlying
conduct that makes the offender liable.” Dorsey, 567 U.S. at
272; see also Marrero, 417 U.S. at 661; Reevey, 631 F.3d at
114. So, when Brown violated § 922(g)—when he possessed a
firearm despite his prior felony convictions—he also
implicated its penalty provisions. This included its fifteen-year
mandatory minimum for offenders with three serious drug
offenses. See 18 U.S.C. § 924(e)(1). If Brown’s prior state
convictions matched federal law at the time he committed the
federal offense, then these convictions subjected him to the
ACCA’s mandatory minimum. Of course, federal statutes may
modify this default rule; therefore, the next question we face is
whether the Agriculture Improvement Act must be applied
retroactively.
A statute may retroactively repeal prior penalties either
“expressly,” 1 U.S.C. § 109, or by “necessary implication.”
Dorsey, 567 U.S. at 274 (quoting Great N. R. Co. v. United
States, 208 U.S. 452, 465 (1908)). Although the saving statute
contemplates only express retroactivity, we must also consider
implied retroactivity because of the longstanding principle that
“one legislature cannot abridge the powers of a succeeding
9
legislature.” Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135
(1810). Thus, one Congress cannot compel a subsequent
Congress to use “magical passwords” when writing and
adopting legislation. Dorsey, 567 U.S. at 274 (quoting
Marcello v. Bonds, 349 U.S. 302, 310 (1955)). We consider
each type of repeal in turn.
Looking for express retroactivity, we are met with
statutory silence. See Agriculture Improvement Act, §§ 10113–
14, 12619, 132 Stat. at 4908–14, 5018. Plainly, the Act does
not expressly make its new definition of marijuana applicable
to offenses completed prior to the Act’s date of enactment.
Whether the statute applies retroactively by “necessary
implication” is a more involved inquiry, but one that still
returns a negative answer. The Supreme Court’s decision in
Dorsey v. United States guides our analysis. 567 U.S. at 272–
73. There, the Court considered whether the ameliorative
sentencing changes introduced by the Fair Sentencing Act of
2010, Pub. L. No. 111–220, 124 Stat. 2372, would extend to
defendants who committed offenses before the date of
enactment. The Court observed that the Sentencing Reform
Act of 1984, Pub. L. No. 98–473, 98 Stat. 1987, set forth a
background principle that courts apply the Guidelines in effect
at the time of sentencing. 567 U.S. at 275. It held Congress was
presumably aware of this principle, which the Fair Sentencing
Act implicitly directed courts to follow. Id. at 275–76
(interpreting language requiring Guidelines changes to occur
“as soon as practicable” to “achieve consistency with . . .
applicable laws,” § 8, 124 stat. at 2374).
Here, by contrast, the Agriculture Improvement Act’s
decriminalization of hemp contains no language directing us,
implicitly or otherwise, to the background principle embodied
in the Sentencing Reform Act. The decriminalization of hemp
does not come until the last section of the Agriculture
10
Improvement Act, which makes conforming changes to the
Controlled Substances Act, but says nothing about sentences,
let alone retroactivity. § 12619, 132 Stat. at 5018. Elsewhere,
the Act makes other programs retroactive, see §§
1401(e)(2)(B), 1431(d)(3), 132 Stat. at 4512–13, 4520,
strongly suggesting the hemp provisions are not similarly
backward-looking. See Salinas v. U.S. R.R. Ret. Bd., 141 S. Ct.
691, 698 (2021). Moreover, Dorsey involved the interpretation
of a statute explicitly related to sentencing. See 567 U.S. at263–70. But the Agriculture Improvement Act is primarily
devoted to agricultural and nutritional policy. See Cong.
Research Serv., IF12047, Farm Bill Primer: What Is the Farm
Bill? (2022). We hesitate to import background presumptions
pertaining to one statutory area when reading a law on a wholly
different subject matter, see Bond v. United States, 572 U.S.
844, 856–58 (2014) (discussing background presumptions),
and we decline to do so now.
Additionally, in Dorsey, not interpreting the Act to
apply retroactively would have created new arbitrary
sentencing disparities. 567 U.S. at 276–78. Here, following
Brown’s proposed approach and applying the law in effect at
the time of federal sentencing (in other words, applying the
changed definition of marijuana retroactively to the time of
conduct) would also create a significant and arbitrary disparity.
Imagine a hypothetical defendant identical in all material
respects to Brown and who committed the same § 922(g)
offense on the same date in 2016, but who pleaded earlier and
was sentenced in 2017. This defendant would receive a higher
sentence than Brown despite both individuals having
committed the same conduct at the same time. As we have long
observed, “[i]f penalties are to differ because of an arbitrarily
selected date, it seems fairer that the severity of the penalty
depend upon the voluntary act of a defendant in choosing the
11
date of his criminal conduct than upon the date of sentencing .
. . .” Reevey, 631 F.3d at 114 (quoting United States v.
Caldwell, 463 F.2d 590, 594 (3d Cir. 1972)); see also United
States v. Jackson, 36 F.4th 1294, 1300 (11th Cir. 2022). Any
line-drawing exercise will create some arbitrariness, but
declining to apply the Act retroactively grounds any disparity
in a defendant’s voluntary conduct.
Because the Agriculture Improvement Act does not
make its new definition of marijuana retroactive either
expressly or by necessary implication, we apply the penalties
in effect at the time the defendant committed the federal
offense. Therefore, for the purpose of the categorical analysis,
we will look to the federal schedule in effect when Brown
violated § 922(g).
As a consequence of our ruling today, we necessarily
reject the approach suggested by Brown, and adopted by at
least one other circuit, which would have us look to the
Sentencing Guidelines to decide the comparison time question
under the ACCA. Rather, our holding aligns with the Eleventh
Circuit, which, on similar facts, also held that courts must look
to the federal law in effect when the defendant committed the
federal offense. See Jackson, 36 F.4th at 1299–300. As the
Eleventh Circuit sensibly reasoned, this rule gives a defendant
notice “not only that his conduct violated federal law, but also
of his potential minimum and maximum penalty for his
violation and whether his prior felony convictions could affect
those penalties.” Id. at 1300.
We part ways with the Fourth Circuit, which, when
faced with the same categorical inquiry in the ACCA context,
held that courts must look to federal law in effect when the
defendant is sentenced federally. See United States v. Hope, 28
12
F.4th 487, 504–05 (4th Cir. 2022). The Fourth Circuit based its
decision on the requirement that federal courts use the version
of the Guidelines “in effect on the date that the defendant is
sentenced.” Id. at 505 (quoting U.S.S.G. § 1B1.11). The federal
sentencing statute likewise mandates use of the Guidelines in
effect at federal sentencing. See 18 U.S.C. § 3553(a)(4)(A)(ii).
But neither Hope nor this case are Guidelines cases. We are
instead faced with a Congressionally prescribed mandatory
minimum sentence under the ACCA, which omits a similar
directive. See id. § 924(e). And as explained above, we detect
nothing in the text of the Agriculture Improvement Act telling
us to import background principles applicable to Guidelines
cases into the ACCA inquiry of whether a prior offense is a
“serious drug offense.” We thus remain bound by the saving
statute and must respectfully disagree with the Fourth Circuit.
For this same reason, Brown’s reliance on several
Guidelines cases is misplaced. See United States v. Abdulaziz,
998 F.3d 519, 521–22 (1st Cir. 2021); United States v.
Bautista, 989 F.3d 698, 701 (9th Cir. 2021); United States v.
Miller, 480 F. Supp. 3d 614, 624 (M.D. Pa. 2020). We take no
view on the correctness of any of these opinions. Instead, we
merely note that longstanding principles of statutory
interpretation allow different results under the Guidelines as
opposed to under the ACCA. See Dorsey, 567 U.S. at 291(Scalia, J., dissenting) (“We may . . . hold[] that [18 U.S.C.] §
3553(a)(4)(A)(ii) applies to Guidelines amendments, and [1
U.S.C.] § 109 to statutory ones.”).
Brown contends our precedent requires us to follow
Guidelines caselaw in ACCA cases. He points to United States
v. Marrero, where we stated that “cases involv[ing] sentencing
enhancements under the . . . ACCA . . . nevertheless bind our
[Guidelines] analysis.” 743 F.3d 389, 394 n.2 (3d Cir. 2014),
abrogated on other grounds by Johnson v. United States, 576
13
U.S. 591 (2015). Even assuming the inverse proposition
follows logically from Marrero, the case does not help Brown.
Marrero observed that “substantial similarity” between an
ACCA and a Guidelines provision—in that case, the since-
invalidated residual clause—may require applying the law
from one area directly to the other. Id. (quoting United States
v. Herrick, 545 F.3d 53, 58 (1st Cir. 2008)). However, this does
not require us to overlook material textual differences between
the ACCA and the Guidelines. Compare 18 U.S.C. § 924(e),
with id. § 3553(a)(4)(A)(ii). We therefore decline to look to the
Guidelines to determine the timing of the ACCA categorical
analysis.
Our decision is not inconsistent with Supreme Court
precedent in McNeill v. United States, 563 U.S. 816 (2011),
and accords with our precedent in Martinez v. Attorney
General, 906 F.3d 281 (3d Cir. 2018). McNeill concerned an
intervening change to state sentencing law. After the defendant
was convicted at the state level, but before he committed his
federal offense, North Carolina reduced the maximum
sentence applicable to the defendant’s prior state offenses to
fewer than ten years. 563 U.S. at 818. The McNeill Court
clarified that to determine whether these prior state offenses
were “serious drug offense[s]” courts must look to the state law
as it existed at the time of the state conviction. Id. at 820; see
also id. at 822 (“[A]bsurd results . . . would follow from
consulting current state law to define a previous offense.”).
Other circuits, though they may disagree on other aspects of
the categorical approach, have uniformly understood McNeill
to prescribe only the time for analyzing the elements of the
state offense. See Jackson, 36 F.4th at 1306; Hope, 28 F.4th at
505; Bautista, 989 F.3d at 703; Abdulaziz, 998 F.3d at 526.
McNeill thus presents no barrier to looking to the time of
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commission of the federal crime to determine the elements of
the federal offense.
In Martinez, we looked to the elements of the federal
offense at the time of the state conviction, but the reasoning of
that case, which arose in the immigration context, compels a
different result under the ACCA. See 906 F.3d at 283–84, 287.
Under the statutory scheme relevant there, noncitizens are
deportable if they have been convicted of a violation “relating
to a controlled substance” under state or federal law. 8 U.S.C.
§ 1227(a)(2)(B)(i). In that context, the state conviction directly
triggers the federal consequence of deportability. See Martinez,
906 F.3d at 283–84; see also Mellouli v. Lynch, 575 U.S. 798,
805 (2015) (“Congress predicated deportation on convictions,
not conduct . . . .” (internal quotation omitted)); Khan v. Att’y
Gen., 979 F.3d 193, 201 (3d Cir. 2020) (“The immigration
consequences of a criminal conviction are typically fixed at the
time of conviction . . . .”). Nonetheless, the Martinez petitioner
argued his state cocaine offense was not a categorical fit with
the analogous federal offense because the federal definition of
cocaine was narrower than the state definition at the time of his
immigration proceeding. 906 F.3d at 287. We disagreed and
concluded instead that the categorical fit was to be evaluated
when federal consequences attached, that is, when the
petitioner was convicted of his state offense. Id. At that time,
the state definition of cocaine and the federal definition “were
identical.” Id. Accordingly, we held that his state conviction
was a qualifying predicate offense that made him removable.
Here, Brown’s argument similarly “depends on the
premise that the present lists control, not the lists in effect when
[federal consequences attached].” Id. But just as in Martinez,
“the categorical approach directs us to compare the schedules
at the time” Brown faced federal consequences for his conduct.
See id. Under the ACCA, this is when Brown violated § 922(g)
15
because the statute’s enhanced penalties are contingent on the
defendant committing a separate federal offense following his
state convictions. See Abdulaziz, 998 F.3d at 531 (describing
difference between criminal sentence enhancement context
and immigration context); Doe v. Sessions, 886 F.3d 203, 208–
09 (2d Cir. 2018) (looking to time of state conviction in
immigration context because it promotes predictability). Thus,
our conclusion in this case is consistent with our reasoning in
Martinez.
***
Having established that we look to the federal schedule
when the defendant committed the federal offense and having
rejected arguments to the contrary, we are left with the final
task of assessing the categorical match between the state and
federal schedules. As previewed, this point is not really in
dispute. Comparing Pennsylvania’s definition of marijuana—
which has remained unchanged at all times relevant to this
appeal—to the federal definition in effect when Brown
committed his § 922(g) offense produces a categorical match.
Brown was therefore properly subject to the ACCA’s enhanced
penalties.
Under the federal saving statute, a defendant incurs
penalties at the time of commission of an offense.
Consequently, we hold that, absent contrary statutory
language, we look to federal law in effect at the time of
commission of the federal offense when using the categorical
approach to determine if prior offenses are ACCA predicates.
When officers found Brown in possession of a firearm in
violation of § 922(g) in 2016, the federal definition of
marijuana was a categorical match to the Pennsylvania
definition. Therefore, we will affirm Brown’s sentence.
16