United States v. Soterio Hope ( 2022 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4420
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SOTERIO LAMAR HOPE,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Rock
Hill. Mary G. Lewis, District Judge. (0:19-cr-00261-MGL-1)
Argued: October 29, 2021 Decided: March 9, 2022
Before GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.
Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in
which Judge Wynn joined. Judge Thacker wrote a dissenting opinion.
ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt,
Maryland, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Jill E.M. HaLevi,
MEDIATION & LEGAL SERVICES, LLC, Charleston, South Carolina, for Appellant.
Nicholas L. McQuaid, Acting Assistant Attorney General, Robert A. Zink, Acting Deputy
Assistant Attorney General, Criminal Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C.; M. Rhett DeHart, Acting United States Attorney,
Kathleen M. Stoughton, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
GREGORY, Chief Judge:
Hope pled guilty to one count of knowingly possessing a firearm and ammunition.
J.A. 36. During sentencing, the United States Probation Office completed a presentence
report (“PSR”) determining that Hope qualified for a mandatory minimum sentence under
the Armed Career Criminal Act (“ACCA”), based on three prior South Carolina
convictions, dated May 22, 2013, for possession of marijuana with intent to distribute in
proximity of a school. J.A. 152. Hope objected, arguing that his prior South Carolina
convictions were not predicate offenses under the ACCA. J.A. 159–60. The district court
overruled Hope’s objection and imposed a minimum sentence of 15-years’ incarceration,
followed by three years of supervised release. J.A. 101–03, 113. Hope now appeals.
We hold that the district court erred in finding that Hope’s prior state convictions
qualified as “serious drug offenses” under the ACCA, and, thus, we vacate and remand for
resentencing.
I.
On February 1, 2018, Soterio Lamar Hope was named in a one-count superseding
indictment in the United States District Court in South Carolina charging him with
knowingly possessing a firearm and ammunition, all of which had been shipped and
transported in interstate and foreign commerce, having previously been convicted of a
felony, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 924(e) (Count One). J.A. 36,
143. On November 19, 2019, Hope pled guilty to Count One of the Superseding
Indictment. J.A. 6, 68. On February 11, 2020, the United States Probation Office
2
completed a PSR, which was subsequently revised on March 23, 2020. J.A. 142. The PSR
noted that Hope qualified for a mandatory minimum of 15-years’ incarceration under the
ACCA, based on three prior South Carolina convictions dated May 22, 2013. J.A. 152;
PSR ¶ 40. This determination resulted in an offense level of 33. J.A. 152. After receiving
credit for acceptance of responsibility, Hope’s total offense level was 30, which would
have resulted in a sentencing guideline range of 135–168 months. J.A. 152; PSR ¶ 55.
During his sentencing hearing on August 12, 2020, Hope objected to the application
of the ACCA by arguing that his prior South Carolina convictions were not predicate
offenses under the ACCA. J.A. 159–60. The district court overruled Hope’s objections
and imposed a mandatory minimum sentence under the ACCA of 180-months’
incarceration. J.A. 154, 101–03, 113. Final judgment was entered on August 13, 2020.
On August 17, 2020, Hope filed a timely notice of appeal to this court.
II.
As an initial matter, there is a question of whether we review de novo or for plain
error. Generally, we review de novo whether a prior conviction qualifies as a “serious drug
offense” under the ACCA because it is a question of law. United States v. Burns-Johnson,
864 F.3d 313, 315 (4th Cir. 2017). Additionally, we review de novo a trial court’s legal
interpretation of the United States Sentencing Guidelines. United States v. Wessells, 936
F.2d 165, 168 (4th Cir. 1991).
Here, the Government alleges that Hope did not object during sentencing to the
determination that his predicate offenses qualified as a “serious drug offense” under the
3
ACCA. Resp. Br. at 6–8. Thus, the Government argues that Hope forfeited his ACCA
claim and that we are limited to plain error review because Hope’s argument on appeal is
“different from his claim in the district court.” Resp. Br. at 6–8. While it is true that claims
not raised at the district court are forfeited and thus, limit appellate review to plain error,
this is not the case here. See, e.g., United States v. White, 836 F.3d 437, 444 (4th Cir. 2016)
(holding that if the defendant did not object at trial, he has forfeited his claim on appeal,
and the reviewing court is limited to plain error); United States v. Chong Lam, 677 F.3d
190, 200 (4th Cir. 2012) (same); United States v. Olano, 113 S. Ct. 1770, 1776, (1993)
(holding that courts may review a forfeited claim for plain error).
We review de novo because Hope properly and timely objected at sentencing that
his prior South Carolina convictions were not serious drug offenses as a matter of law under
the ACCA. J.A. 101, 159–60. 1 Thus, Hope did not forfeit his claim. See Olano, 113 S.
1
Hope objected to the PSR by arguing that:
[H]is South Carolina convictions for Distribute, sell, manufacture, or
possession with intent to distribute a controlled substance statute should not
qualify as predicate convictions for purpose of the Armed Career Criminal
Act. Counsel is aware of United States v. Marshall, which ruled that S.C.
Code section 44-53-445 is a divisible statute and that under the modified
categorical approach, possession with intent to distribute marijuana in the
proximity of a school counts as a predicate conviction for purposes of the
ACCA. 747 F. App’x 139.
However, Mr. Hope pled to a duplicitous indictment in state court. This
creates a due process concern because his state court indictment charged him
with multiple offenses in a single count. As a result, Mr. Hope was not put
on notice of the charge against him and this creates a constitutional infirmity.
Counsel acknowledges the Fourth Circuit’s decision in United States v.
(Continued)
4
Ct. at 1777 (1993) (clarifying that “forfeiture [is] the failure to make the timely assertion
of a right”). Though the dissent argues that Hope “never argued — either in written
objections to the PSR or at sentencing” that his state convictions were not serious drug
offenses under the ACCA, see Dissenting Op. at 35, we find that during sentencing and in
his PSR, Hope’s counsel argued that the South Carolina statute was divisible and that
though the Fourth Circuit previously held that it was a categorical match, this was no longer
true because Congress decriminalized hemp in 2018. Though we understand this could be
a close question and recognize that counsel could have provided a better analysis to guide
the district court, Hope specifically objected to the application of the ACCA on the grounds
that there was no categorical match with his previous state convictions. The district court
understood Hope’s objection and overruled it. 2
Furlow, which concluded that the duplicitous argument raised by Furlow was
a matter for the South Carolina state courts. 928 F.3d 311, fn.15.
J.A. 159 (emphasis added).
2
At sentencing, Hope’s counsel stated: “I believe on— the Marshall Court
forecloses my analysis because the Fourth Circuit have really not published a persuasive
opinion that 445 is divisible modified category approach that applies (sic).” J.A. 101
(emphasis added); Sentencing Tr. 11:10–14. The district court agreed, see Sentencing Tr.
11:15, and overruled Hope’s objection. Counsel then moved on to discuss the second
objection under the duplicitous indictment theory, but also said this objection was
foreclosed:
[S]o I think my position’s (sic) for opposing that, but I made a duplicitous
indictment argument. Basically, what I looked at Mr. Hope’s predicate
convictions under the guidelines, which is the proximity statute, 445. If you
look at the statute, it list—if you look at the indictment, it lists different
elements since it was a divisible statute in one count, Your Honor, but in light
of a furlough petition, which basically when Supreme Court reviewed the
(Continued)
5
Still, the Government would have us believe that Hope’s objection was solely based
on a duplicitous indictment theory. While it is true that counsel also raised an objection
based on the duplicitous indictment theory, counsel first objected on the basis that Hope’s
South Carolina offenses did not qualify as predicate offenses under the ACCA and cited to
United States v. Marshall, 747 F. App’x 139 (4th Cir. 2018), cert. denied, 139 S. Ct. 1214(2019), a case dealing with the same objection and same South Carolina offense at issue
here. 3 We have clarified that for purposes of de novo appellate review, it is sufficient for
counsel to articulate an objection based on multiple theories. See Yee v. City of Escondido,
Cal., 112 S. Ct. 1522, 1532 (1992) (“Once a federal claim is properly presented, a party
can make any argument in support of that claim; parties are not limited to the precise
arguments they made below.”); United States v. Robinson, 744 F.3d 293, 300 (4th Cir.
2014) (holding that although a petitioner did not make the same “precise” argument before
the district court, as he did on appeal, he did “challenge criminal history score, and thus
Curtis decision, which basically held that in cases where somebody is
enhanced in the Armed Career Criminal Act that prior convictions in state
court cannot be attacked. So, Your Honor, I believe I’m foreclosed on
Supreme Court precedent in light of that. But I just wanted to raise those out
of an abundance of caution in case there was something that could have
benefited Mr. Hope on Supreme Court review.
J.A. 101–02; Sentencing Tr. 11:16–12:12.
3
We also note that the Government’s response brief admits that the district court
specifically responded to Hope’s ACCA objection which indicates that the district court
understood Hope’s claim. See Resp. Br. at 15 (stating that “[u]nder the modified
categorical approach, the district court properly concluded that Hope was convicted of
three § 445 marijuana offenses”).
6
preserved his claim”). 4 Though Hope now adds more weight to his argument on appeal,
the district court had an opportunity to evaluate his specific objection that his state
convictions were not predicate offenses for the ACCA enhancement. See J.A. 101–02.
Moreover, this is not a situation where Hope made an argument that was “too general to
alert the district court to the specific [objection].” See United States v. Bennett, 698 F.3d
194, 199 (4th Cir. 2012) (applying plain error review because defendant’s objection below
was “far to general to alert the district court” of the argument that he later raised on appeal.).
Hope is neither raising a new claim nor a new theory. Rather, Hope is adding a finer point
to his objection raised below. See Robinson, 744 F.3d at 300 n.6 (finding that petitioner’s
claim challenging his sentencing guidelines criminal history score was preserved in district
court even though he made a new argument against that score on appeal).
Even if we found that plain error review is appropriate here, the outcome would be
the same as we would correct the district court’s error. See Section III.E. at 32–34.
Recently, in a similar case, we clarified that we may first examine the merits of the appeal
and need not decide whether plain error or de novo review apply if the outcome would be
4
In Robinson, we held that the appellant’s claim challenging his sentencing
guidelines criminal history score was preserved in district court even though he made a
new argument against that score on appeal. Robinson’s PSR recommended a two-point
increase in his score because he was on probation for a marijuana possession conviction at
the time he committed his instant federal drug conspiracy offense. In district court,
Robinson objected to the two-point increase because he was only on probation for one day.
But on appeal, he argued that any increase in points for the marijuana possession was
erroneous because it was relevant conduct for his instant conspiracy offense. Despite these
different arguments, we found that plain error review did not apply because the arguments
were variants of the same claim challenging Robinson’s criminal history score. Id. at 296–
98, 300 n.6.
7
the same. See United States v. Green, 996 F.3d 176, 184 (4th Cir. 2021) (deciding the case
first on the merits and then holding that, “even if plain error review is appropriate – and
not our ordinary de novo review of a ‘crime of violence’ determination[,] . . . we would
correct the district court’s error here and vacate and remand for resentencing”). Still, in
comparison to Green, our instant case is a better candidate for de novo review because
Hope sufficiently raised an objection below to a “reasonable degree of specificity which
[…] adequately apprised the trial court of the true basis of his objection.” United States v.
LeBlanc, 612 F.2d 1012, 1014 (6th Cir. 1980) (internal quotes and citation omitted); see
also Fed. R. Crim. P. 51(b). In Green, for example, the petitioner’s objection to the career
offender enhancement consisted of “one sentence and two footnotes.” Id. at 178. Here,
we need not “parse what may be a fine line between a new ‘claim’ or ‘objection,’ on the
one hand, and a new ‘twist’ on a preserved claim.” Id. (first quoting In re Under Seal, 749
F.3d 276, 287 (4th Cir. 2014); and then quoting United States v. Billups, 536 F.3d 574, 578
(7th Cir. 2008)). Hope raised more than a one-sentence objection because his counsel
objected to the PSR and at sentencing that there was not a categorical match between his
South Carolina offenses and the ACCA and additionally raised the duplicitous indictment
objection, for the stated purpose of preserving appellate review. J.A. 101–02 (“I just
wanted to raise those [objections] out of an abundance of caution in case there was
something that could have benefited Mr. Hope on Supreme Court review.”).
8
III.
A.
The categorical approach requires us to set aside the particulars of Hope’s actions
underlying his convictions and, “focus [] instead on ‘the fact of conviction and the statutory
definition of the prior offense.’” United States v. Dozier, 848 F.3d 180, 183 (4th Cir. 2017)
(quoting United States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013)). Then, we
compare the elements of the state offense with the criteria that the ACCA uses to define “a
serious drug offense.” See Shular v. United States, 140 S. Ct. 779, 780 (2020) (asking
“whether the conviction meets [the relevant] criterion”). “The point of the categorical
inquiry is not to determine whether the defendant’s conduct could support a conviction for
a [predicate offense], but to determine whether the defendant was in fact convicted of a
crime that qualifies as a [predicate offense].” Id. (internal citation omitted); see also
Cabrera–Umanzor, 728 F.3d at 350.
This approach is altered for “divisible” statutes which “list elements in the
alternative [] and thereby define multiple crimes.” Mathis v. United States, 136 S. Ct. 2243,
2249 (2016). As noted by the dissent, to determine whether a statute is divisible and
constitutes separate crimes we may also “consult ‘external sources’ like jury instructions
and charging documents.” Dissenting Op. at 39 (citing United States v. Al-Muwwakkil,
983 F.3d 748, 755–56 (4th Cir. 2020)). If the statute is divisible, then we apply the modified
categorical approach which requires us to consult “a limited class of documents”—
otherwise known as Shepard documents— “to determine what crime, with what elements,
9
a defendant was convicted of.” Id. (citing Shepard v. United States, 125 S. Ct. 1254, 1257–
58 (2005)).
The Supreme Court has cautioned that the modified categorical approach “serves a
limited function” and that Shepard documents may be consulted only where the statute, by
“listing potential offense elements in the alternative, renders opaque which element played
a part in the defendant’s conviction.” Descamps v. United States, 133 S. Ct. 2276, 2283
(2013). “Where the statute defines the offense broadly rather than alternatively, the statute
is not divisible, and the modified categorical approach simply ‘has no role to play.’”
Cabrera–Umanzor, 728 F.3d at 350 (quoting Descamps, 133 S. Ct. at 2285). That is,
“[g]eneral divisibility . . . is not enough” to warrant the application of the modified
categorical approach. Id. at 352. Rather, a statute is divisible “only if at least one of the
categories into which the statute may be divided constitutes, by its elements, a separate
offense.” Id. (citations omitted).
After interpreting the statute and identifying the elements of the predicate offenses,
we consider whether the prior state convictions “qualif[y] as . . . predicate[s],” which is so
“only if [each] statute’s elements are the same as, or narrower than, those of [the relevant
federal definition].” Descamps, 133 S. Ct. at 2281. If on the other hand, the elements of
Hope’s prior state offenses “cover a greater swath of conduct than the elements of the
relevant offense,” those “crime[s] cannot qualify” as predicates under the ACCA. Mathis,
136 S. Ct. at 2251. In other words, if the least culpable conduct falls within the ACCA’s
definition of “a serious drug offense,” then the statute categorically qualifies as a serious
10
drug offense. But if the least culpable conduct falls outside that definition, then the statute
is too broad to qualify.
B.
We begin with the ACCA, which, in relevant part, provides:
In the case of a person who violates section 922(g) of this title and has three
previous convictions by any court referred to in section 922(g)(1) of this title
for a violent felony or a serious drug offense, or both, committed on
occasions different from one another, such person shall be fined under this
title and imprisoned not less than fifteen years, and, notwithstanding any
other provision of law, the court shall not suspend the sentence of, or grant a
probationary sentence to, such person with respect to the conviction under
section 922(g).
18 U.S.C. § 924(e)(1) (emphasis added). The ACCA then defines “a serious drug offense”
as:
(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.),
the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or
chapter 705 of title 46 for which a maximum term of imprisonment of ten
years or more is prescribed by law; or
(ii) 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)),
for which a maximum term of imprisonment of ten years or more is
prescribed by law;
18 U.S.C. § 924(e)(2)(A). The Controlled Substances Act defines a “controlled substance”
as “a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or
V of part B of this subchapter.” 21 U.S.C. § 802(6). At issue here is cannabis or
“marihuana,” which is a Schedule I drug and defined as:
all parts of the plant Cannabis sativa L., whether growing or not; the seeds
thereof; the resin extracted from any part of such plant; and every compound,
11
manufacture, salt, derivative, mixture, or preparation of such plant, its seeds
or resin.
21 U.S.C. § 802(16)(A) (emphasis added). Of note, the 2018 Farm Bill removed hemp
from the federal schedule of controlled substances. See Agriculture Improvement Act of
2018, Pub. L. 115-334, Title XII, § 12619(a), 132 Stat. 5018 (Dec. 20, 2018) (“the 2018
Farm Bill”). Thus, as of December 20, 2018, “marihuana” did not include:
(i) hemp, as defined in section 1639o of Title 7; or
(ii) 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, or cake, or the sterilized seed of such
plant which is incapable of germination.
21 U.S.C. § 802(16)(B). Consequently, hemp was defined as:
the plant Cannabis sativa L. and any part of that plant, including the seeds
thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and
salts of isomers, whether growing or not, with a delta-9
tetrahydrocannabinol [“THC”] concentration of not more than 0.3 percent
on a dry weight basis.
7 U.S.C. § 1639o(1) (emphasis added); Pub. L. 115-334, Title X, § 10113 (adding 7 U.S.C.
§ 1639o). Thus, after the 2018 Farm Bill, not all “marijuana” qualifies as a Schedule I drug
under federal law because marijuana is a Schedule I drug only if the plant or any part of
the plant has more than 0.3 percent THC. Accordingly, a cannabis/marijuana plant with
less than 0.3 percent THC is not a Schedule I controlled substance because it is “hemp.”
C.
Next, we examine the South Carolina statute. On May 22, 2013, Hope pled guilty
to three violations of South Carolina Code § 44-53-445 (“Section 445”), for offenses that
occurred in 2010, 2012, and 2013. See J.A. 146 at ¶ 17; J.A. 147 at ¶ 18; J.A. 148 at ¶ 19;
12
J.A. 149 at ¶ 20. Though not at issue here, Hope was also convicted of Distribution of
Marijuana under § 44-53-370 (“Section 370”). 5
Section 445 penalizes distribution of a controlled substance within a certain
proximity of a school, providing, in relevant part, that:
It is a separate criminal offense for a person to distribute, sell, purchase,
manufacture, or to unlawfully possess with intent to distribute, a controlled
substance while in, on, or within a one-half mile radius of the grounds of a
public or private elementary, middle, or secondary school; a public
playground or park; a public vocational or trade school or technical
educational center; or a public or private college or university.
S.C. Code § 44-53-445(A) (emphasis added). To prove that Hope committed an offense
under § 445, South Carolina had to establish the following: “(1) the defendant had actual
control, or the right to exercise control over the [marijuana]; (2) he knowingly distributed
or delivered the [marijuana]; (3) the substance upon analysis was, in fact, [marijuana]; and
(4) the distribution occurred within a one-half mile radius of the grounds of an elementary,
middle, secondary or vocational school; public playground or park; or college or
university.” Brown v. State, 540 S.E.2d 846, 849 (2001) (emphasis added), overruled on
other grounds by State v. Gentry, 610 S.E.2d 494 (2005) (holding that indictments’ failure
to allege the element of “absence from the scene of the crime” deprived the trial court of
subject matter jurisdiction to hear accessory before the fact charges was not preserved for
review on appeal); see also State v. Watts, 467 S.E.2d 272, 278 (S.C. Ct. App. Feb. 5,
5
The Probation Officer used Hope’s convictions under § 370 for purposes of
qualifying as a “controlled substance” offense pursuant to U.S.S.G. § 2K2.1(a)(2). The
use of Hope’s § 370 offenses as predicate offences is not on appeal.
13
1996). Hope does not contest that South Carolina met its burden to convict him under
§ 445 in 2013.
At issue here, however, is whether South Carolina’s definition of “a controlled
substance,” matches the federal definition of “a serious drug offense” under the ACCA. At
the time of his conviction, South Carolina defined “a controlled substance” as a “drug,
substance, or immediate precursor in Schedules I through V in Sections 44-53-190, 44-53-
210, 44-53-230, 44-53-250, and 44-53-270.” S.C. Code Ann. § 44-53-110(6). Moreover,
South Carolina included marijuana as a Schedule I controlled substance, see § 44-53-
190(D)(11), and defined “marijuana” as:
(i) all species or variety of the marijuana plant and all parts thereof whether
growing or not;
(ii) the seeds of the marijuana plant;
(iii) the resin extracted from any part of the marijuana plant; or
(iv) every compound, manufacture, salt, derivative, mixture, or preparation
of the marijuana plant, marijuana seeds, or marijuana resin.
S.C. Code Ann. § 44-53-110(27)(a) (emphasis added). South Carolina also defined
“marijuana” as not including the mature stalks of the plant (or its derivatives), oil from the
plant, and some authorized uses. See S.C. Code Ann. § 44-53-110 (27)(b). Thus, at the
time of Hope’s state convictions in May 2013, South Carolina defined marijuana as “all
species or variety of the marijuana plant” and did not exempt hemp or differentiate
marijuana by its THC levels. 6
6
In 2014, after Hope’s predicate convictions but before his federal conviction for
felon in possession of a firearm, South Carolina allowed the legal use of “industrial hemp”
which it defined as “all parts and varieties of the plant cannabis sativa, cultivated or
possessed by a licensed grower, whether growing or not, that contain of no more
(Continued)
14
D.
Hope argues that the “controlled substance” element of his South Carolina offense,
under § 445, is broader than the federal definition of “controlled substance” because, after
the 2018 Farm Bill and at the time of his federal sentencing, Congress did not define
marijuana plants or its parts with less than 0.3 percent THC as marijuana, whereas South
Carolina did. See Opening Br. at 9; see also 21 U.S.C.A. § 802(16)(B) (defining “hemp”
as cannabis with less than 0.3 percent THC, which is not a controlled substance). Second,
Hope argues that we should not use the modified approach because § 445 is indivisible as
to drug type. See Opening Br. at 14. We agree.
Since, at the time of Hope’s state convictions, South Carolina defined marijuana as
“all species or variety of the marijuana plant,” and did not exempt hemp or differentiate
marijuana by its THC levels, see S.C. Code Ann. § 44-53-110(27)(a) (2013), and because
at the time of his federal conviction, Congress defined marijuana as not including hemp,
we hold that the South Carolina statute is broader than the federal definition. Thus, we
hold that the district court erred in finding that Hope’s state offenses qualified as predicate
offenses for the ACCA enhancement.
1.
As an initial matter, we have already held that § 445 is divisible as to drug conduct.
See Marshall, 747 F. App’x at 149 (considering whether defendant’s South Carolina
tetrahydrocannabinol concentration than adopted by federal law in the Controlled
Substances Act, 21 U.S.C. 801, et seq.” S.C. Code § 46-55-10(2) (2014).
15
predicate offenses under §§ 370 7 and 445 qualified for purposes of the ACCA and
referencing United States v. Rodriguez-Negrete, 772 F.3d 221, 226–27 (5th Cir. 2014),
which held that Section 370 is divisible); see also Collins v. Pond Creek Mining Co., 468
F.3d 213, 219 (4th Cir. 2006) (explaining that our unpublished decisions are “entitled . . .
to the weight they generate by the persuasiveness of their reasoning”) (internal quotation
marks omitted).
In Marshall, the defendant was charged with three felonies: (1) possession with
intent to distribute marijuana, in violation of 21 U.S.C. § 841; (2) possession of a firearm
in connection with a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (3)
being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g). 747 F.
App’x at 140–41. Marshall was previously convicted in South Carolina of three counts of
§ 445, and of one count of § 370. Id. at 149. At sentencing, the district court determined
that Marshall’s three § 445 predicate offenses qualified under the ACCA. Id. at 142.
Like Hope does here, Marshall at sentencing also argued that his predicate offenses
did not qualify for purposes of the ACCA because §§ 370 and 445 were broader than the
federal offense. 747 F. App’x at 149. Marshall also argued that the modified categorical
approach did not apply. Id. In an unpublished opinion, Judge Keenan wrote for the
majority, holding that although the South Carolina statutes “govern a broader range of
7
Section 370 makes it a crime “to manufacture, distribute, dispense, deliver,
purchase, aid, abet, attempt, or conspire to manufacture, distribute, dispense, deliver, or
purchase, or possess with the intent to manufacture, distribute, dispense, deliver, or
purchase a controlled substance or a controlled substance analogue.” S.C. Code Ann. § 44-
53-370(a)(1).
16
conduct than the ACCA or the career offender guideline by prohibiting the mere ‘purchase’
of narcotics,” the statutes are divisible and subject to the modified categorical approach
because the statutes set forth “alternative elements constituting separate crimes.” Marshall,
747 F. App’x at 149–50 (citing Cabrera-Umanzor, 728 F.3d at 352). In making its
determination, the Marshall court considered “how South Carolina prosecutors charge the
offenses, the elements on which South Carolina juries are instructed, and the manner in
which South Carolina courts treat convictions under these statutes.” Id. at 150 (citing
Descamps, 133 S. Ct. at 2290 (stating that “[a] prosecutor charging a violation of a divisible
statute must generally select the relevant element from its list of alternatives,” and the jury
must find that element unanimously and beyond a reasonable doubt)). 8
8
The Marshall court first considered that South Carolina courts “treat the purchase
of a controlled substance as a crime distinct from possession with intent to distribute under
§ 370. 747 F. App’x at 150 (citing State v. Watson, No. 2013-UP-312, 2013 WL 8538756,
at *2 (S.C. Ct. App. July 3, 2013) (upholding the indictment and jury form listing purchase
and possession with intent to distribute separately)). Second, Marshall noted that South
Carolina “charge[d] one of the listed statutory alternatives in state court indictments.” Id.(citing Carter v. State, 495 S.E.2d 773, 776–77 (S.C. 1998), which stated that the
indictment is captioned “Manufacturing Methamphetamine 44-53-370,” and that “the plain
language of the body of the indictment clearly notifies [the defendant] that he is charged
with manufacturing methamphetamine”). Finally, the Marshall court noted that “South
Carolina juries typically are instructed to find one of the alternative elements listed in the
statute beyond a reasonable doubt.” Id. (citing State v. Gill, 584 S.E.2d 432 (S.C. Ct. App.
June 23, 2003), which listed the elements for “distribution of crack cocaine”). Thus,
Marshall concluded that “§§ 44-53-370 and 445 set forth alternative elements (for drug
conduct), and [], therefore, the statutes are subject to review under the modified categorical
approach.” Id. Then, Marshall applied the modified categorical approach and found that
“the South Carolina offense of possession with intent to distribute also matches the
definition of a “controlled substance offense” under the career offender guideline.” Id. at
151. Thus, possession, distribution, manufacture, and possession with intent to distribute
a controlled substance are alternative elements that correspond to separate crimes under
§ 445.
17
Following Marshall, we have maintained that §§ 445 and 370 are divisible as to
drug conduct. See, e.g., United States v. Coker, 794 F. App’x 341 (4th Cir. 2020) (per
curiam), cert. denied, 141 S. Ct. 175 (2020) (holding that South Carolina Code § 44-53-
375 and § 445 are subject to the modified categorical approach); United States v. Furlow,
928 F.3d 311, 320–22 (4th Cir. 2019) (holding that § 375(B) (2018), which punishes
various methamphetamine and crack cocaine offenses, is divisible and subject to the
modified categorical approach), vacated and remanded on other grounds by Furlow v.
United States, 140 S. Ct. 2824, (2020) (remanding in light of Rehaif v. United States, 139
S. Ct. 2191 (2019)); 9 see also Riley v. South Carolina, 82 F. Supp. 2d 474, 478 (D.S.C.
2000) (holding that a conviction for §§ 375(B) and 445(B)(3) did not violate double
jeopardy because they are not the same offense as the intent of the South Carolina
legislature was for § 445 to impose cumulative penalties on top of § 375).
We note two critical distinctions between Marshall and the case at bar. First, in
Marshall, the defendant was sentenced before the 2018 Farm Bill was signed into law and
thus, the Marshall court used the same modified categorical analysis we do here but found
that there was a match.
9
Unlike § 445, which only lists “controlled substance,” § 44-53-375(B) provides
that any person “who manufactures, distributes, dispenses, delivers, purchases, or
otherwise aids, abets, attempts, or conspires to manufacture, distribute, dispense, deliver,
or purchase, or possess with intent to distribute, dispense, or deliver methamphetamine or
cocaine base” is guilty of a felony. See also United States v. Cheeseboro, 757 F. App’x
224, 227 (4th Cir. 2018) (holding that § 375(b) is divisible); United States v. Sulton, 740
F. App’x 45, 46 (4th Cir. 2018) (same).
18
Second, though the instant case also involves § 445, and, thus, we affirm that it is
divisible as to drug conduct, the parties disagree on whether § 445 is also divisible as to
drug type—a question the Marshall court did not reach. Compare Resp. Br. at 12–15 with
Reply Br. at 7–14. The Government notes that the South Carolina Supreme Court held that
a defendant who was charged with trafficking marijuana and trafficking cocaine, under
§ 44-53-370(e)(1)(b), did not violate double jeopardy because marijuana was a separate
element of a § 370(e) offense. State v. Wilson, 429 S.E.2d 453, 454 (S.C. 1993), abrogated
on other grounds by State v. Easler, 489 S.E.2d 617 (S.C. 1997). But see, United States v.
Barcenas-Yanez, 826 F.3d 752, 757 (4th Cir. 2015) (clarifying that “[o]nly when the law
requires that in order to convict the defendant the jury must unanimously agree that he
committed a particular substantive offense contained within the disjunctively worded
statute are we able to conclude that the statute contains alternative elements and not
alternative means”). Moreover, the Government argues that though the majority in
Marshall primarily examined the elements for § 370, the court noted that the only
difference between §§ 370 and 445 was that § 445 “adds the additional element of engaging
in a drug offense within a certain proximity of a school or public park.” See Marshall, 747
F. App’x at 149. Thus, the Government argues that “[i]t would be illogical to hold that
drug substance is only a means under Section 445 even though Section 370 and 445 are
both divisible by conduct, and [] drug substance is an element of Section 370.” Resp. Br.
at 14. The dissent also agrees with the Government that § 445 is divisible by drug type.
See Dissenting Op. 39–40.
19
On the other hand, Hope argues that § 445 is indivisible as to drug type “on its face,”
see Reply Br. at 7, because the statute requires that the state prove only that the defendant
“distributed, sold, manufactured, or unlawfully possessed with intent to distribute a
‘controlled substance’ knowing he was within proximity of a school,” id. at 8 (emphasis
added).
The South Carolina Supreme Court has not clarified whether § 445 is indivisible as
to drug type. On its face, and unlike drug conduct, § 445 is not divisible as to drug type
because the statute penalizes the “distribut[ion], [sale], purchase, manufacture, or [the]
unlawful[] possess[ion] with intent to distribute, a controlled substance.” (emphasis
added); see Mathis, 136 S. Ct. at 2256 (instructing that to determine divisibility, we begin
by looking to the plain text of the statute to identify alternative elements or punishments);
see also United States v. Allred, 942 F.3d 641, 649 (4th Cir. 2019) (same) The plain
language suggests that while a defendant may be charged for various drug conduct, the
government need only prove that there was “a controlled substance” involved in the
offense. See Schad v. Arizona, 111 S. Ct. 2491, 2506 (1991) (Scalia, J., concurring with
plurality that “it has long been the general rule that when a single crime can be committed
in various ways, jurors need not agree upon the mode of commission.”). Thus, while the
drug conduct (i.e., distribution, sale, purchase, manufacturing, or possession with intent to
distribute) portion of the generic § 445 offense is divisible, the remaining portion of the
20
§ 445 is not because the two remaining elements, i.e., controlled substance and proximity
to a school, are not further divisible. 10
Indeed, the Supreme Court long-ago rejected a fact-approach which would “deny[]
any real distinction between divisible and indivisible statutes extending further than the
generic offense.” Descamps, 111 S. Ct. at 2499. 11 The Court clarified that while lower
courts may “modify the categorical approach to accommodate alternative ‘statutory
definitions,’ [t]hey may not, by pretending that every fact pattern is an ‘implied’ statutory
definition, convert that approach into its opposite.” Id. (quoting Aguila-Montes, 655 F.3d
at 927) (emphasis in original).
10
We note that the Supreme Court has cautioned us on the “erroneous assumption
that any statutory alternatives are ipso facto independent elements defining independent
crimes under state law, and therefore subject to the axiomatic principle that the prosecution
must prove independently every element of the crime.” Schad, 111 S. Ct. at 2499(emphasis in original). Thus, as we do here and as the Marshall court did, rather than
“substitute our own interpretations of state statutes,” we must look to whether the state
court has determined that “certain statutory alternatives are mere means of committing a
single offense” or whether they are, indeed, alternative statutory elements. Id. (emphasis
added). Accordingly, in situations, such as here, where the § 445 does not list statutory
alternatives for “controlled substance” we must proceed with caution so as not to read
alternative statutory elements, and divisibility, where they do not exist.
11
In Descamps, for example, the petitioner was convicted of being a felon in
possession of a firearm. Id. at 254. Like Hope, petitioner Descamps had three prior
convictions, including for violating a California statute, § 459, for burglary which provides
that a “person who enters” certain locations, even lawfully, “with intent to commit grand
or petit larceny or any felony is guilty of burglary.” Id. The district court applied the
ACCA enhancement holding that Descamps’ state offenses were “violent felon[ies]” under
§ 924(e)(2)(B). The Ninth Circuit affirmed by reasoning that because Descamps’ plea
colloquy rested on facts satisfying the elements of the generic burglary offense (i.e., that
he entered unlawfully), his state offense was a match. See United States v. Aguila-Montes
de Oca, 655 F.3d 915, 927 (9th Cir. 2011)). The Supreme Court overturned the Ninth
Circuit’s approach.
21
With respect to our case, § 445 only requires that the state prove that Hope (1)
distributed, sold, purchased, manufactured, or unlawfully possessed with intent to
distribute, (2) a controlled substance, (3) in proximity to a school. Thus, the particular facts
alleged about the kind of controlled substance involved in the offense would not alter the
elements required for the offense and, importantly, would not be evidence that the statute
is further divisible as to drug type. Nijhawan v. Holder, 129 S. Ct. 2294, 2303 (2009)
(modified categorical approach can be used to “determin[e] which statutory phrase
(contained within a statutory provision that covers several different generic crimes)
covered a prior conviction”).
Nevertheless, in addition to the text, and the dissent notes, we may also consult a
limited number of documents such as jury instructions and charging documents to
determine whether a statute is divisible. Mathis, 136 S. Ct at 2249. We begin with Hope’s
charging documents which alleged that he “distribute[d]. . . marijuana, a controlled
substance” in proximity to a school. J.A. 123, 138, 148. The wording of the charging
document indicates that marijuana is a means to satisfy the “controlled substance” element
because it may be modified to account for other facts, or drug types, involved. See
Descamps, 113 S. Ct. at 2291 (clarifying that “every fact pattern” is not a different
offense.). As the Supreme Court instructs, an indivisible statute is one that is a single crime
that may “spell [] out various factual ways,” or “means,” “of committing some component
22
of the offense.” Mathis, 136 S. Ct. at 2249. 12 While Hope’s indictment could have alleged
any number of drug types instead of marijuana, the key element (a controlled substance)
would remain unchanged. As noted by the dissent, the South Carolina pattern jury
instructions “direct the trial court to ‘[i]nsert the applicable controlled substance’ when
giving the instruction for a § 44-53-445 charge.” Dissenting Op. at 40 (quoting Ralph King
Anderson, Jr., Anderson’s South Carolina Requests to Charge – Criminal § 4-15 n.3 (2d
ed. 2012)). This further indicates that the trial court is directed to insert the factual means
by which the defendant violated the “controlled substance” element of the offense. Still,
we recognize that to convict a defendant under § 445, South Carolina must prove that “the
substance upon analysis was, in fact, [the alleged controlled substance].” Brown, 343 S.C.
at 347–48 (emphasis added), overruled on other grounds by Gentry, 363 S.C. 93. Because
the statute only requires that the state prove that Hope possessed a “controlled substance,”
the alleged specific substance only matters to the extent that it is used to prove that it is in
fact a controlled substance.
After examining the external documents, we recognize that the question of whether
§ 445 is divisible as to drug type could be close. Still, we find that the best reading of § 445
12
In Mathis, 136 S. Ct. at 2249, the Supreme Court provided an example of a statute
with alternative means of commission:
[S]uppose a statute requires use of a “deadly weapon” as an element
of a crime and further provides that the use of a “knife, gun, bat, or similar
weapon” would all qualify. Because that kind of list merely specifies diverse
means of satisfying a single element of a single crime . . . a jury need not find
(or a defendant admit) any particular item: A jury could convict even if some
jurors concluded that the defendant used a knife while others concluded he
used a gun, so long as all agreed that the defendant used a “deadly weapon.”
23
is that drug type is a means to commit the crime. We hinge our reading also on the fact
that the South Carolina Supreme Court has clarified that juries do not need to unanimously
agree on the same factual means, so long as they agree that the element of the offense is
met (e.g., a jury need not agree on whether Hope had marijuana or cocaine, so long as they
agree that he had a “controlled substance”). See, e.g., State v. Adams, 845 S.E.2.d 217, 224
(S.C. Ct. App. May 20, 2020) (holding that “[t]here is no ambiguity in the text, which tells
us flatly an element that must be proven is a ‘sexual battery,’ a phrase that is defined
elsewhere in the state code to include alternative acts”). Also, we note that the South
Carolina Supreme Court has not signaled that § 445 is divisible as to drug type which limits
our interpretation of § 445. See Najera-Rodriguez v. Barr, 926 F.3d 343, 356 (7th Cir.
2019), reh’g denied (Aug. 23, 2019) (holding that “[t]o reduce th[e] risk [of incorrectly
interpreting a state statute], we need to insist on clear signals—signals that convince us to
a certainty that the elements are correct and support divisibility before imposing additional
federal consequences for those state convictions”). 13
13
Various sister circuits have held that when neither the plain language nor a state
supreme court clarify whether an element of “controlled substance” is further divisible by
drug type, this is, generally, a signal that it is indivisible as to drug type. See, e.g., Harbin
v. Sessions, 860 F.3d 58, 64–68 (2d Cir. 2017); United States v. Aviles, 938 F.3d 503, 512–
14 (3d Cir. 2019); Alejos-Perez v. Garland, 991 F.3d 642, 652 (5th Cir. 2021) (holding that
a Texas statute that criminalized possession of a substance in “Penalty Group 2-A” was not
divisible); United States v. Garcia, 948 F.3d 789, 794 (7th Cir. 2020); United States v.
Elder, 900 F.3d 491, 502–03 (7th Cir. 2018) (explaining that an Arizona statute that
criminalized conduct related to “dangerous drugs”—a broad category that was defined
elsewhere in the statutes—was not divisible by substance); Najera-Rodriguez v. Barr, 926
F.3d 343, 351–52 (7th Cir. 2019); United States v. Graves, 925 F.3d 1036, 1039–41 (9th
Cir. 2019); United States v. Cantu, 964 F.3d 924, 928–34 (10th Cir. 2020).
24
After concluding that § 445 is indivisible as to drug type, we must determine
whether South Carolina’s definition of “a controlled substance” matches the federal
definition of “controlled substance” for purposes of qualifying as “a serious drug offense”
under the ACCA. Since we previously determined that § 445 is divisible as to drug
conduct, then we still employ the modified categorical approach to compare the South
Carolina controlled substance schedule with the federal schedule. As the government
concedes, see Resp. Br. at 12, the federal drug schedules and South Carolina drug schedules
plainly do not match. Namely, the South Carolina drug Schedule IV lists forty-five drug
substances, see S.C. Code Ann. § 44-53-250, whereas the federal drug Schedule IV only
lists eleven, see 21 U.S.C. § 812. Therefore, in South Carolina, the least culpable conduct
required to violate § 445 would not be criminalized under the federal code. See Shular,
140 S. Ct. at 783 (applying the conduct-method approach to determine whether a state
offense is a “serious drug offense” under the ACCA); see also Moncrieffe v. Holder, 133
S. Ct. 1678, 1684 (2013) (explaining that under the categorical approach a court is to look
to “‘the least of the acts’ criminalized, and then determine whether even those acts are
encompassed by the generic federal offense.”) (quoting Johnson v. United States, 130 S.
Ct. 1265, 1269 (2010))). Accordingly, and as the dissent agrees, there is no match.
2.
Though our categorical analysis could end here, we note that even if § 445 were
divisible by drug type, the modified categorical approach would yield the same outcome:
there is no match.
25
Before moving to compare the federal and state definitions of a “controlled
substance,” we need to clarify which definitions we are using. Here, we will compare the
definition of “marijuana” under federal law at the time of Hope’s sentencing, on August
12, 2020, with South Carolina’s definition of “marijuana” at the time he was sentenced for
his state offenses on May 22, 2013. See United States v. Cornette, 932 F.3d 204, 213 (4th
Cir. 2019) (holding that we must determine whether, at the time of defendant’s conviction
“in 1976, the definition of burglary in the Georgia burglary statute criminalized more
conduct than ACCA generic burglary”).
We, including the dissent, disagree with the Government’s contention that the status
of a prior state conviction under the ACCA is determined by “the [federal] law that applied
at the time of that [state] conviction,” not the time of federal sentencing. Resp. Br. at 16
(citing McNeill v. United States, 133 S. Ct. 2218 (2011)). First, the Sentencing Guidelines
require that a district court use the manual that is “in effect on the date that the defendant
is sentenced,” unless it would violate the Ex Post Facto Clause. See U.S.S.G. § 1B1.11;
see also Peugh v. United States, 133 S. Ct. 2072, 2084 (2013) (holding that the Ex Post
Facto Clause is violated when a change to the Guidelines adopted after the instant offense
was committed results in an increased sentencing range). Here, the Ex Post Facto Clause
does not apply. Second, the Government incorrectly relies on McNeill. In McNeill, the
Supreme Court determined whether the district court should rely on a subsequent change
in state law to determine whether a previous conviction was a serious drug offense under
the ACCA. 131 S. Ct. at 2223 (holding that “[i]t cannot be correct that subsequent changes
26
in state law can erase an earlier conviction for ACCA purposes”). 14 The instant matter
concerns changes to federal law, not state law. As our sister court has noted:
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. Such a view would
prevent amendments to federal criminal law from affecting federal
sentencing and would hamper Congress’ ability to revise federal criminal
law.
United States v. Bautista, 989 F.3d 698, 703 (9th Cir. 2021) 15. Thus, McNeill does not
prohibit us from considering changes to federal law for the purposes of the ACCA.
14
In McNeill, the defendant was convicted of a felon unlawfully in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court determined
that McNeill qualified for ACCA’s sentencing enhancement based, in part, on six prior
North Carolina drug-trafficking convictions. At the time that McNeill committed those
state crimes, they each carried a 10–year maximum sentence, which McNeill received.
However, because the State later reduced the maximum sentence for those offenses to less
than 10 years, McNeill argued that none of his six prior convictions were for “serious drug
offenses” within the meaning of § 924(e)(2)(A)(ii). The district court rejected McNeill’s
request that it look to current state law and held that the ACCA requires courts to conduct
a “backward-looking” inquiry into prior convictions, meaning that courts must “consult the
law that applied at the time of th[ose] conviction[s].” McNeill, 131 S. Ct. at 2222. Both
the Fourth Circuit and Supreme Court affirmed the district court. For further examples,
see Boulanger v. United States, 978 F.3d 24, 30 n.6 (1st Cir. 2020) (“Congress intended
courts to use the ‘historical statute of conviction’ when analyzing ACCA cases, not a
modern, amended version” (quoting McNeill, 131 S. Ct. at 2223)); Rivera v. United States,
716 F.3d 685, 688 (2d Cir. 2013) (“Whether a prior conviction qualifies as a predicate
felony for the ACCA sentencing enhancement is determined by looking to state law
existing at the time of that conviction.”).
15
In a similar case, the Ninth Circuit held that a defendant’s prior Arizona state
court conviction of attempted transportation of marijuana, under a state statute that
criminalized attempted transportation of hemp as well as marijuana, was not a categorical
match with generic federal offense at time of his federal sentencing for the purposes of the
ACCA. Bautista, 989 F.3d at 705.
27
3.
Accordingly, after considering whether South Carolina’s 2013 definition for
“marijuana” matches the February 2020 federal definition for “marijuana,” we, including
the dissent, hold that there is no categorical match.
As detailed above, on August 12, 2020, when Hope was sentenced for felon in
possession of a firearm, Congress defined “marijuana” as “all parts of the plant Cannabis
sativa L,” see 21 U.S.C.A. § 802(16)(A) (emphasis added), except for “hemp,” as defined
in section 1639o of Title 7. 21 U.S.C. § 802(16)(B) (Effective December 21, 2018). Hemp
was defined as “the plant Cannabis sativa L. . . . with a delta-9 tetrahydrocannabinol
concentration of not more than 0.3 percent on a dry weight basis.” 7 U.S.C.A. § 1639o(1)
(emphasis added). In comparison, at the time of Hope’s state convictions, on May 22,
2013, South Carolina defined “marijuana” as “all species or variety of the marijuana plant
and all parts thereof,” and did not carve out any exemption for “hemp” until 2014. S.C.
Code Ann. § 44-53-110(27)(a) (emphasis added).
Even if we did find that § 445 was divisible and used Hope’s state documents to
identify which drug type is associated with his conviction under § 445, our inquiry would
not yield a different outcome. See Mathis, 136 S. Ct. at 2257 (explaining that sentencing
court can take a “peek” at record documents, such as indictment, when “state law fails to
provide clear answers” on divisibility). In all, Hope’s state documents only describe that he
28
was convicted of “marijuana, a controlled substance” as defined by South Carolina Code
§ 44-53-445 in 2013. 16
Thus, because South Carolina’s definition of “marijuana,” as defined in 2013, is
broader than the definition of “marijuana,” as defined by the 2018 Farm Bill in 21 U.S.C.
§ 802, there is no categorical match. That is, South Carolina’s 2013 “marijuana” definition
also criminalized “hemp,” whereas, at the time of his federal sentence, the federal code no
longer criminalized hemp. 17 Accordingly, Hope’s prior state convictions do not meet the
16
For example, Hope was first convicted with Distribution of Marijuana in
Proximity of a Park, occurring on or about November 12, 2010. See J.A. 123. The
indictment described that Hope “distribute[d]. . . marijuana, a controlled substance.” Id.(emphasis added). However, the indictment did not specify the THC level. The PSR also
noted that “according to the York County Sherriff’s Office warrant affidavits, [Hope]
distributed 6 grams of marijuana to another individual.” J.A. 146 (emphasis added).
However, the drug amount is irrelevant for our analysis. Second, Hope was convicted of
Distribution of Marijuana in Proximity of a School or Park, occurring on or about July 2,
2012. See J.A. 149 at ¶ 20. Based on his indictment, Hope “distribut[ed]. . . marijuana, a
controlled substance, within one-half mile radius of the grounds of said schools or parks.”
J.A. 138 (emphasis added). Based on the PSR, “according to York County Sheriff’s Office
warrant affidavits, on July 2, 2012, [Hope] possessed 36.8 grams of marijuana and
packaged in 37 separate bags.” J.A. 147 (emphasis added). Again, the affidavit and
indictment did not provide a THC analysis to show that Hope possessed marijuana with
greater than 0.3 percent THC. Finally, Hope was convicted of “Possession with Intent to
Distribute Marijuana in Proximity of a School,” occurring on or about April 30, 2013. See
J.A. 148 at ¶ 19. Based on the indictment, Hope “posess[ed] with intent to distribute
marijuana.” J.A. 135 (emphasis added).
17
In determining whether a controlled substance qualifies as marijuana, sister
circuits have indicated that “THC tests need not be performed on each plant where
sufficiently reliable testimony identifies the plants as marijuana.” See United States v.
Madkour, 930 F.2d 234, 239 (2d Cir. 1991), cert. denied, 112 S. Ct. 308 (1991); see also
United States v. Coslet, 987 F.2d 1493, 1496 (10th Cir. 1993) (same); United States v.
Northrop, 972 F. Supp. 183, 185 (W.D.N.Y. 1997) (holding that the “presence of THC is
not required for a plant to be considered marihuana under 21 U.S.C. § 802(16)”); United
States v. Malbrough, 922 F.2d 458, 464–65 (8th Cir. 1990) (upholding trial court finding
(Continued)
29
definition of “a serious drug offense,” and, therefore, should not have triggered the ACCA
minimum sentence enhancement.
E.
As noted above, even if we were to adopt plain error review, the outcome would be
the same. 18 An error is plain when it is “‘clear’ or, equivalently, ‘obvious’... under current
law.” Olano, 113 S. Ct. at 1777 (1993) (quoting United States v. Young, 105 S. Ct. 1038,
1047, n.14 (1985)). We have further clarified that an error is plain “if the settled law of
the Supreme Court or this circuit establishes that an error has occurred.” United States v.
Maxwell, 285 F.3d 336, 342 (4th Cir. 2002) (citation omitted). The Supreme Court has
also instructed that irrespective of “whether a legal question was settled or unsettled at the
time of [the district court’s decision], it is enough that an error be ‘plain’ at the time of
of 75 marijuana plants for sentencing purposes, concluding that government count of 100
plants may have been inflated by inclusion of tomato plants), cert. denied, 111 S. Ct. 2907(1991). We have not adopted such a standard and do not need to do so for this case.
18
The Government points to United States v. Crocco, 15 F.4th 20 (1st Cir. 2021),
in which petitioner raised, for the first time in a supplemental brief and after oral argument,
that his prior Virginia convictions for possession of marijuana with intent to distribute, see
Va. Code Ann. § 18.2-247(D) (as amended by 2019 Va. Acts ch. 653), should not qualify
as a “controlled substance” for purposes of the career offender sentencing guideline under
U.S.S.G. § 4B1.2(b) because of the federal legalization of hemp after the 2018 Farm bill.
The Crocco court held that “even putting waiver aside, Crocco cannot establish plain error
due to the myriad unanswered, unbriefed questions described above.” Here, however, the
instant matter is distinguishable from Crocco because Crocco clearly waived his argument
as it was raised after oral argument, and it was not fully briefed. Second, the panel made
its decision on the fact that there were many “unanswered, unbriefed questions” which
made Crocco’s argument unclear and not obvious. The panel did not substantively rule on
the question as a matter of law.
30
appellate consideration” to constitute plain error. Henderson v. United States, 133 S. Ct.
1121, 1127 (2013) (citation and internal grammatical marks omitted).
Here, and as the dissent agrees, there was an error. Still, the dissent departs with us
by holding that the error was not plain because there were unsettled questions of law with
respect to “which version of 21 U.S.C. § 802 the district court should consult when
determining whether a defendant’s prior conviction qualifies as an ACCA ‘serious drug
offense.’” See Dissenting Op. at 43. However, and as detailed above, we have settled that
when employing the categorical approach to determine whether a state offense qualifies as
a predicate offense for ACCA purposes, we conduct a “backward-looking” inquiry that
“consults the [state] law that applied at the time of th[ose] conviction[s].” Cornette, 932
F.3d at 213 (quoting McNeill, 131 S. Ct. at 2222 and then citing Rivera, 716 F.3d at 688
(2d Cir. 2013) (clarifying that “[w]hether a prior conviction qualifies as a predicate felony
for the ACCA sentencing enhancement is determined by looking to state law existing at
the time of that conviction.”)). Indeed, in conducting an ACCA categorical analysis, the
Supreme Court has looked back to the version of the state statute and penalties when the
petitioner was convicted and compared it with the relevant federal provision at the time of
the petitioner’s federal sentencing. See United States v. Rodriquez, 128 S. Ct. 1783, 1786–
87 (2008) (looking back to the 1994 statute to determine whether the statute’s “maximum
term of imprisonment” referenced applicable recidivist enhancements for the purposes of
an ACCA enhancement.). Our approach here is the same. Furthermore, district courts are
instructed to use the federal sentencing manual that is “in effect on the date that the
defendant is sentenced.” 18 U.S.C. § 3553(a)(4)(A)(ii). While the dissent is correct to
31
note that we have not engaged in this specific analysis for 21 U.S.C. § 802, the backward-
looking method to compare the definition of the state offense at the time of the state
conviction with the federal law at the time of federal sentencing for purposes of the ACCA
enhancement is settled law.
Thus, we find that the error was plain because, prior to our review, we had already
clarified how and when to use the modified categorical approach and how to conduct the
backward-looking comparison for the categorical approach. Specifically, we had provided
district courts with guidance on how to apply this approach to the South Carolina statute at
issue. See Marshall, 747 F. App’x at 149. Indeed, the key difference between Hope’s case
today and Marshall is that Hope was sentenced after the 2018 Farm Bill was signed into
law. Though our methodology and reasoning are the same as Marshall, the change to the
federal code yields a different result.
We also find that this error affected Hope’s substantial rights because he was
sentenced to a mandatory of 180-months, or 15-years, of imprisonment under § 924(e)(1).
Without the error, Hope’s advisory guidelines would have been 135-168 months of
imprisonment with a statutory maximum of 10-years. J.A. 154; PSR ¶ 55. Because the
incorrect application of law resulted in an unjustified increased minimum sentence for
Hope, our failure to correct the district court’s error “would result in a miscarriage of justice
or would otherwise seriously affect the fairness, integrity or public reputation of judicial
proceedings.” United States v. Whitfield, 695 F.3d 288, 303 (4th Cir. 2012) (quoting
United States v. Robinson, 627 F.3d 941, 954 (4th Cir. 2010) (internal quotation marks
omitted)); see also Wiborg v. United States, 16 S. Ct. 1127, 1137 (1896) (“although this
32
question was not properly raised, yet if a plain error was committed in a matter so
absolutely vital to defendants, we feel ourselves at liberty to correct it”).
IV.
For these reasons, we conclude that Hope’s predicate state offenses are not a
categorical match under the ACCA and, thus, Hope’s sentence is
VACATED AND REMANDED.
33
THACKER, J., dissenting:
I agree with the majority that the district court erred when it sentenced Appellant
Soterio Lamar Hope (“Appellant”) pursuant to the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e). However, because in my view, we review for plain error, and the
district court’s error was not plain, I would affirm the district court.
I.
As the majority correctly points out, “[w]hether a prior conviction qualifies as a
predicate offense under [ACCA] is a question of statutory construction” that we generally
review de novo. United States v. Baxter, 642 F.3d 475, 476 (4th Cir. 2011). But “[w]hen
a defendant has not properly preserved [that] issue by presenting it to the district court . . .
we review his appellate contention for plain error only.” United States v. Furlow, 928 F.3d
311, 317 (4th Cir. 2019), vacated on other grounds, 140 S. Ct. 2824 (2020) (mem); United
States v. Pendergraph, 388 F.3d 109, 113 (4th Cir. 2004) (“Because this objection was not
raised at sentencing, we review it for plain error.”).
When Appellant objected to the presentence investigation report (“PSR”) in the
district court, he challenged the PSR’s use of his South Carolina Code § 44-53-445
convictions as ACCA predicate offenses. However, Appellant did not argue that these
prior convictions do not qualify as “serious drug offenses,” which is the argument he now
makes on appeal. Instead, he argued that he “pled to a duplicitous indictment in state court”
that “charged him with multiple offenses in a single count” based on our holding in United
States v. Marshall, 747 F. App’x 139 (4th Cir. 2018), that § 44-53-445 “is a divisible
34
statute.” J.A. 159 (sealed). 1 As Appellant conceded before the district court, his
“duplicitous indictment” argument is foreclosed by Daniels v. United States, 532 U.S. 374(2001), and Custis v. United States, 511 U.S. 485 (1994), which preclude a defendant from
challenging at his federal sentencing a prior conviction used to enhance his federal
sentence.
“To preserve an argument on appeal, the defendant must object on the same basis
below as he contends is error on appeal.” United States v. Zayyad, 741 F.3d 452, 459 (4th
Cir. 2014). But, here, Appellant never argued -- either in written objections to the PSR
or at sentencing -- “that his prior South Carolina convictions were not serious drug offenses
as a matter of law under the ACCA.” Ante at 4. He also never argued “that the South
Carolina statute was divisible and that though the Fourth Circuit previously held that it was
a categorical match, this was no longer true because Congress decriminalized hemp in
2018.” Id. at 5. The majority’s assertions to the contrary are at odds with the record in this
case. For that reason, Appellant is not, as the majority concludes, merely “adding a finer
point to his objection raised below.” Id. at 7. Therefore, the governing standard of review
in this appeal is plain error.
Yet, the majority suggests that a defendant may make a new argument in support of
a claim he raised in the district court and still be entitled to de novo review of that claim.
Ante at 6–7. However, unlike the defendant in United States v. Robinson, 744 F.3d 2931
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
35
(4th Cir. 2014) -- which the majority cites in support of its argument -- Appellant does not
merely raise a new argument. Appellant raises an entirely new claim in this appeal.
The defendant in Robinson challenged in the district court a two-point increase to
his criminal history score that resulted from a prior conviction for selling marijuana. 744
F.3d at 297. On appeal, he presented a different argument about why that prior conviction
should not have resulted in the two-point increase. Id. at 300. Even though it had not
addressed that precise argument, the district court in Robinson nonetheless had an
opportunity to evaluate whether the two-point increase to the defendant’s criminal history
score was appropriate and made a specific finding that it was. The same was true in United
States v. Green, 996 F.3d 176 (4th Cir. 2021), which the majority also references and which
relied on Robinson. The defendant in Green objected to his career offender enhancement
in the district court by arguing that his prior conviction was not a “crime of violence”
because the definition of that term in the Sentencing Guidelines was vague. 996 F.3d at
178–79. On appeal, he argued that the elements of his prior conviction did not match the
“crime of violence” definition. See id. at 179–84. Therefore, the defendant in Green
signaled to the district court that it needed to consider whether his prior conviction qualified
as a “crime of violence,” and the district court did so.
Here, though, the district court would likely be blindsided to learn that Appellant’s
“duplicitous indictment” argument -- which, again, Appellant conceded at sentencing was
“foreclosed on Supreme Court precedent,” J.A. 102 -- should have triggered the district
court to explicitly evaluate whether Appellant’s § 44-53-445 convictions qualified as
ACCA serious drug offenses. The majority avers that the United States “admits that the
36
district court specifically responded to [Appellant’s] ACCA objection which indicates that
the district court understood [his] claim.” Ante at 6 n.3 (citing Resp. Br. at 15). This is a
strained reading of the United States’s argument, which is merely an assertion “that
[Appellant] was convicted of three [§ 44-53-445] marijuana offenses.” Resp. Br. at 15. In
any event, the district court only adopted that finding in the PSR because it was
unchallenged.
“The entire purpose of an objection is to alert the district court to the actual basis of
asserted error.” United States v. Bennett, 698 F.3d 194, 199 (4th Cir. 2012). But Appellant
did not raise an objection that would indicate to the district court that it needed to look
more deeply into whether Appellant’s § 44-53-445 convictions met ACCA’s definition of
a “serious drug offense.” Because Appellant did not afford the district court a chance to
correct the error he now claims on appeal that it made, our review should be for plain error.
II.
Turning to the merits of this case, I conclude, like the majority, that the district court
erred by sentencing Appellant to ACCA’s 15-year mandatory minimum. However, I reach
that conclusion in a slightly different way.
A.
ACCA applies to a defendant who is convicted of unlawfully possessing a firearm
in violation of 18 U.S.C. § 922(g) “and has three previous convictions by any court . . . for
a violent felony or a serious drug offense, or both, committed on occasions different from
one another.” 18 U.S.C. § 924(e)(1). As relevant in this case, ACCA defines a “serious
drug offense” as “an offense under State law, involving manufacturing, distributing, or
37
possessing with intent to manufacture or distribute, a controlled substance (as defined in
[21 U.S.C. § 802]), for which a maximum term of imprisonment of ten years or more is
prescribed by law.” Id. § 924(e)(2)(A)(ii).
In order to determine whether a defendant’s prior conviction qualifies as an ACCA
predicate offense, we use the “categorical approach,” which “requires us to analyze only
the elements of the offense in question, rather than the specific means by which the
defendant committed the crime.” United States v. Roof, 10 F.4th 314, 398 (4th Cir. 2021)
(per curiam) (internal quotation marks omitted). When applying the categorical approach
to assess whether a defendant’s prior conviction qualifies as an ACCA “serious drug
offense,” we evaluate whether the elements of the statute serving as the basis for the prior
conviction demonstrate that the prior conviction satisfies the criteria of ACCA’s definition
of a “serious drug offense.” Shular v. United States, 140 S. Ct. 779, 787 (2020).
If the statute the defendant was convicted of violating has a “divisible” structure --
i.e., it “list[s] elements in the alternative, and thereby defines multiple crimes” -- we apply
the “modified categorical approach” instead. Mathis v. United States, 136 S. Ct. 2243,
2249 (2016). “Under that approach, [we] look[] to a limited class of documents (for
example, the indictment, jury instructions, or plea agreement of colloquy) to determine
what crime, with what elements, a defendant was convicted of.” Id. (first citing Shepard
v. United States, 544 U.S. 13, 26 (2005); and then citing Taylor v. United States, 495 U.S.
575, 602 (1990)). Once we have ascertained the elements of that offense, we can then
apply the categorical approach as we would for an indivisible statute.
38
The majority, focusing principally on the statutory text, holds that § 44-53-445 is
not divisible by drug type. Ante at 19–24. But significantly, although we “start with the
text . . . the focal point of the analysis is what the jury must find (or a defendant must admit)
to convict.” United States v. Al-Muwwakkil, 983 F.3d 748, 755 (4th Cir. 2020) (internal
quotation marks omitted). “[O]ffenses are divisible when they consist of alternative
elements through which the offense may be proved.” United States v. Royal, 731 F.3d 333,
341 (4th Cir. 2013) (emphasis in original) (citing Descamps v. United States, 570 U.S. 254,
260 (2013)). The elements of an offense, in contrast to various factual means of violating
a statute, “are factual circumstances of the offense the jury must find ‘unanimously and
beyond a reasonable doubt.’” Omargharib v. Holder, 775 F.3d 192, 198 (4th Cir. 2014).
Therefore, in addition to the statutory text, we consult “external sources” like jury
instructions and charging documents to determine whether the statute includes multiple
crimes or a single crime. Al-Muwwakkil, 983 F.3d at 755–56. To reach our conclusion
that § 44-53-445 is divisible as to offense conduct, we “consider[ed] how South Carolina
prosecutors charge the offenses, the elements on which South Carolina juries are instructed,
and the manner in which South Carolina courts treat convictions under [§ 44-53-445].”
United States v. Marshall, 747 F. App’x 139, 150 (4th Cir. 2018). Those same sources
also indicate that the specific controlled substance involved in the violation of § 44-53-445
is in fact an element of the offense, not a means of commission.
For instance, in State v. Watts, 467 S.E.2d 272, 278 (S.C. Ct. App. 1996), the South
Carolina Court of Appeals implied that the trial court correctly instructed the jury when it
included the particular drug -- in that case, crack cocaine -- among “[t]he essential elements
39
of the offense . . . the State was required to prove.” Indeed, South Carolina’s pattern jury
instructions direct the trial court to “[i]nsert the applicable controlled substance” when
giving the instruction for a § 44-53-445 charge. Ralph King Anderson, Jr., Anderson’s
South Carolina Requests to Charge – Criminal § 4-15 n.3 (2d ed. 2012). And the
indictment in State v. Gill, 584 S.E.2d 432, 435 (S.C. Ct. App. 2003), like the indictments
for Appellant’s § 44-53-445 convictions, charged the defendant not with distributing an
unnamed controlled substance but with distributing a specific drug -- in Gill, crack cocaine.
This is consistent with the way South Carolina state courts have described § 44-53-445
offenses. Brown v. State, 540 S.E.2d 846, 849 (S.C. 2001) (calling crime “distribution of
crack cocaine” and listing “the substance upon analysis was, in fact, crack cocaine” as
element to be proven by State), overruled on other grounds by State v. Gentry, 610 S.E.2d
494 (S.C. 2005); State v. Toliver, 403 S.E.2d 676, 676 (S.C. Ct. App. 1991) (describing
offense as “possession with intent to distribute crack cocaine within close proximity of a
school”).
In short, § 44-53-445 is divisible as to both offense conduct and drug type.
Therefore, we utilize the modified categorical approach to determine whether Appellant’s
convictions fit within ACCA’s definition of a “serious drug offense.”
B.
Applying the modified categorical approach in this case, we must first consult the
universe of permissible documents from the state-court proceedings resulting in
Appellant’s prior convictions in order to ascertain the precise offense set forth in § 44-53-
445 of which he was convicted. Mathis, 136 S. Ct. at 2249 (first citing Shepard, 544 U.S.
40at 26; and then citing Taylor, 495 U.S. at 602). The indictments and sentence sheets 2
indicate that Appellant was convicted of distribution of marijuana in proximity of a school
or park for his November 12, 2010 and July 2, 2012 conduct and with possession with
intent to distribute marijuana in proximity of a school for his April 30, 2013 conduct.
Next, we must decide whether each of those offenses “involve[s] the conduct
specified in” ACCA’s definition of a “serious drug offense.” Shular, 140 S. Ct. at 782. A
prior conviction qualifies as a “serious drug offense” if it is “an offense under State law,
involving manufacturing, distributing, or possessing with intent to manufacture or
distribute, a controlled substance (as defined in [21 U.S.C. § 802]), for which a maximum
term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C.
§ 924(e)(2)(A)(ii). Appellant’s § 44-53-445 convictions are for distribution and possession
with intent to distribute, activity that falls within the scope of the “serious drug offense”
definition. And those convictions carried with them a maximum possible penalty of ten
years in prison. S.C. Code § 44-53-445(D)(1).
As to the “controlled substance” portion of the “serious drug offense” definition, the
majority correctly determines that we must compare the South Carolina drug schedules as
of the date of Appellant’s § 44-53-445 convictions and the federal drug schedules as of the
date of Appellant’s federal sentencing. Ante at 25–27. We consult the state drug schedules
at the time of the defendant’s prior state conviction because “ACCA is concerned with
2
We have previously classified South Carolina sentence sheets as Shepard
documents that can be used in application of the modified categorical approach. E.g.,
United States v. Williams, 997 F.3d 519, 523 (4th Cir. 2021).
41
convictions that have already occurred.” McNeill v. United States, 563 U.S. 816, 820
(2011). To that end, “[w]hether the prior conviction was [a “serious drug offense”] can
only be answered by reference to the law under which the defendant was convicted.” Id.And ACCA is a federal sentencing statute “intended to affect federal sentencing at the time
of a defendant’s federal conviction, not at the time of his prior predicate state convictions,”
so “the predicate status of a state conviction is meant to be determined with reference to
the law existing at the time of the defendant’s § 922(g) federal sentencing.” United States
v. Faust, 869 F.3d 11, 12 (1st Cir. 2017) (Lynch, J., dissenting).
The majority also correctly determines that the definition of marijuana in the South
Carolina drug schedules as of the date of Appellant’s § 44-53-445 convictions is broader
than the federal definition of marijuana as of the date of Appellant’s federal sentencing
because the South Carolina definition includes hemp, while the federal definition expressly
excludes hemp. Id. at 23–25. This discrepancy means that the South Carolina statute is
not a categorical match for the federal statute. As a result, the district court erred in
determining that Appellant’s three prior convictions under § 44-53-445 were ACCA
“serious drug offenses.”
III.
However, the district court’s error was not plain. “There is plain error only when
(1) an error was made; (2) the error is plain; (3) the error affects substantial rights; and (4)
the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Fall, 955 F.3d 363, 373 (4th Cir. 2020) (internal quotation
marks omitted). “An error is plain if it is ‘clear or obvious, rather than subject to reasonable
42
dispute.’” United States v. Johnson, 945 F.3d 174, 179 (4th Cir. 2019) (quoting Puckett v.
United States, 556 U.S. 129, 135 (2009)). Before today, we had not decided which version
of 21 U.S.C. § 802 the district court should consult when determining whether a
defendant’s prior conviction qualifies as an ACCA “serious drug offense.” The majority
holds -- and I agree -- that we look to the version of 21 U.S.C. § 802 in effect at the time
of the defendant’s federal sentencing. Even now, none of our sister circuits has decided
this question. Moreover, their cases addressing which versions of the federal drug
schedules to apply to the federal Sentencing Guidelines and to removability in the
immigration context reach opposing conclusions. 3 And we had not yet decided at the time
of Appellant’s federal sentencing whether § 44-53-445 is divisible by drug substance.
The law on these key issues in this case was thus far from settled at the time of
Appellant’s federal sentencing. Under these circumstances, it cannot be said that the
district court plainly erred by adopting the PSR’s finding that Appellant’s § 44-53-445
3
Three of our sister circuits -- the First, in United States v. Abdulaziz, 998 F.3d 519,
531 (1st Cir. 2021); the Sixth, in United States v. Williams, 850 F. App’x 393, 398 (6th Cir.
2021); and the Ninth, in United States v. Bautista, 989 F.3d 698, 703 (9th Cir. 2021) --
have held that for purposes of determining whether a prior conviction constitutes a
“controlled substance offense” pursuant to U.S.S.G. §§ 4B1.2 and 2K1.2 or a “drug
trafficking offense” pursuant to U.S.S.G. § 2L1.2, the relevant federal controlled substance
schedules are the ones applicable at the time of federal sentencing. By contrast, four of our
sister circuits -- the Second, in Doe v. Sessions, 886 F.3d 203, 208 (2d Cir. 2018); the Third,
in Martinez v. Attorney General, 906 F.3d 281, 287 (3d Cir. 2018); the Ninth, in Medina-
Rodriguez v. Barr, 979 F.3d 738, 749 (9th Cir. 2020); and the Eleventh, in Gordon v.
United States Attorney General, 962 F.3d 1344, 1351 n.4 (11th Cir. 2020) -- have held that
the federal controlled substance schedules in effect at the time of the non-citizen’s prior
conviction constitutes an “aggravated felony” for purposes of removability pursuant to 8
U.S.C. § 1227(a)(2)(A)(iii).
43
convictions were ACCA “serious drug offenses” and sentencing Appellant to ACCA’s 15-
year mandatory minimum sentence. Accordingly, I respectfully dissent.
44