United States v. Abdulaziz, 19-2030

• Decision Date: 02 June 2021
• Docket Number: No. 19-2030,19-2030
• Citation: 998 F.3d 519
• Parties: UNITED STATES of America, Appellee, v. Mohamed ABDULAZIZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

998 F.3d 519

UNITED STATES of America, Appellee,

v.Mohamed ABDULAZIZ, Defendant, Appellant.

No. 19-2030

United States Court of Appeals, First Circuit.

June 2, 2021

Michael Tumposky, Boston, MA, with whom Hedges & Tumposky, LLP, was on brief, for appellant.

Christine J. Wichers, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

Before Kayatta and Barron, Circuit Judges, and Smith,^* District Judge.

BARRON, Circuit Judge.

Mohamed Abdulaziz ("Abdulaziz") challenges his five-year prison sentence for committing a federal firearms offense in violation of 18 U.S.C. § 922(g). He contends that the District Court erred in applying the enhancement set forth in § 2K2.1(a)(2) of the United States Sentencing Guidelines to him at his sentencing. That guideline subjects a defendant who has been convicted of a § 922(g) offense to a higher base offense level ("BOL") under the Guidelines if he committed that offense "subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2). The question that we must decide turns on a purely legal question: what constitutes a "controlled substance" within the meaning of this guideline? Because we conclude that the District Court erred in resolving it, we vacate the judgment imposing the sentence and remand the case for further proceedings.

I.

On January 3, 2019, a federal grand jury in the District of Massachusetts indicted Abdulaziz on one count of possession of a firearm and ammunition by a prohibited person in violation of 18 U.S.C. § 922(g)(1). The charged conduct was alleged to have occurred on September 2, 2018. Abdulaziz pleaded guilty to the offense on June 13, 2019.

The United States Probation Office prepared a presentence investigation report ("PSR"). Among other things, the PSR calculated Abdulaziz's Guidelines Sentencing Range ("GSR") for his § 922(g) offense. The PSR based the calculation in part on the application of the § 2K2.1(a)(2) enhancement.

The PSR determined that the enhancement applied based on three state law felony convictions that Abdulaziz had sustained before he committed the § 922(g) offense. The PSR determined that, under the guideline, two of those convictions were of "crime[s] of violence" and one was of "a controlled substance offense." U.S.S.G. § 2K2.1(a)(2).

At the sentencing hearing on September 26, 2019, Abdulaziz did not dispute the PSR's determination that his January 2010 Massachusetts conviction of assault with a dangerous weapon (firearm) in violation of Mass. Gen. Laws ch. 265, § 15B(b) -- which he sustained prior to committing the § 922(g) offense -- qualified under § 2K2.1(a)(2) as a "felony conviction[ ]" of "a crime of violence." The District Court noted at the hearing, however, that the government was "not arguing" that the other conviction that Abdulaziz sustained prior to committing the § 922(g) offense and that the PSR had determined qualified as a "felony conviction[ ]" of "a crime of violence" -- his April 2018 Massachusetts conviction for unarmed assault with intent to rob in violation of Mass. Gen. Laws ch. 265, § 20 -- also qualified as such a "felony conviction[ ]" of "a crime of violence."

Thus, the application of the enhancement turned on whether the third state law felony conviction that Abdulaziz sustained prior to committing the § 922(g) offense and that the PSR had determined was of a qualifying offense -- namely, his July 2014 Massachusetts conviction for possession with intent to distribute "Marihuana," which the underlying state statute defined to be a "controlled substance," Mass. Gen. Laws ch. 94C, §§ 31, Class D(b)(1), 32C(a) (effective July 1, 2014) -- qualified as a "felony conviction[ ]" of "a controlled substance offense" under § 2K2.1(a)(2). For, if it did, then Abdulaziz would have committed the § 922(g) offense "subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2).

The District Court sided with the government and against Abdulaziz by ruling that this July 2014 Massachusetts conviction did so qualify. The District Court accordingly applied the enhancement and determined Abdulaziz's BOL to be 24, rather than either 22 or 20 as it would have been if the enhancement did not apply. See U.S.S.G. § 2K2.1(a)(3)-(4) (providing for a BOL level of either 22 or 20 when the defendant has only one qualifying prior conviction, depending on the nature of the firearm involved in the § 922(g) offense).

The District Court next adjusted Abdulaziz's total offense level downward due to his timely acceptance of responsibility. See U.S.S.G. § 3E1.1(a), (b). After accounting for Abdulaziz's criminal history category, which it determined to be VI, the District Court calculated his GSR to be 77 to 96 months of imprisonment. The District Court at that point determined that Abdulaziz was eligible for a departure pursuant to § 4A1.3(b) of the Guidelines.¹ The departure resulted in a recalculated GSR of 57 to 71 months of imprisonment. The District Court ultimately sentenced Abdulaziz to a sixty-month prison term to be followed by three years of supervised release.

Judgment was entered on September 26, 2019. Abdulaziz timely appealed on October 7, 2019.

II.

Abdulaziz contends that his sentence cannot stand because his July 2014 Massachusetts conviction for possession with intent to distribute "Marihuana," Mass. Gen. Laws ch. 94C, §§ 31, Class D(b)(1), 32C(a) (effective July 1, 2014), does not qualify as a conviction of "a controlled substance offense" under § 2K2.1(a)(2).

Setting aside for the moment the question of what criteria the guideline uses to determine what constitutes what it terms "a controlled substance offense," we note that there is no disagreement between the parties that this guideline requires that we apply the categorical approach to determine whether Abdulaziz's July 2014 Massachusetts conviction was of "a controlled substance offense" within the meaning of § 2K2.1(a)(2). In consequence, we "look only to the elements" of the Massachusetts law offense underlying that conviction and "not to ‘how [Abdulaziz] actually perpetrated the crime to decide if the offense, as defined in the statute, matches [the guideline's] criteria’ for a ‘controlled substance offense.’ " United States v. Capelton, 966 F.3d 1, 6 (1st Cir. 2020) (quoting United States v. García-Cartagena, 953 F.3d 14, 18 (1st Cir. 2020) ).

We also note that there is no disagreement between the parties that, at the time of Abdulaziz's July 2014 conviction for that "Marihuana"-related offense, Massachusetts defined "Marihuana" to include hemp. See Mass. Gen. Laws ch. 94C, § 1 (effective July 1, 2014) (defining "Marihuana" as "all parts of the plant Cannabis sativa L., whether growing or not," except for "the mature stalks of the plant, fiber produced from the stalks, oil, or cake made from the seeds of the plant"). Accordingly, the parties agree that Abdulaziz's July 2014 conviction must be understood to be a conviction for possession with the intent to distribute hemp even though the record does not establish whether Abdulaziz actually perpetrated that crime by possessing that substance. See Moncrieffe v. Holder, 569 U.S. 184, 190-91, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (explaining that under the categorical approach a court is to look to "the least of the acts" criminalized by the statute of conviction (alteration omitted) (quoting Johnson v. United States, 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) )).

With this foundation in place, we have but one question to decide to resolve this appeal: is a conviction of such a hemp-based offense a conviction of "a controlled substance offense" within the meaning of § 2K2.1(a)(2) ? As that question necessarily turns on the proper interpretation of the Guidelines, our review is de novo. See Capelton, 966 F.3d at 5.

A.

"[W]e ordinarily employ the Guidelines in effect at sentencing," rather than the Guidelines in effect either at the time of the defendant's conviction of the offense for which he is being sentenced or at any earlier time. United States v. Rodriguez, 630 F.3d 39, 42 (1st Cir. 2010) (alteration omitted) (quoting United States v. Maldonado, 242 F.3d 1, 5 (1st Cir. 2001) ); see 18 U.S.C. § 3553(a)(4)(A)(ii). We follow that course here, and, indeed, no party asks us to do otherwise. We thus must decide what the term "controlled substance offense" in the § 2K2.1(a)(2) guideline meant as of the time of Abdulaziz's § 922(g) sentencing.

The text of § 2K2.1(a)(2) at that time did not purport to define the term "controlled substance offense," just as it does not purport to do so now. See U.S.S.G. §§ 2K2.1(a)(2). But, it did refer at that time -- as now -- to another guideline, § 4B1.2(b), that did define that term. See id. §§ 2K2.1(a)(2) & cmt. n.1, 4B1.2(b). And, that guideline defined "controlled substance offense" at that time -- as now -- as an "offense" that, among other things, "prohibits the ... possession of [with intent to distribute] a controlled substance." U.S.S.G. § 4B1.2(b) (emphasis added). Moreover, the government agrees with Abdulaziz (given the arguments that it has timely made to us) that a "controlled substance" in § 4B1.2(b) was defined as of that time by reference to whether a substance was either included in or excluded from the drug schedules set forth in the federal Controlled Substances Act ("CSA").² See 21 U.S.C. § 812 ; 21 C.F.R. §§ 1308.11 - 1308.15. Thus, insofar as the CSA's drug schedules were incorporated into the guideline itself at the time of Abdulaziz's § 922(g) sentencing, it would appear that the answer to our question is fairly straightforward: we must look to the version of those drug schedules that were "in effect" at that time, Rodriguez, 630 F.3d at 42, to determine what constituted a "controlled substance," U.S.S.G. § 4B1.2(b), at that time.

To be...