United States v. Bautista

• Decision Date: 26 February 2021
• Docket Number: No. 19-10448,19-10448
• Citation: 989 F.3d 698
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Isaac Daniel BAUTISTA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

989 F.3d 698

UNITED STATES of America, Plaintiff-Appellee,

v.Isaac Daniel BAUTISTA, Defendant-Appellant.

No. 19-10448

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 18, 2020 San Francisco, California

Amended November 23, 2020

Filed December 11, 2020

Decided February 26, 2021

ORDER

The opinion filed November 23, 2020, and previously amended on December 11, 2020, and reported at 982 F.3d 563, is amended, and is replaced by the amended opinion filed with this order.

With the opinion as amended, the panel votes to deny the petition for rehearing, filed by appellee on December 21, 2020 (Dkt. Entry 32). The petition for rehearing is DENIED .

No further petitions for rehearing or rehearing en banc will be entertained.

W. FLETCHER, Circuit Judge:

Isaac Daniel Bautista appeals a sentence imposed following his conviction of possession of ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Bautista contends that the district court erred in applying a recidivist sentencing enhancement based on his prior state conviction for attempted transportation of marijuana under Arizona Revised Statutes § 13-3405(A)(4). He contends that it was not a conviction for a "controlled substance offense" under § 4B1.2(b) of the U.S. Sentencing Guidelines ("Guidelines"). The Arizona statute under which Bautista was convicted included hemp in its definition of marijuana. However, in 2018, before Bautista's federal conviction, Congress amended the Controlled Substances Act to exclude hemp from its definition of a controlled substance. Thus, in 2019, when Bautista was sentenced in this case, the Arizona statute under which he had been convicted was overbroad and that conviction no longer qualified as a "controlled substance offense" under the Guidelines. We reverse and remand for resentencing.

I. Factual and Procedural Background

On May 8, 2018, authorities arrested Bautista on an outstanding warrant for a probation violation. When Bautista was booked into the county jail, authorities discovered a pen in his pocket containing one round of .22 caliber ammunition. Bautista was indicted in federal court for possession of ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). After a two-day trial, the jury returned a verdict of guilty.

Under the Guidelines, Bautista would have normally received a Base Offense Level of 14 for the offense, as he was a prohibited possessor. See U.S.S.G. § 2K2.1(a)(6). But in the Presentencing Investigation Report ("PSR"), the probation officer concluded that Bautista's 2017 state conviction for "Attempted Unlawful Transportation of Marijuana for Sale," in violation of Arizona Revised Statutes § 13-3405(A)(4), qualified as a "controlled substance offense" as defined in § 4B1.2(b). This recidivist enhancement resulted in a six-level increase to a Base Offense Level of 20. See U.S.S.G. § 2K2.1(a)(4)(A).

Bautista objected to the PSR but argued only that the base offense level should be reduced by two levels because he had accepted responsibility under § 3E1.1. He did not object to the PSR's conclusion that his prior state conviction was a "controlled substance offense" under the Guidelines.

At sentencing, on December 10, 2019, the court relied on the PSR's calculation of a Base Offense Level of 20, but it sustained Bautista's objection and reduced the offense level by two levels for acceptance of responsibility. For Bautista's Total Offense Level of 18 and Criminal History Category III, the Guidelines prescribed an advisory range of 33 to 41 months. See U.S.S.G. ch. 5, pt. A. The district court sentenced Bautista to 30 months of imprisonment, three years of supervised release, and a special assessment of $100.

Bautista timely appealed his sentence.

II. Standard of Review

We review for plain error when a defendant fails to object to a sentencing calculation. See United States v. Depue , 912 F.3d 1227, 1232 (9th Cir. 2019) (en banc). Plain error is "(1) error, (2) that is plain, and (3) that affects substantial rights." Johnson v. United States , 520 U.S. 461, 462, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). If these three conditions are met, we may exercise our discretion to notice an error that "seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Ameline , 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc).

An error is plain if it is "contrary to the law at the time of appeal." Id. (quoting Johnson , 520 U.S. at 468, 117 S.Ct. 1544 ). It affects substantial rights if the defendant can "demonstrate a reasonable probability that [he] would have received a different sentence if the district court had not erred." Depue , 912 F.3d at 1234 (quoting United States v. Joseph , 716 F.3d 1273, 1280 (9th Cir. 2013) ). With respect to substantial rights, the Supreme Court has held that, "[w]hen a defendant is sentenced under an incorrect Guidelines range[,] ... the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error." Molina-Martinez v. United States , ––– U.S. ––––, 136 S. Ct. 1338, 1345, 194 L.Ed.2d 444 (2016). Finally, an error in calculating the Guidelines range "will in the ordinary case ... seriously affect the fairness, integrity, or public reputation of judicial proceedings, and thus will warrant relief." Rosales-Mireles v. United States , ––– U.S. ––––, 138 S. Ct. 1897, 1903, 201 L.Ed.2d 376 (2018).

III. Discussion

For a defendant who has violated 18 U.S.C. §§ 922(g)(1) and 924(a)(2), the Guidelines provide for a Base Offense Level of 20 if the offense was committed "subsequent to sustaining one felony conviction of ... a controlled substance offense." U.S.S.G. § 2K2.1(a)(4)(A). A "controlled substance offense" is "an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance ...." U.S.S.G. § 4B1.2(b).

We have interpreted the term "controlled substance" as used in the Guidelines to mean a substance listed in the Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq. See United States v. Leal-Vega , 680 F.3d 1160, 1167 (9th Cir. 2012). As we noted in Leal-Vega , construing the phrase in the Guidelines to refer to the definition of "controlled substance" in the CSA—rather than to the varying definitions of "controlled substance" in the different states—furthers uniform application of federal sentencing law, thus serving the stated goals of both the Guidelines and the categorical approach. Id. at 1166 (citing Taylor v. United States , 495 U.S. 575, 589, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). Our case concerns a different provision of the Guidelines than in Leal-Vega . We are concerned here with the term "controlled substance" in the definition of "controlled substance offense" in § 4B1.2(b) whereas Leal-Vega analyzed the term "controlled substance" in the definition of "drug trafficking offense" in § 2L1.2. But we regard this distinction, and the slight differences in the drafting histories of the two Guideline provisions, as immaterial. The relevant text in the two provisions is identical. And there is no meaningful way to distinguish the uniformity-in-federal-sentencing rationale that we adopted in Leal-Vega , which compels the conclusion that "controlled substance" in § 4B1.2(b) refers to a "controlled substance" as defined in the CSA. Accord United States v. Townsend , 897 F.3d 66, 71 (2d Cir. 2018) ; see also United States v. Gomez-Alvarez , 781 F.3d 787, 794 (5th Cir. 2015) ; United States v. Sanchez-Garcia , 642 F.3d 658, 661–62 (8th Cir. 2011). But see United States v. Ward , 972 F.3d 364, 369–74 (4th Cir. 2020) ; United States v. Ruth , 966 F.3d 642, 651–55 (7th Cir. 2020) ; United States v. Sheffey , 818 F. App'x 513, 519–20 (6th Cir. 2020).

In imposing a sentence, the district court must consider the sentencing guidelines range "that ... [is] in effect on the date the defendant is sentenced." 18 U.S.C. § 3553(a)(4)(A)(ii). The Guidelines provide that a court must 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 , 569 U.S. 530, 544–45, 133 S.Ct. 2072, 186 L.Ed.2d 84 (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). Bautista's case poses no Ex Post Facto concerns because applying federal law at the time of sentencing results in a lower, not higher, sentencing range. Thus, a court must ask whether Bautista's prior crime qualifies as a "controlled substance offense" under the CSA and the corresponding Guideline at the time of sentencing.

Relying on McNeill v. United States , 563 U.S. 816, 131 S.Ct. 2218, 180 L.Ed.2d 35 (2011), the government argues that Bautista's crime must be compared to federal law at the time of the prior state conviction. The government misreads McNeill . At issue in McNeill was a statutory federal sentencing enhancement for a prior state drug conviction where "a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii). The Court held that the relevant term of imprisonment was the term prescribed by state law at the time of the state-law conviction rather than at the time of sentencing for the federal crime. The Court explained that it made little sense to analyze a prior state-law conviction under subsequent state law: "[T]he culpability and dangerousness that [a criminal] history demonstrates[ ]does not cease to exist when a State reformulates its criminal statutes in a way that prevents precise translation of the old conviction into the new statutes." McNeill , 563 U.S. at 823, 131 S.Ct. 2218. The government insists that McNeill requires us to...