United States v. Brown

• Decision Date: 29 August 2022
• Docket Number: 21-1510
• Citation: 47 F.4th 147
• Parties: UNITED STATES of America v. Justin Rashaad BROWN, Appellant
• Court: U.S. Court of Appeals — Third Circuit

47 F.4th 147

UNITED STATES of America

v.Justin Rashaad BROWN, Appellant

No. 21-1510

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit L.A.R. 34.1a June 17, 2022

Filed: August 29, 2022

Ronald A. Krauss, Quin M. Sorenson, Office of Federal Public Defender, 100 Chestnut Street, Suite 306, Harrisburg, PA 17101, Counsel for Appellant

John C. Gurganus, United States Attorney, Carlo D. Marchioli, Assistant United States Attorney, Office of United States Attorney, Middle District of Pennsylvania, 228 Walnut Street, P.O. Box 11754, 220 Federal Building and Courthouse, Harrisburg, PA 17108, Counsel for Appellee

Before: HARDIMAN, SMITH and FISHER, Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

Justin Rashaad Brown appeals his fifteen-year mandatory minimum sentence under the Armed Career Criminal Act ("ACCA") on the theory that his Pennsylvania marijuana convictions may no longer serve as ACCA predicate offenses following the federal decriminalization of hemp. We hold that, absent contrary statutory language, we look to federal law in effect at the time of commission of the federal offense when employing the categorical approach in the ACCA context. Because the state schedule matched the federal schedule in effect when Brown committed the federal offense triggering the ACCA enhancement, we will affirm his sentence.

I.

In 2016, police officers in York County, Pennsylvania, conducted a series of controlled cocaine buys from Brown. Based on these purchases, the officers obtained a search warrant for Brown's apartment, which they executed on November 16, 2016. Inside the apartment, they discovered cocaine, scales, money, and Brown himself. The officers also found a loaded .38 caliber Ruger LCR revolver tucked under the couch cushion where Brown had been sitting.

Brown was indicted on multiple counts, including being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) on or about the date of the search. Per his agreement with the Government, Brown pleaded guilty to one charge of cocaine possession and distribution as well as the § 922(g) offense in July 2019 before the U.S. District Court for the Middle District of Pennsylvania. The Court sentenced him in 2021. At the time of sentencing, Brown had five prior Pennsylvania convictions for the distribution, or possession with intent to distribute, of controlled substances. One, from 2008, involved cocaine, and the remaining four, spanning from 2009 to 2014, involved marijuana.

Based on these prior convictions, the District Court held the ACCA applicable to Brown, triggering its fifteen-year mandatory minimum. The Court declined to decide whether he was a "career offender" under the U.S. Sentencing Guidelines, U.S.S.G. § 4B1.1, because it had already made the ACCA determination. It sentenced Brown to concurrent terms of 180 months' imprisonment on both counts.

Pursuant to a reservation in his plea agreement, Brown now timely appeals his designation under the ACCA.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231 (offenses against the laws of the United States). We have jurisdiction under 28 U.S.C. § 1291 (appeal from final decision) and 18 U.S.C. § 3742(a) (appeal from sentence). We review de novo Brown's purely legal challenge to his enhanced sentence under the ACCA. See United States v. Torres , 961 F.3d 618, 622 n.2 (3d Cir. 2020).

III.

A.

Persons with prior felony convictions are forbidden from possessing a firearm under 18 U.S.C. § 922(g). United States v. Daniels , 915 F.3d 148, 150 (3d Cir. 2019). The ACCA, in turn, imposes a fifteen-year mandatory minimum sentence on offenders who violate § 922(g) and who have at least three prior federal or state convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). The ACCA defines "serious drug offense" as offenses listed in the Controlled Substances Act, Pub. L. No. 91-513, 84 Stat. 1242 (1970), and as state offenses involving substances on the Federal Schedules of Controlled Substances, 21 U.S.C. § 802, that carry a term of imprisonment of ten years or more. See 18 U.S.C. § 924(e)(2)(A).

Importantly, a state crime may not qualify as a "serious drug offense"—and thus may not serve as an ACCA predicate—if its elements are different from or broader than the generic version of that offense. See United States v. Henderson , 841 F.3d 623, 627 (3d Cir. 2016). Put another way, if the state law governing a particular offense criminalizes more conduct than its generic federal counterpart, then a state conviction for that offense may not count toward the ACCA's requirement of three prior offenses. See Descamps v. United States , 570 U.S. 254, 257–58, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ; Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ("By ‘generic,’ we mean the offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison." (quoting Gonzales v. Duenas–Alvarez , 549 U.S. 183, 186, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) )). This requires courts to compare federal and state law. See United States v. Dahl , 833 F.3d 345, 349, 353 (3d Cir. 2016). When undertaking this comparison, we employ the "categorical approach," which directs us to look solely at the elements of the compared crimes and to ignore the particular facts of a case. Mathis v. United States , 579 U.S. 500, 504, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016).

Brown contends his prior state marijuana convictions may not serve as ACCA predicates because the crime of which he was convicted is no longer a categorical match to its federal counterpart. The Commonwealth's controlled substances statute forbids "the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance." 35 Pa. Stat. Ann. § 780-113(a)(30).¹ A violation involving a controlled substance listed on Pennsylvania's Schedule I, such as marijuana, is a felony punishable by up to fifteen years' imprisonment. Id. §§ 780-113(f), 780-104(1)(iv). According to Brown, the definition of marijuana applicable to Pennsylvania's Schedule I is now broader than under federal law.

Pennsylvania law defines marijuana to consist of "all forms" and "every ... derivative" of the cannabis plant. Id. § 780-102(b). The definition specifies limited exceptions, such as for the plant's "mature stalks" or the "fiber produced from such stalks." Id. For a long time, the federal definition was identical to the Commonwealth's in every material respect. It defined marijuana to mean "all parts" and "every ... derivative" of the cannabis plant. 21 U.S.C. § 802 (effective July 22, 2016, to October 23, 2018). And it contained virtually identical exceptions. See id. (exempting, for instance, "the mature stalks of such plant" and "fiber produced from such stalks").

This changed when Congress passed its most recent farm bill. The Agriculture Improvement Act of 2018, Pub. L. No. 115-334, 132 Stat. 4490, removed "hemp" from the definition of marijuana. 21 U.S.C. § 802(16)(B). As defined by the Act, hemp means "any part" and "all derivatives" of the cannabis plant "with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis." 7 U.S.C. § 1639o (1). The upshot is that federal law now distinguishes between illegal marijuana and legal hemp based on delta-9 THC concentration. See AK Futures LLC v. Boyd St. Distro, LLC , 35 F.4th 682, 690 (9th Cir. 2022) ; Hemp Indus. Ass'n v. Drug Enf't Admin. , 36 F.4th 278, 282 & n.3 (D.C. Cir. 2022). Pennsylvania law continues to make no such distinction.²

This brings us to the question at the center of this case: what is the proper comparison time to determine whether state and federal law are a categorical match? The potential for a categorical mismatch depends on whether we look to federal law before or after the enactment of the Agriculture Improvement Act. The Act went into effect December 20, 2018. So Brown pleaded guilty and was sentenced with the new federal definition of marijuana in place. But the old federal definition was in force when Brown committed the § 922(g) offense in 2016 as well as when he committed and was convicted of his state law offenses. There is no dispute that Brown's prior state convictions would be ACCA predicates without the changes to federal law introduced by the Agriculture Improvement Act. And the Government agrees with Brown that Pennsylvania's definition of marijuana is now broader than its federal counterpart. Consequently, we must resolve this timing question.

B.

What is the right comparison time? Brown, citing several cases interpreting the Sentencing Guidelines, argues we look to the federal schedule at the time of federal sentencing. The Government argues we look to the federal schedule at the time of commission of the federal offense because of the federal saving statute.³ We agree with the Government.

The federal saving statute, Act of Feb. 25, 1871, ch. 71, § 4, 16 Stat. 431, 432, provides that the "repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide." 1 U.S.C. § 109. The statute "has been held to bar application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense." Warden, Lewisburg Penitentiary v. Marrero , 417 U.S. 653, 661, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). It "mandates that a court apply the penalties in place at the time the crime was committed unless [a] new law expressly provides otherwise." United States v. Reevey , 631 F.3d 110, 114 (3d Cir. 2010).

The saving statute controls here because the Agriculture Improvement Act effectively repealed federal penalties associated with federal marijuana convictions. Binding caselaw has given the statutory term "repeal" a capacious meaning that applies...