United States v. Lewis

• Decision Date: 26 January 2023
• Docket Number: 21-2621
• Citation: 58 F.4th 764
• Parties: UNITED STATES of America, Appellant v. Jamar M. LEWIS
• Court: U.S. Court of Appeals — Third Circuit

58 F.4th 764

UNITED STATES of America, Appellant

v.Jamar M. LEWIS

No. 21-2621

United States Court of Appeals, Third Circuit.

Argued on September 6, 2022

Filed: January 26, 2023

Rachael A. Honig, Philip R. Sellinger, Mark E. Coyne, Richard J. Ramsay [Argued], Office of United States Attorney, 970 Broad Street, Room 700, Newark, NJ 07102, Counsel for Appellant

Neal K. Katyal, Sean M. Marotta, Danielle D. Stempel [Argued], Hogan Lovells US, 555 Thirteenth Street, N.W., Columbia Square, Washington, DC 20004, Lisa Van Hoeck, Office of Federal Public Defender, 22 South Clinton Avenue, Station Plaza #4, 4th Floor, Trenton, NJ 08609, Counsel for Defendant-Appellee

Davina T. Chen, National Sentencing Resource Counsel, Federal Public & Community Defenders, 321 East Second Street, Los Angeles, CA 90012, Counsel for Amici American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Delaware, America Civil Liberties Union Foundation of New Jersey, American Civil Liberties Union Foundation of Pennsylvania, and National Association of Criminal Defense Lawyers, in support of Defendant-Appellee

Sarah H. Concannon, Quinn Emanuel Urquhart & Sullivan, 1300 I Street, N.W., Suite 900, Washington, DC 20005, Counsel for Amicus National Association for Public Defense, in support of Defendant-Appellee

Before: JORDAN, HARDIMAN, and MATEY, Circuit Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

This appeal requires us to decide whether Jamar Lewis's 2012 conviction for possession with intent to distribute marijuana in violation of N.J. Stat. Ann. § 2C:35-5 is a "controlled substance offense" under § 2K2.1(a)(4)(A) of the United States Sentencing Guidelines. We hold that it is.

I

In July 2020, Lewis pleaded guilty in the United States District Court for the District of New Jersey to unlawful possession of a firearm in violation of 18 U.S.C. § 922(g). That crime normally carries a base offense level of 14, but it increases to 20 for a defendant convicted of a prior "controlled substance offense." U.S.S.G. § 2K2.1(a)(4)(A). A "controlled substance offense" is defined by the Guidelines as

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 (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(b) ; see U.S.S.G. § 2K2.1 cmt. n.1 (stating that the § 4B1.2(b) definition governs § 2K2.1 ). The Guidelines do not separately define "controlled substance" as used in the definition of "controlled substance offense." See U.S.S.G. § 4B1.2(b). The Probation Office's Presentence Investigation Report applied the § 2K2.1(a)(4)(A) enhancement because of Lewis's 2012 New Jersey state conviction for possession with intent to distribute marijuana in violation of N.J. Stat. Ann. § 2C:35-5.

Lewis challenged the enhancement, arguing that only a conviction for certain conduct related to a federally regulated substance—that is, a substance listed in the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq. —qualifies as a "controlled substance offense." And because the CSA at the time of Lewis's federal sentencing defined marijuana more narrowly than did New Jersey law at the time of his state conviction, Lewis argued his prior state conviction did not qualify as a predicate offense.

Lewis's arguments hinged on a change in the marijuana regulatory scheme. In 2018, Congress amended the CSA's definition of "marihuana" to exclude hemp—a low-THC version of cannabis with a variety of industrial and medicinal purposes. See Agriculture Improvement Act of 2018, Pub. L. No. 115-334, § 12619, 132 Stat. 4490, 5018; 21 U.S.C. § 802(16)(B)(i). In 2019, the New Jersey legislature followed suit, removing regulated hemp from its definition of marijuana. N.J. Stat. Ann. §§ 2C:35-2, 4:28-6 et seq. So the state law under which Lewis was convicted was broader than the federal CSA (and state law) at the time of his federal sentencing. Citing this discrepancy and relying on the categorical approach, Lewis argued that his prior state conviction did not qualify as a predicate "controlled substance offense" under Guidelines § 2K2.1(a)(4)(A). The Government responded that substances regulated by state law are controlled substances under the Guidelines, even if they are not regulated by federal law. On that view, New Jersey's regulation of hemp at the time of Lewis's prior conviction justified the enhancement.

The District Court agreed with Lewis. United States v. Lewis , 2021 WL 3508810 (D.N.J. Aug. 10, 2021). The Court found Lewis's base offense level was 14, his total offense level was 12 (after deducting two levels for acceptance of responsibility), his criminal history category was VI, and his applicable Guidelines range was 30 to 37 months' imprisonment. Id. at *2. The District Court varied upward, sentencing Lewis to 42 months. Id. The Government timely appealed.

II

The District Court had federal question jurisdiction under 18 U.S.C. § 3231. Our jurisdiction lies under 18 U.S.C. § 3742(b). We review de novo the District Court's interpretation of the Guidelines. United States v. Nasir , 17 F.4th 459, 468 (3d Cir. 2021) (en banc).

III

A

The categorical approach dictates whether a prior conviction qualifies as a predicate offense that triggers a Guidelines enhancement. See United States v. Williams , 898 F.3d 323, 333 (3d Cir. 2018). That constrains us to consider only "the statutory definition[ ] of [Lewis's] prior offense[ ], and not the particular facts underlying [that] conviction[ ]." See Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).¹

In the typical application of the categorical approach, we would ask whether the elements of the state crime "match the elements" of the corresponding federal or generic crime.

Mathis v. United States , 579 U.S. 500, 504, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Not so in this case, however, because Guidelines § 4B1.2(b) defines a "controlled substance offense" by reference to certain prohibited conduct, not by reference to a federal criminal statute or a "generic" crime like burglary. See Shular v. United States , ––– U.S. ––––, 140 S. Ct. 779, 783, 206 L.Ed.2d 81 (2020). So we must "determine not whether the prior conviction was for a certain offense, but whether the conviction meets some other criterion." Id. at 783 ; see id. at 784–87 (applying this approach to the substantially similar definition of "serious drug offense" under 18 U.S.C. § 924(e)(2)(A)(ii) ). In other words, there is no federal or generic offense to "match" (or not) the elements of the state offense. See United States v. Portanova , 961 F.3d 252, 256–58 (3d Cir.) (employing a "looser categorical approach" to define possession of child pornography that did not "require a precise match between the federal generic offense and state offense elements"), cert. denied , ––– U.S. ––––, 141 S. Ct. 683, 208 L.Ed.2d 288 (2020).

The "other criterion" to which we must compare the elements of Lewis's prior conviction, Shular , 140 S. Ct. at 783, comes directly from the Guidelines definition of controlled substance offense in § 4B1.2(b). That definition contains three parts: (1) "an offense under federal or state law," (2) "punishable by imprisonment for a term exceeding one year," (3) that "prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance," or possession with the intent to do so. U.S.S.G. § 4B1.2(b). Lewis does not dispute that his conviction for possession with intent to distribute marijuana is (1) an offense under state law (2) punishable by the requisite maximum sentence. See N.J. Stat. Ann. §§ 2C:35-5(b)(11), 2C:43-6. Our decision turns then on whether the state law under which he was convicted categorically "prohibit[ed] ... the possession of a controlled substance ... with intent to ... distribute." U.S.S.G. § 4B1.2(b) (emphasis added). More specifically, the question is whether marijuana, as defined by the New Jersey law under which Lewis was convicted, is a "controlled substance" as used in the § 4B1.2(b) definition of "controlled substance offense."

B

We begin by asking whether the meaning of "controlled substance" within § 4B1.2(b)'s definition of "controlled substance offense" is limited to drugs regulated by the federal CSA. The courts of appeals have answered the question differently.

The Second and Ninth Circuits have held that the meaning of "controlled substance" is limited to drugs regulated by the CSA. United States v. Townsend , 897 F.3d 66, 74–75 (2d Cir. 2018) ; United States v. Bautista , 989 F.3d 698, 702 (9th Cir. 2021). The First and Fifth Circuits have endorsed this federal-law-only approach in dicta or in analogous contexts, but have yet to resolve the question conclusively. United States v. Crocco , 15 F.4th 20, 23–25 (1st Cir. 2021) (describing the federal-law approach as "appealing" and the state-or-federal-law approach as "fraught with peril"); United States v. Gomez-Alvarez , 781 F.3d 787, 793–94 (5th Cir. 2015) (adopting a federal-law approach to define "controlled substance" within the definition of "drug trafficking offense" in U.S.S.G. § 2L1.2(b)(1)(A)(i) ).

Contrary to that view, the Fourth, Seventh, Eighth, and Tenth Circuits have held that drugs regulated by state (but not federal) law are still controlled substances in this context. United States v. Ward , 972 F.3d 364, 372–74 (4th Cir. 2020) ; United States v. Ruth , 966 F.3d 642, 651–54 (7th Cir. 2020) ; United States v. Henderson , 11 F.4th 713, 717–19 (8th Cir. 2021) ; United States v. Jones , 15 F.4th 1288, 1291–96 (10th Cir. 2021). We agree with those courts and hold that a "controlled substance" within the § 4B1.2(b) definition of "controlled substance offense" is one regulated by either federal or state law.

The...