United States v. Crocco

15 F.4th 20

UNITED STATES of America, Appellee,

v.Joseph CROCCO, Defendant, Appellant.

No. 19-2140

United States Court of Appeals, First Circuit.

September 27, 2021

Joshua L. Gordon, for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee.

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

SMITH, District Judge.

Joseph Crocco challenges his twelve-year sentence for bank robbery. He argues, inter alia, that the District Court erred in treating his prior state-court marijuana conviction as a controlled substance offense under the career-offender provision of the United States Sentencing Guidelines. We affirm.

I. Background

On September 25, 2018, a jury found Crocco guilty of one count of bank robbery in violation of 18 U.S.C. § 2113(a). His lengthy criminal record included a 1995 North Carolina conviction for voluntary manslaughter and a 2012 Virginia conviction for possession of marijuana with intent to distribute. Based on those two convictions, the District Court concluded that Crocco was a career offender under § 4B1.1(a)(3) of the Guidelines. Crocco did not argue that those prior offenses failed to meet the criteria for guideline enhancement. The career-offender designation placed him in criminal history category VI and increased his offense level from twenty-four to thirty-two. Accordingly, the District Court determined that the guideline imprisonment range was 210 to 240 months. The court varied downward, sentencing Crocco to a prison term of 144 months. Without the contested marijuana predicate and career offender designation, the guideline range would have been 77 to 96 months.

II. Discussion

Crocco argues that, for multiple reasons, his Virginia conviction for possession of marijuana with intent to distribute is not a "controlled substance offense" under § 4B1.1(a)(3) of the Guidelines and that the District Court therefore should not have classified him as a career offender. As we outline below, Crocco did not present any of these arguments to the District Court and did not raise some in his opening brief here. While these contentions may have had some purchase had they been timely raised, he establishes neither plain error nor a sufficient reason to excuse waiver.

To determine whether a prior conviction qualifies as a predicate offense, a court applies either the categorical or modified categorical approach. United States v. Mohamed, 920 F.3d 94, 101 (1st Cir. 2019) (citing Mathis v. United States, ––– U.S. ––––, 136 S. Ct. 2243, 2249, 195 L.Ed.2d 604 (2016) ). Neither side points to the modified approach, so we will review and employ the standard protocol. The first step is to identify the applicable definition of the enhancement provision. See Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Then, we compare that enhancement definition to the statute of prior conviction as it existed at the time of that conviction. See United States v. Abdulaziz, 998 F.3d 519, 525 (1st Cir. 2021) (citing McNeill v. United States, 563 U.S. 816, 820, 131 S.Ct. 2218, 180 L.Ed.2d 35 (2011) ). The conviction counts as a predicate offense only if every possible violation of that statute (putting aside truly outlandish hypotheticals) fits within the enhancement definition. See Descamps v. United States, 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (citing Taylor, 495 U.S. at 600, 110 S.Ct. 2143 ).

For example, in United States v. Ellison, 866 F.3d 32, 34 (1st Cir. 2017), the defendant argued that his conviction for bank robbery was not a "crime of violence" under the Guidelines and that he therefore should not have been classified as a career offender. We consulted the Guidelines' applicable enhancement definition, which provided that a "crime of violence" included "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. (quoting U.S.S.G. § 4B1.2(a) (Nov. 1, 2015)). The defendant's statute of conviction prohibited "tak[ing], or attempt[ing] to take, from the person or presence of another[,]" any property "belonging to, or in the care, custody, control, management, or possession of" a banking institution "by force and violence, or by intimidation." Id. at 35 (quoting 18 U.S.C. § 2113(a) ). The defendant argued that, because the statute could be violated through mere intimidation – as opposed to force or violence – it was not a categorical fit. Id. at 35-39. However, we determined that intimidation necessarily involved a threat of bodily harm, and so the statute categorically fit within the Guidelines' applicable definition. Id. at 37-40.

Here, the applicable enhancement definition comes from § 4B1.2(b) of the Guidelines, which provides that a "controlled substance offense" is an offense under a federal or state law that prohibits a number of specific actions involving a "controlled substance" (e.g., manufacture, distribution, possession with intent to distribute, etc.). See U.S.S.G. § 4B1.2(b). The violation must also be punishable by more than a year in prison.¹ Id.

Crocco's arguments concern only the requirement that the offense involve a "controlled substance."² Confusion arises in cases like this one because, unfortunately, § 4B1.2(b) does not define that term. To fill in this gap, several of our sister circuit courts have held that the federal Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., must provide the definition. See United States v. Bautista, 989 F.3d 698, 702 (9th Cir. 2021) ; United States v. Townsend, 897 F.3d 66, 68, 71 (2d Cir. 2018) ; United States v. Gomez-Alvarez, 781 F.3d 787, 793-94 (5th Cir. 2015). Three other circuits have held (after Crocco's sentencing) that, where a prior conviction is handed down in state court, a substance criminalized under that state's laws is a "controlled substance" under the Guidelines, even if absent from the federal CSA. See United States v. Henderson, No. 20-2594, 2021 WL 3817853, at *3-5 (8th Cir. Aug. 27, 2021) ; United States v. Ward, 972 F.3d 364, 371–72 (4th Cir. 2020) ; United States v. Ruth, 966 F.3d 642, 654 (7th Cir. 2020).

This court has not weighed in on this debate and, given the posture of this appeal, will not do so now. However, as this scenario (and others) will doubtless arise in the future, some additional discussion may be helpful.

The federal-CSA approach advanced by the Second, Fifth, and Ninth Circuits refers to the federal drug schedule to determine if a substance is a "controlled substance." Because we are interpreting the federal sentencing guidelines and utilizing the categorical approach (a creation of federal case law), this federally based approach is appealing. Had this approach been argued to the District Court, it likely would have been utilized given that the Fourth, Seventh, and Eighth Circuits' diverging holdings had not yet been issued at the time of Crocco's sentencing. And, for reasons discussed below, the District Court may have determined that Crocco's marijuana conviction was not a categorical match under the federal CSA.

The competing approach endorsed by the Fourth, Seventh, and Eighth Circuits looks to state law to supply the definition of "controlled substance," but this approach is fraught with peril. For example, which version of state law should supply the definition of the predicate offense: the version in effect at the time of the instant federal sentencing, the one in force at the time of the previous state-court conviction, or another version?³ Of course, federal courts cannot blindly accept anything that a state names or treats as a controlled substance. Such an approach would "turn[ ] the categorical approach on its head by defining [a controlled substance offense] as whatever is illegal under the particular law of the State where the defendant was convicted." Esquivel-Quintana v. Sessions, ––– U.S. ––––, 137 S. Ct. 1562, 1570, 198 L.Ed.2d 22 (2017) (considering generic definition of sexual abuse of a minor). For this reason, perhaps, the Fourth and Seventh Circuits each consulted a dictionary to circumscribe the term. See Ruth, 966 F.3d at 654 (defining controlled substance as "any of a category of behavior-altering or addictive drugs, such as heroin or cocaine, whose possession and use are restricted by law" (quoting Controlled Substance, The Random House Dictionary of the English Language (2d ed. 1987))); Ward, 972 F.3d at 371 (defining controlled substance as "any type of drug whose manufacture, possession, and use is regulated by law" (emphasis omitted)(quoting Controlled Substance, Black's Law Dictionary 417 (11th ed. 2019))). But these dictionary definitions beg the question because they rely on the substance being "regulated" or "restricted" by law. Even the choice of dictionary can matter. For example, Merriam-Webster defines a controlled substance to be "a drug that requires permission from a doctor to use." See Controlled Substance, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/controlled%20substance. Under this seemingly reasonable definition, a defendant could argue that none of the Schedule I drugs –- such as heroin and ecstasy –- should be considered controlled substances because none can be prescribed by a doctor under federal law. See 21 U.S.C. § 829 (authorizing prescriptions for drugs on Schedule II, III, IV, and V only); 21 C.F.R. § 1308.11 (listing Schedule I drugs). As Chief Judge Gregory noted in his concurring opinion in Ward, "[w]hereas the categorical approach was intended to prevent inconsistencies based on state definitions of crimes, the majority's approach creates them." 972 F.3d at 383–84 (citing Taylor, 495 U.S. at 588, 110 S.Ct. 2143 ).

And finally, there is the question of whether a prior state conviction for a substance (such as...