United States v. Lewis

UNITED STATES OF AMERICA, v. JAMAR M. LEWIS, Defendant.

Crim. No. 20-583 (FLW)

United States District Court, D. New Jersey

August 10, 2021

NOT FOR PUBLICATION

OPINION

Freda L. Wolfson U.S. Chief District Judge

After Defendant Jamar Lewis (“Defendant”) pleaded guilty to a one-count indictment charging him with unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), this Court held a hearing and sentenced Defendant to a term of imprisonment of 42 months an upward variance of the Guidelines range resulting from his total offense level of 12. As part of Defendant's sentence, I found that Defendant was not subject to a sentencing enhancement for firearms offenses under United States Sentencing Guideline (“U.S.S.G.”) § 2K2.1(a)(4)(A), concluding that his prior conviction under New Jersey state law for third-degree possession with intent to distribute marijuana did not qualify as a “controlled substance offense” under the Sentencing Guidelines. During the hearing, I reserved the right to supplement my oral ruling by written opinion. This Opinion serves to supplement my findings on that issue.

I. BACKGROUND

On July 14, 2020, Defendant pleaded guilty to one-count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The U.S. Probation Office calculated an advisory sentencing range of 51 to 63 months, based on a total offense level of 17 and Defendant's criminal history category of VI. In calculating Defendant's offense level, the Probation Office applied a base-level sentencing enhancement under U.S.S.G. § 2K2.1(a)(4)(A) for firearms offenses predicated on Defendant's 2012 New Jersey state conviction for third-degree possession with intent to distribute marijuana.^[1]

Following the submission of the Presentence Report, defense counsel advised the Government that Defendant wished to challenge the Probation Office's offense level calculation on the basis that his 2012 marijuana conviction does not qualify as a controlled substance offense under the Guidelines, contrary to the parties' stipulation in the plea agreement dated January 14, 2020. On May 4, 2021, Defendant and the Government entered into a sentencing agreement in which the parties agreed that Defendant, notwithstanding the stipulations in the plea agreement, could make such an argument without breaching the plea agreement.

On June 2, 2021, the Government submitted a memorandum in support of its position that Defendant's prior state court conviction qualifies as a controlled substance offense under U.S.S.G. § 2K2.1(a)(4)(A).^[2] On June 16, 2021, Defendant submitted a letter brief outlining his position as to the sentence to be imposed and objecting to the Probation Office's Guidelines calculation. The parties' arguments-in their briefing and at sentencing-focused on whether Defendant's prior state court marijuana conviction was a “controlled substance offense” under U.S.S.G. § 2K2.1(a)(4)(A), which assigns a base offense level of 20 if “the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.” The Government argues that this enhancement applies based on Defendant's prior conviction of possession with intent to distribute marijuana under N.J.S.A. § 2C:35-5. Defendant, on the other hand argues that the enhancement is not appropriate because “the applicable New Jersey statute criminalized more conduct that the current federal [Controlled Substances Act (“CSA”)]” and, accordingly, his 2012 marijuana conviction cannot qualify as a predicate offense under U.S.S.G. § 2K2.1(a)(4)(A). Notably, at the time of Defendant's 2012 conviction, New Jersey criminalized hemp, which is now excluded from the federal definition of marijuana.^[3] Compare N.J.S.A. 2C:35-2 (effective March 12, 2003 to November 20, 2018) with Agriculture Improvement Act of 2018, Public Law No. 115-334, 132 Stat 4490 (the “2018 Farm Bill”).

At sentencing, I determined that Defendant's prior conviction for possession with intent to distribute marijuana was not a “controlled substance offense, ” and thus Defendant's base offense level was 14. Taking into account the two-point adjustment for acceptance of responsibility, Defendant's total offense level was 12, which together with his criminal history score, yielded a corresponding Guidelines range of 30 to 37 months. I imposed a sentence of 42 months, an upwards variance of the advisory Guidelines range for that offense level.

II. LEGAL STANDARD

This Court has jurisdiction pursuant to 18 U.S.C. § 3231. See United States v. Chapman, 866 F.3d 129, 131 (3d Cir. 2017). “In sentencing a defendant, district courts follow a three-step process: At step one, the court calculates the applicable Guideline range, which includes the application of any sentencing enhancements.” United States v. Wright, 642 F.3d 148, 152 (3d Cir. 2011). “At step two, the court considers any motions for departure and, if granted, states how the departure affects the Guidelines calculation. Id. “At step three, the court considers the recommended Guidelines range together with the statutory factors listed in 18 U.S.C. § 3553(a) and determines the appropriate sentence, which may vary upward or downward from the range suggested by the Guidelines.” Id. In calculating the Guidelines sentence, the Third Circuit has “explained that, ‘[a]s before [United States v. Booker, 543 U.S. 220 (2005)], the standard of proof under the Guidelines for sentencing facts continues to be preponderance of the evidence.'” United States v. Ali, 508 F.3d 136, 143 (3d Cir. 2007) (first alteration in original) (citation omitted). The Government bears the burden of demonstrating that a sentence should be calculated by using a higher base offense level. United States v. Howard, 599 F.3d 269, 271-72 (3d Cir. 2010). The present dispute concerns the applicable Guidelines range at step one, such that the Government bears the burden of demonstrating, by a preponderance of evidence, that Defendant's prior conviction triggers the sentencing enhancement in U.S.S.G. § 2K2.1(a)(4)(A).

III.DISCUSSION

According to the Government, Plaintiff's prior state conviction for third-degree possession with intent to distribute marijuana should qualify as a “controlled substance offense” under U.S.S.G. § 2K2.1(a)(4)(A). For the purpose of that section, “controlled substance offense” has the meaning given to that term in U.S.S.G § 4B1.2(b). Under U.S.S.G. § 4B1.2(b):

The term “controlled substance offense” means 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.

The Guidelines, however, do not define the term “controlled substance.” The parties' arguments center on how that term should be defined. Defendant contends that “controlled substance” should be read as any substance included in the drug schedules set forth in section 802 of the Controlled Substances Act (“CSA”). The Government, on the other hand, argues that the term “controlled substance” should be given its “plain and ordinary meaning.” That is, the Government maintains that “either a drug controlled under federal or state law suffices for the purposes of the term ‘controlled substance.'” (Gov't Br., at 10.)

a. The Categorical and Modified Categorical Approaches

Before turning to these issues, I must first decide the appropriate standard to apply. There are two different standards that courts have employed when evaluating whether a prior conviction constitutes a “controlled substance offense”: the categorical approach and the modified categorical approach. See United States v. Brown, 765 F.3d 185, 189 (3d Cir. 2014). Generally, in the context of the Sentencing Guidelines “to determine whether a prior conviction qualifies as a . . . controlled substance offense, ” the court applies a categorical approach.^[4] United States v. Williams, 323, 333 (3d Cir. 2018) (citing Taylor v. United States, 495 U.S. 575, 576-77 (1990)). Under a categorical approach, the court “consider[s] only the elements of the crime of conviction and assess[es] whether they fall within the bounds of a . . . controlled substance offense, as defined under the Guidelines.” Id. Alternatively, under the “modified categorical approach, ” a court may look past the elements of the crime to the facts of the case if a state statute is divisible. Id. A state statute is divisible where it provides alternative elements for a conviction and “thereby define[s] multiple crimes.” United States v. Henderson, 841 F.3d 623, 627 (3d Cir. 2016) (quoting Mathis v. United States, 136 S.Ct. 2243, 2249 (2016)).

Here, Defendant's 2012 marijuana conviction was under N.J.S.A. § 2C:35-5. That section provides:

it shall be unlawful for any person knowingly or purposely:

(1) To manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense, a controlled dangerous substance or controlled substance analog; or

(2) To create, distribute, or possess or have under his control with intent to distribute, a counterfeit controlled dangerous substance.

Id. Paragraph (b) of the section contains 14 subsections with different punishments based on the type and amount of substance, rendering the statute divisible as to those 14 different offenses and, thus, subject to a “modified categorical” analysis. See Lepianka v. Attorney General, 586 Fed.Appx. 869, 871 (3d Cir. 2014) (“However, because [N.J.S.A. § 2C:35-5...