United States v. Miller

480 F.Supp.3d 614

UNITED STATES of America

v.Emerson MILLER, Defendant

CRIMINAL NO. 1:18-CR-6

United States District Court, M.D. Pennsylvania.

Signed August 19, 2020

Scott R. Ford, U.S. Attorney, Harrisburg, PA, for United States of America.

MEMORANDUM

Christopher C. Conner, United States District Judge

Defendant Emerson Miller objects to being classified as a career offender under the United States Sentencing Guidelines. He raises an issue of first impression for this circuit. Miller contends that recent amendments to the Controlled Substances Act ("federal CSA"), 21 U.S.C. § 801 et seq. , remove his prior state conviction—possession with intent to deliver marijuana—from the purview of the career-offender guideline's definition of "controlled substance offense."

I. Factual Background and Procedural History

A federal grand jury sitting in Harrisburg, Pennsylvania, returned a seven-count indictment against Miller in January 2018. (Doc. 1). The indictment charged Miller with four counts of distribution and possession with intent to distribute unspecified quantities of cocaine base in violation of 21 U.S.C. § 841(a)(1) (Counts 2 through 5), two counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) and § 924(e) (Counts 1 and 6), and one count of possession of a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k) (Count 7). (Id. ) The government subsequently filed a felony information under 21 U.S.C. § 851(a)(1), seeking to enhance Miller's statutory sentencing exposure based upon his prior felony controlled-substance convictions. (See Doc. 8).

On April 1, 2019, Miller pled guilty to Counts 5, 6, and 7. (See Doc. 52). The written plea agreement includes two nonbinding stipulations: first, that Miller is responsible for between 11.2 and 16.8 grams of cocaine and, second, that the serial number on the at-issue firearm was obliterated. (Doc. 48 ¶ 11). The agreement also includes a provision wherein the government agrees to recommend a sentence of 188 months’ imprisonment, ostensibly on the assumption that Miller would qualify as a career offender. (See id. ¶ 12).

The presentence report catalogues Miller's three offenses into two separate groups as required under Guidelines Section 3D1.2(c) and (d). (See Doc. 54 ¶ 17). The controlled-substance offense (Group 1) has an adjusted offense level of 18. (Id. ¶ 23). The firearms offenses (Group 2) receive a base offense level of 24 pursuant to Section 2K2.1(a)(2) (because the report finds that Miller committed these offenses after sustaining at least two prior felony controlled-substance convictions), and a four-level enhancement under Section 2K2.1(b)(4)(B) (because the firearm had an obliterated serial number), resulting in an adjusted offense level of 28. (Id. ¶¶ 24, 25, 29). Applying multicount adjustment rules, the combined adjusted offense level for all groups becomes 28. (See id. ¶ 28). However, the report also finds that Miller qualifies as a career offender, increasing his combined adjusted offense level to 34. (Id. ¶ 34). With a three-level reduction for acceptance of responsibility, (id. ¶¶ 35-36), the report calculates a total offense level of 31, (id. ¶ 37).

The career-offender designation impacts Miller's criminal history category too. Miller has a criminal history score of seven, which equates to a criminal history category of IV. (Id. ¶ 48). But with a career-offender classification, Miller's criminal history category is automatically increased to VI. (Id. ¶ 49). An offense level of 31 and criminal history category of VI produce a Guidelines range of 188 to 235 months’ imprisonment.¹ (Id. ¶ 73).

II. Discussion

Miller raises two objections to the presentence report, both of which implicate the Guidelines’ definition of "controlled substance offense." He first challenges his designation as a career offender for, among other things, having two prior felony convictions for controlled-substance offenses.² See U.S.S.G. § 4B1.1(a). And he objects to the enhanced base offense level applied to the firearms group, since that enhancement is also predicated on having two prior felony convictions for controlled-substance offenses. See U.S.S.G. § 2K2.1(a)(2). Both guidelines use the same definition of "controlled substance offense." See id. § 4B1.2(b); see also id. § 2K2.1 cmt. n.1 (incorporating definition provided by Section 4B1.2(b)).

Although these objections involve several nested issues, our inquiry is, at bottom, a narrow one: does the definition of marijuana under Pennsylvania law sweep more broadly than its federal counterpart? Miller contends that it does and that, as a result, his 2008 conviction for possession with intent to deliver a controlled substance (marijuana) under 35 PA. STAT. AND CONS. STAT. § 730-113(a)(30) cannot qualify as a predicate "controlled substance offense" under the Guidelines. Our review of the applicable law reveals Miller to be correct. Because Congress carved "hemp" out of the federal CSA's definition of marijuana in the 2018 Farm Bill, Pub. L. No. 115-334, § 12619, 132 Stat. 4490, 5018 (2018), and because Pennsylvania law includes no like exclusion, the state and federal definitions of "marihuana" no longer match, and a Pennsylvania conviction for possession with intent to deliver marijuana cannot qualify as a Guidelines controlled-substance offense.

A. Divisibility of Section 780-113(a)(30)

Our analysis is initially guided by the categorical approach. See United States v. Williams, 898 F.3d 323, 333 (3d Cir. 2018) (citing Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). Under this approach, we compare "the elements of the statute forming the basis of the defendant's conviction with the elements of the [federal] ‘generic’ crime—i.e. , the [federal] offense as commonly understood." United States v. Henderson, 841 F.3d 623, 627 (3d Cir. 2016) (citation omitted). Our focus is on "the statutory definitions—i.e. , the elements" of the offenses at issue, "not ... the particular facts underlying [the defendant's] convictions." United States v. Chapman, 866 F.3d 129, 133-34 (3d Cir. 2017) (quoting Descamps v. United States, 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ). If, however, the state statute is "divisible"—that is, it provides alternative elements for a conviction and "thereby define[s] multiple crimes"—we must apply the "modified" categorical approach to determine "which alternative formed the basis of the defendant's prior conviction." Henderson, 841 F.3d at 627 (quoting Mathis v. United States, 579 U.S. ––––, 136 S. Ct. 2243, 2249, 195 L.Ed.2d 604 (2016) ; Descamps, 570 U.S. at 257, 133 S.Ct. 2276 ). Only if the elements of the prior conviction match, or are narrower than, the federal crime will the prior offense qualify as a "controlled substance offense" under the career-offender guideline.

United States v. Dahl, 833 F.3d 345, 349 (3d Cir. 2016) (citing Descamps, 570 U.S. at 261, 133 S.Ct. 2276 ).

The Third Circuit addressed Section 780-113(a)(30)’s status as a career-offender predicate just two years ago in United States v. Glass, 904 F.3d 319 (3d Cir. 2018). Glass, however, confronted a different issue: the defendant argued that the state statute criminalized mere offers to sell while federal law did not, rendering Section 780-113(a)(30) categorically broader than its federal counterpart. Glass, 904 F.3d at 322. The question was whether the conduct criminalized by the state (i.e. , the manner of committing the offense) swept more broadly than the conduct criminalized at the federal level. Id. The Glass court determined that it did not and upheld the defendant's Section 780-113(a)(30) convictions as career-offender predicates. Id. at 324.

The nuanced question raised here is whether the substance criminalized by the state is broader than the substance criminalized by the federal government. And that question must be addressed at a more granular level, since our court of appeals has said time and again that Section 780-113(a)(30) is divisible by drug type, see United States v. Abbott, 748 F.3d 154, 159 (3d Cir. 2014) ; Henderson, 841 F.3d at 629 n.5, even if it may be indivisible as to "manner of committing the offense," see United States v. Daniels, 915 F.3d 148, 152 n.3 (3d Cir. 2019) (discussing relationship between Abbott and Glass ). We must therefore apply the modified categorical approach and look to the available Shepard documents to determine Miller's specific offense of conviction. See Shepard v. United States, 544 U.S. 13, 20, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). That review confirms that Miller's 2008 conviction under Section 780-113(a)(30) was for possession with intent to deliver marijuana. (See Doc. 78-1).³

B. Element-to-Element Comparison

Our next step is to identify the elements of Miller's prior conviction, as it is well settled that "[a] state conviction cannot qualify as a ‘controlled substance offense’ if its elements are broader than those listed in Section 4B1.2(b)." Glass, 904 F.3d at 321-22 (citing Mathis, 579 U.S. at ––––, 136 S. Ct. at 2251 ). Again, only if the elements of the prior conviction match, or are narrower than, the federal crime can the prior offense qualify as a "controlled substance offense" under the career-offender guideline. Dahl, 833 F.3d at 349. The elements of Miller's 2008 conviction are (1) "possession [(2)] with intent to ... deliver [(3)] a controlled substance"—that is, marijuana—[(4)] "by a person not registered under" Pennsylvania's Controlled Substance, Drug, Device and Cosmetic Act ("Pennsylvania CSA"). See 35 PA. STAT. AND CONS. STAT. §§ 780-104(1)(iv), -113(a)(30). The only element at issue is the controlled substance: marijuana.

At the time of Miller's offense conduct and conviction, and indeed to the present day, Pennsylvania's CSA defines "marihuana" as follows:

all forms, species and/or varieties of the genus Cannabis sativa L., whether growing or not; the

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