In United States v. Bautista, --- F. 3d ---, No. 19-10448 (9th Cir. 2020), the Court vacated the defendant's sentence, finding the district court plainly erred in applying a recidivist sentencing enhancement under U.S.S.G. § 4B1.2(b).
This case is a good reminder about the change in the federal definition of marijuana and how it can impact sentencing for new convictions.
The government prosecuted the defendant for being a felon in possession of ammunition "after authorities discovered a pen in his pocket containing one round of .22 caliber ammunition."
At sentencing, the district court concluded that the defendant's "2017 state conviction for 'Attempted Unlawful Transportation of Marijuana for Sale,' in violation of Arizona Revised Statutes § 13-3405(A)(4), qualified as a “controlled substance offense” as defined in § 4B1.2(b). This recidivist enhancement resulted in a six-level increase to a Base Offense Level of 20. See U.S.S.G. § 2K2.1(a)(4)(A)."
The defendant did no object. The Ninth Circuit found plain error.
"Having determined that we must compare Bautista’s prior state-law conviction with federal law at the time of federal sentencing, we now apply the categorical approach to determine whether the prior conviction qualified as a 'controlled substance offense' under the Guidelines."
"[T]he district judge was required to compare the elements of the state crime as they existed when Bautista was convicted of that offense to those of the crime as defined in federal law at the time of federal sentencing—that is, after the Agriculture Improvement Act removed hemp from the federal drug schedule. Because the federal CSA excludes hemp but Section 13-3405 of the Arizona Revised Statutes did not, the latter crime’s 'greater breadth is evident from its text.' Bautista’s conviction is facially overbroad and not a categorical match for a 'controlled substance offense,' and the district court erred in applying the recidivist sentencing enhancement for a controlled substance."
