United States Court of Appeals For the First Circuit

No. 19-2140

UNITED STATES OF AMERICA,

Appellee,

v.

JOSEPH CROCCO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Kayatta and Barron, Circuit Judges, and Smith, District Judge.

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.

September 27, 2021

 Of the District of Rhode Island, sitting by designation. 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

(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.

- 2 - 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,

(1st Cir. 2019) (citing Mathis v. United States,

(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,

(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,

(1st Cir. 2021) (citing McNeill v. United States,

,

- 3 - 820 (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,

(2013) (citing

Taylor,

).

For example, in United States v. Ellison,

(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."

(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

(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.

. However,

- 4 - we determined that intimidation necessarily involved a threat of

bodily harm, and so the statute categorically fit within the

Guidelines' applicable definition.

.

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),

et seq., must provide the definition.

See United States v. Bautista,

(9th Cir. 2021);

1The definition also includes offenses involving counterfeit substances, which are not at issue here. See U.S.S.G. § 4B1.2(b). 2At the time of Crocco's state-court guilty plea, the pertinent Virginia statute provided that it was "unlawful for any person to sell, give, distribute or possess with intent to sell, give, or distribute marijuana."

(2006) (amended 2020). While the maximum punishment is unclear, judging by Crocco's sentence, it was more than a year in prison.

- 5 - United States v. Townsend,

(2d Cir. 2018);

United States v. Gomez-Alvarez,

(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,

,

at *3-5 (8th Cir. Aug. 27, 2021); United States v. Ward,

, 371–72 (4th Cir. 2020); United States v. Ruth,

(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

- 6 - 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,

(2017)

(considering generic definition of sexual abuse of a minor). For

this reason, perhaps, the Fourth and Seventh Circuits each

One thing is certain: if the federal CSA is chosen as the 3

source of the definition, it is the version of the federal CSA in effect at the time of the instant federal sentencing that governs. See United States v. Abdulaziz,

(1st Cir. 2021). By the same token, where a sentencing court is determining whether a prior federal conviction is a categorical match, the court must use the version of the federal CSA in effect at the time of the instant sentencing (not at the time of the prior conviction). See

- 7 - consulted a dictionary to circumscribe the term. See Ruth,

(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,

(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

(authorizing prescriptions for drugs on Schedule II, III, IV,

and V only);

(listing Schedule I drugs). As

Chief Judge Gregory noted in his concurring opinion in Ward,

"[w]hereas the categorical approach was intended to prevent

- 8 - inconsistencies based on state definitions of crimes, the

majority's approach creates them." 972 F.3d at 383–84 (citing

Taylor,

).

And finally, there is the question of whether a prior

state conviction for a substance (such as marijuana) in an amount

which has been decriminalized under that state's law (but not

federally) should count as a controlled substance offense under

§ 4B1.2(b): the federal approach might suggest it should, while

the answer is less clear under the state-law approach and could

depend on the timing issue we recently decided in Abdulaziz,

. See supra note 3. We do not have occasion to address

these issues here because they have not been properly raised; but

they will arise in the future, and when they do, counsel should

raise them to the district court.4

4This broad sketch of the legal landscape also demonstrates why it is problematic that the U.S. Sentencing Commission currently is without sufficient members to conduct business. These issues are ones that cry out for a national solution in the form of an amendment to the Sentencing Guidelines. It makes little sense for career-offender criteria to vary from circuit to circuit based on whether a federal-law or state-law approach is chosen. The career- offender designation can have significant implications in setting the base guideline range -- here, it raised Crocco's guideline range from 77-96 months to 210-240 months. And, moreover, the rapidly evolving changes in state marijuana legalization (and the lack of movement for similar federal drug reform legislation, see, e.g., Marijuana Freedom and Opportunity Act, S. 1552, 116th Congress (introduced May 20, 2019)) will continue to challenge sentencing courts trying to make sensible decisions about whether a defendant should be considered a career offender and what

- 9 - Having sketched this ambiguous terrain, we now turn to

Crocco's specific arguments. As he notes, Virginia has long

treated marijuana differently from other drugs. See Ruplenas v.

Commonwealth,

(Va. 1981). One set of statutory

provisions regulates so-called "controlled substances," see, e.g.,

, and another regulates marijuana, see,

e.g.,

§ 18.2-248.1. Crocco therefore argues that his Virginia

conviction should not count as a "controlled substance offense".

This argument was not raised below, so we review for plain error.

See United States v. Ortíz-Mercado,

(1st Cir.

2019).

As a general principle, if a question of law is unsettled

in this circuit, and a conflict exists among other circuits, any

error in resolving the question will not be "plain or obvious."

See United States v. Lewis,

(1st Cir. 2020)

(quoting United States v. Diaz,

(1st Cir. 2002)).

Here, the circuit split regarding the source of the definition of

controlled substance (state vs. federal law) thwarts the claim of

plain error. Moreover, even if state law were chosen as the

source, it is not clear or obvious that the exact wording used by

the state ("controlled substance" or otherwise) would control the

sentence he should receive. A fully functioning Sentencing Commission would go a long way in assisting courts navigating these issues.

- 10 - inquiry. See United States v. Padilla,

(1st

Cir. 2005) (stating that an error must be clear or obvious in order

to constitute plain error).

Crocco points to this court's recent decision in

Abdulaziz (issued after this case was argued) as an alternative

basis for overturning his sentence. There, the parties agreed

that the federal CSA provided the definition. Abdulaziz,

.5 Operating under that framework, we held that the

definition of controlled substance must be keyed to the version of

the CSA in effect at the time of the instant federal sentencing –

- not a prior version.

. Because hemp had been legalized

prior to the defendant's federal sentencing, and because he had

been convicted under a Massachusetts marijuana law that included

hemp in its definition of marijuana, the defendant's prior

conviction was not a categorical match.

.

In a supplemental brief filed after oral argument,

Crocco argues that his prior conviction, like Abdaluziz's, should

not qualify as a controlled substance offense due to the federal

legalization of hemp. In the same filing, he also points out that

Virginia legalized hemp between the time of his state-court

conviction and his federal sentencing. See

-

The government's late-breaking argument to the contrary in 5

that case was rejected based on waiver. United States v. Abdulaziz,

, 523 n.2 (1st Cir. 2021).

- 11 - 247(D) (as amended by 2019 Va. Acts ch. 653). These arguments,

not raised in his opening brief, are waived. See United States v.

Mayendía-Blanco,

(1st Cir. 2018) (citing Landrau-

Romero v. Banco Popular De P.R.,

, 616 (1st Cir.

2000)). But even putting waiver aside, Crocco cannot establish

plain error due to the myriad unanswered, unbriefed questions

described above. Thus, even construing Crocco's argument as

claiming that the District Court erred by not applying the federal-

law approach outlined above, or alternatively, that even a state-

law-based categorical approach would have yielded a favorable

result, the legal conclusions advocated by Crocco are neither clear

nor obvious. See Padilla,

(1st Cir. 2005).

Next, Crocco argues that his classification as a career

offender and his resulting sentence were substantively

unreasonable (a) because he was barely eighteen years old at the

time of one of his prior offenses and (b) because marijuana's legal

status has experienced a sea change in recent years. We review

these claims of substantive unreasonableness for abuse of

discretion. See United States v. Arsenault,

(1st

Cir. 2016).

Crocco does not point to any precedent requiring a court

to disregard prior offenses that involved marijuana or that were

committed shortly after reaching the age of eighteen. Instead, he

- 12 - makes a compelling case that, in a court's exercise of its

"duty . . . to make evaluative judgments" regarding a defendant's

criminal history, United States v. Merritt,

(1st

Cir. 2014), both youthfulness and changes in societal mores should

play important roles.6

Here, after hearing detailed argument regarding Crocco's

life and criminal history, the District Court seemingly determined

that the guideline range overstated the seriousness of his record.

Following the very approach advocated by Crocco, the District Court

thus sentenced Crocco to well below the suggested range.7

Accordingly, we will not disturb the sentence. See United States

In support, Crocco points to cases in which courts have done 6

exactly that. See United States v. Lawrence,

(9th Cir. 1990) (affirming district court's decision to downwardly depart because the Guidelines "significantly over-represent[ed] the seriousness of [the] defendant's criminal history[,]" which primarily involved marijuana convictions (quoting U.S.S.G. § 4A1.3, policy statement)); United States v. Naylor,

(W.D. Va. 2005) (sentencing the defendant based on the non-career-offender guideline range, even though he met the designation based on offenses that he committed before he turned eighteen, based on the "history and characteristics of the defendant" (quoting

(a)(1))). For this reason, Crocco's reliance on United States v.

F.3d 519 (4th Cir. 2014), is misplaced. There, the district court departed from the guideline range of 120-121 months, sentencing the forty-year-old defendant to life plus sixty months in prison, partly based on crimes he committed during adolescence. See

. The Fourth Circuit's decision, which held the upward departure to be substantively unreasonable, says little about the instant case, where the District Court gave a sentence below the guideline range. See

- 13 - v. King,

(1st Cir. 2014) ("It is a rare below-

the-range sentence that will prove vulnerable to a defendant's

claim of substantive unreasonableness.").

Lastly, Crocco argues that his state-court marijuana

sentence, which at the time of the instant offense was suspended

on the condition of good behavior, should not have been treated as

a "criminal justice sentence" under § 4A1.1(d) of the Guidelines.

Because we affirm Crocco's designation as a career offender, which

automatically placed him in the highest criminal history category,

the additional criminal history points under § 4A1.1(d) have no

effect on his guideline range. See U.S.S.G. § 4B1.1(b). We

therefore decline to reach this issue. See United States v. Davis,

(1st Cir. 2017).

III. Conclusion

The sentence is affirmed. So ordered.

- 14 -