Opining that “it would be illogical to conclude that federal sentencing law attaches ‘culpability and dangerousness’ to an act that, at the time of sentencing, Congress has concluded is not culpable and dangerous” (emphasis in the original), the U.S. Court of Appeals for the Ninth Circuit recently ruled that a “recidivist sentencing enhancement” could not be based on the criminal defendant’s prior violation of state law concerning “marijuana” when, unlike federal law, the state law did not exempt “hemp” from its purview.
Relying on the passage of the federal Agriculture Improvement Act of 2018 – otherwise, known as the “2018 Farm Bill” – the Ninth Circuit specifically held that it was improper to enhance a criminal defendant’s sentence for previously violating state law that criminalized the transportation for sale of “marijuana,” which did not then exempt “hemp” from its definition or scope. As such, the court’s amended opinion in United States v. Bautista, No. 19-10448 (9th Cir. Feb. 26, 2021), not only “serves the goal of uniformity in federal sentencing law,” it further cements the legality of hemp in the United States, or at least in the states comprising the Ninth Circuit.
In its February 26, 2021 amended opinion, the federal appellate court held that the defendant, who had been originally sentenced under the federal sentencing guidelines for recidivists (i.e., career offenders), had to be resentenced. It explained:
[Prior to his current conviction, the defendant] was convicted in 2017 of “Attempted Unlawful Transportation of Marijuana for Sale” under Arizona law. The substantive crime was (and is) defined as “knowingly … transport[ing] for sale … marijuana.” Arizona law defines “marijuana” as “all parts of any plant of the genus cannabis, … whether growing or not, and the seeds of such plant.” The definition excluded only “the mature stalks of such plant or the sterilized seed of such plant which is incapable of germination.” Arizona’s law contains no textual exclusions for hemp or for cannabis plants of a low THC concentration.
At federal sentencing, the district judge was required to compare the elements of the state crime as they existed when [the defendant] 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 [2018 Farm Bill] removed hemp from the federal drug schedule. Because the federal [Controlled Substances Act (the “CSA”)] excludes hemp but … the Arizona Revised Statutes did not, the latter crime’s “greater breadth is evident from its text.” [Therefore, the defendant’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 (citations omitted).
Federal sentencing guidelines, generally speaking, provide for enhanced penalties when the defendant has been convicted previously of, among other offenses, a “controlled substance offense.” For sentencing purposes, such offenses, and others, are considered “predicate” offenses or crimes. One area of focus in criminal litigation is whether a violation of a state criminal controlled substance statute can be considered a predicate offense if the state statute provides for a more expansive definition of a controlled substance offense than does federal law. The U.S. Supreme Court as well as multiple federal courts of appeals have long held, under the so-called “categorical approach,” that if a state permits a conviction predicated on elements of a crime that are broader than those that are considered for the federal equivalent of the crime, such prior conviction cannot constitute a predicate offense.
Addressing this approach in Bautista, the Ninth Circuit explained: “If a state statute expressly defines the crime more broadly than the generic federal offense, there is no categorical match. A state drug statute is therefore categorically overbroad if it includes substances other than those listed in the federal CSA” (citations omitted).
The Ninth Circuit also explained in Bautista that the relevant inquiry is whether the defendant’s “prior crime qualifies as a ‘controlled substance offense’ under the CSA and the corresponding Guideline at the time of sentencing” (emphasis in the original). It stated:
“The question before us is whether the sentencing court should determine the relevance of [the defendant’s] prior state conviction under the federal sentencing law that exists at the time of sentencing or under federal sentencing law that no longer exists. [I]t would be illogical to conclude that federal sentencing law attaches “culpability and dangerousness” to an act that, at the time of sentencing, Congress has concluded is not culpable and dangerous. Such a view would prevent amendments to federal criminal law from affecting federal sentencing and would hamper Congress’ ability to revise federal criminal law.”
Here, at the time of sentencing, “hemp” – which the 2018 Farm Bill defined to mean “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis” – was no longer a controlled substance under federal law. The 2018 Farm Bill, the Ninth wrote, had “removed ‘hemp’ from the schedule of controlled substances” under federal law.
As such, the Ninth Circuit concluded, it was improper to enhance the criminal defendant’s sentence for his prior violation of state law.
Leech Tishman’s Cannabis Industry Group, which is available to help with any or all cannabis-related legal issues, will continue to monitor developments in cannabis-related public policy.
James K. Paulick is Counsel with Leech Tishman and a member of the Corporate Practice Group, where he leads the firm’s Data Privacy & Cybersecurity Team. He is also a member of Leech Tishman’s Litigation & Alternative Dispute Resolution Practice Group, where he is involved with the White Collar Defense Team. Jim is based in the Pittsburgh office and can be reached at 412.261.1600 or firstname.lastname@example.org.
Mike is a Partner at Leech Tishman and is a Co-Leader of Leech Tishman’s Cannabis Industry Group. He is a also a member of the firm’s Litigation & Alternative Dispute Resolution Practice Group, where he leads Leech Tishman’s Insurance Coverage Team. Michael is based in the Pittsburgh office and can be reached at 412.261.1600 or email@example.com.
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