United States v. Isaac Bautista

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10448

Plaintiff-Appellee,

D.C. No.

v. 4:18-cr-01683-

RM-DTF-1

ISAAC DANIEL BAUTISTA,

Defendant-Appellant. ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the District of Arizona

Rosemary Márquez, District Judge, Presiding

Argued and Submitted September 18, 2020

San Francisco, California

Filed November 23, 2020

Amended December 11, 2020

Amended February 26, 2021

Before: Mary M. Schroeder, William A. Fletcher, and

Danielle J. Hunsaker, Circuit Judges.

Order;

Opinion by Judge W. Fletcher

2 UNITED STATES V. BAUTISTA

SUMMARY*

Criminal Law

The panel filed (1) an order withdrawing an opinion filed

November 23, 2020 (previously amended on December 11,

2020); and (2) an amended opinion reversing the district

court’s application of a recidivist sentencing enhancement

under U.S.S.G. § 4B1.2(b), and remanding for resentencing,

in a case in which the defendant was convicted of possession

of ammunition by a convicted felon in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2).

The district court applied the enhancement on the ground

that the defendant’s prior state conviction for attempted

transportation of marijuana under Arizona Revised Statutes

§ 13-3405(A)(4) qualified as a “controlled substance

offense.”

The Arizona statute under which the defendant was

convicted included hemp in its definition of marijuana. In

2018, before the defendant’s federal conviction, Congress

amended the Controlled Substances Act to exclude hemp

from its definition of a controlled substance. Reviewing for

plain error, the panel held that because the federal Controlled

Substances Act in effect at the time of the defendant’s federal

sentencing excluded hemp, the defendant’s Arizona

conviction is facially overbroad and not a categorical match.

The panel held that the district court therefore plainly erred in

applying the § 4B1.2(b) enhancement. The panel concluded

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. BAUTISTA 3

that the error affected the defendant’s substantial rights, and

if uncorrected would seriously affect the fairness, integrity, or

public reputation of judicial proceedings.

COUNSEL

J. Ryan Moore (argued), Assistant Federal Public Defender;

Jon M. Sands, Federal Public Defender; Office of the Federal

Public Defender, Tucson, Arizona; for Defendant-Appellant.

Angela W. Woolridge (argued), Assistant United States

Attorney; Christina M. Cabanillas, Deputy Appellate Chief;

Michael Bailey, United States Attorney; United States

Attorney’s Office, Tucson, Arizona; for Plaintiff-Appellee.

ORDER

The opinion filed November 23, 2020, and previously

amended on December 11, 2020, and reported at 982 F.3d

563, is amended, and is replaced by the amended opinion

filed with this order.

With the opinion as amended, the panel votes to deny the

petition for rehearing, filed by appellee on December 21,

2020 (Dkt. Entry 32). The petition for rehearing is DENIED.

No further petitions for rehearing or rehearing en banc

will be entertained.

4 UNITED STATES V. BAUTISTA

OPINION

W. FLETCHER, Circuit Judge:

Isaac Daniel Bautista appeals a sentence imposed

following his conviction of possession of ammunition by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). Bautista contends that the district court erred in

applying a recidivist sentencing enhancement based on his

prior state conviction for attempted transportation of

marijuana under Arizona Revised Statutes § 13-3405(A)(4).

He contends that it was not a conviction for a “controlled

substance offense” under § 4B1.2(b) of the U.S. Sentencing

Guidelines (“Guidelines”). The Arizona statute under which

Bautista was convicted included hemp in its definition of

marijuana. However, in 2018, before Bautista’s federal

conviction, Congress amended the Controlled Substances Act

to exclude hemp from its definition of a controlled substance.

Thus, in 2019, when Bautista was sentenced in this case, the

Arizona statute under which he had been convicted was

overbroad and that conviction no longer qualified as a

“controlled substance offense” under the Guidelines. We

reverse and remand for resentencing.

I. Factual and Procedural Background

On May 8, 2018, authorities arrested Bautista on an

outstanding warrant for a probation violation. When Bautista

was booked into the county jail, authorities discovered a pen

in his pocket containing one round of .22 caliber ammunition.

Bautista was indicted in federal court for possession of

ammunition by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). After a two-day trial, the jury

returned a verdict of guilty.

UNITED STATES V. BAUTISTA 5

Under the Guidelines, Bautista would have normally

received a Base Offense Level of 14 for the offense, as he

was a prohibited possessor. See U.S.S.G. § 2K2.1(a)(6). But

in the Presentencing Investigation Report (“PSR”), the

probation officer concluded that Bautista’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).

Bautista objected to the PSR but argued only that the base

offense level should be reduced by two levels because he had

accepted responsibility under § 3E1.1. He did not object to

the PSR’s conclusion that his prior state conviction was a

“controlled substance offense” under the Guidelines.

At sentencing, on December 10, 2019, the court relied on

the PSR’s calculation of a Base Offense Level of 20, but it

sustained Bautista’s objection and reduced the offense level

by two levels for acceptance of responsibility. For Bautista’s

Total Offense Level of 18 and Criminal History Category III,

the Guidelines prescribed an advisory range of 33 to

41 months. See U.S.S.G. ch. 5, pt. A. The district court

sentenced Bautista to 30 months of imprisonment, three years

of supervised release, and a special assessment of $100.

Bautista timely appealed his sentence.

II. Standard of Review

We review for plain error when a defendant fails to object

to a sentencing calculation. See United States v. Depue,

6 UNITED STATES V. BAUTISTA

912 F.3d 1227, 1232 (9th Cir. 2019) (en banc). Plain error is

“(1) error, (2) that is plain, and (3) that affects substantial

rights.” Johnson v. United States, 520 U.S. 461, 462 (1997).

If these three conditions are met, we may exercise our

discretion to notice an error that “seriously affects the

fairness, integrity, or public reputation of judicial

proceedings.” United States v. Ameline, 409 F.3d 1073, 1078

(9th Cir. 2005) (en banc).

An error is plain if it is “contrary to the law at the time of

appeal.” Id. (quoting Johnson, 520 U.S. at 468). It affects

substantial rights if the defendant can “demonstrate a

reasonable probability that [he] would have received a

different sentence if the district court had not erred.” Depue,

912 F.3d at 1234 (quoting United States v. Joseph, 716 F.3d

1273, 1280 (9th Cir. 2013)). With respect to substantial

rights, the Supreme Court has held that, “[w]hen a defendant

is sentenced under an incorrect Guidelines range[,] . . . the

error itself can, and most often will, be sufficient to show a

reasonable probability of a different outcome absent the

error.” Molina-Martinez v. United States, 136 S. Ct. 1338,

1345 (2016). Finally, an error in calculating the Guidelines

range “will in the ordinary case . . . seriously affect the

fairness, integrity, or public reputation of judicial

proceedings, and thus will warrant relief.” Rosales-Mireles

v. United States, 138 S. Ct. 1897, 1903 (2018).

III. Discussion

For a defendant who has violated 18 U.S.C. §§ 922(g)(1)

and 924(a)(2), the Guidelines provide for a Base Offense

Level of 20 if the offense was committed “subsequent to

sustaining one felony conviction of . . . a controlled substance

offense.” U.S.S.G. § 2K2.1(a)(4)(A). A “controlled

UNITED STATES V. BAUTISTA 7

substance offense” is “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 . . . .” U.S.S.G.

§ 4B1.2(b).

We have interpreted the term “controlled substance” as

used in the Guidelines to mean a substance listed in the

Controlled Substances Act (“CSA”), 21 U.S.C. § 801 et seq.

See United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir.

2012). As we noted in Leal-Vega, construing the phrase in

the Guidelines to refer to the definition of “controlled

substance” in the CSA—rather than to the varying definitions

of “controlled substance” in the different states—furthers

uniform application of federal sentencing law, thus serving

the stated goals of both the Guidelines and the categorical

approach. Id. at 1166 (citing Taylor v. United States,

495 U.S. 575, 589 (1990)). Our case concerns a different

provision of the Guidelines than in Leal-Vega. We are

concerned here with the term “controlled substance” in the

definition of “controlled substance offense” in § 4B1.2(b)

whereas Leal-Vega analyzed the term “controlled substance”

in the definition of “drug trafficking offense” in § 2L1.2. But

we regard this distinction, and the slight differences in the

drafting histories of the two Guideline provisions, as

immaterial. The relevant text in the two provisions is

identical. And there is no meaningful way to distinguish the

uniformity-in-federal-sentencing rationale that we adopted in

Leal-Vega, which compels the conclusion that “controlled

substance” in § 4B1.2(b) refers to a “controlled substance” as

defined in the CSA. Accord United States v. Townsend,

897 F.3d 66, 71 (2d Cir. 2018); see also United States v.

Gomez-Alvarez, 781 F.3d 787, 794 (5th Cir. 2015); United

States v. Sanchez-Garcia, 642 F.3d 658, 661–62 (8th Cir.

8 UNITED STATES V. BAUTISTA

2011). But see United States v. Ward, 972 F.3d 364, 369–74

(4th Cir. 2020); United States v. Ruth, 966 F.3d 642, 651–55

(7th Cir. 2020); United States v. Sheffey, 818 F. App’x 513,

519–20 (6th Cir. 2020).

In imposing a sentence, the district court must consider

the sentencing guidelines range “that . . . [is] in effect on the

date the defendant is sentenced.” 18 U.S.C.

§ 3553(a)(4)(A)(ii). The Guidelines provide that a court must

use the manual that is “in effect on the date that the defendant

is sentenced,” unless it would violate the Ex Post Facto

Clause. See U.S.S.G. § 1B1.11; see also Peugh v. United

States, 569 U.S. 530, 544–45 (2013) (holding that the Ex Post

Facto Clause is violated when a change to the Guidelines

adopted after the instant offense was committed results in an

increased sentencing range). Bautista’s case poses no Ex

Post Facto concerns because applying federal law at the time

of sentencing results in a lower, not higher, sentencing range.

Thus, a court must ask whether Bautista’s prior crime

qualifies as a “controlled substance offense” under the CSA

and the corresponding Guideline at the time of sentencing.

Relying on McNeill v. United States, 563 U.S. 816 (2011),

the government argues that Bautista’s crime must be

compared to federal law at the time of the prior state

conviction. The government misreads McNeill. At issue in

McNeill was a statutory federal sentencing enhancement for

a prior state drug conviction where “a maximum term of

imprisonment of ten years or more is prescribed by law.”

18 U.S.C. § 924(e)(2)(A)(ii). The Court held that the relevant

term of imprisonment was the term prescribed by state law at

the time of the state-law conviction rather than at the time of

sentencing for the federal crime. The Court explained that it

made little sense to analyze a prior state-law conviction under

UNITED STATES V. BAUTISTA 9

subsequent state law: “[T]he culpability and dangerousness

that [a criminal] history demonstrates[ ]does not cease to exist

when a State reformulates its criminal statutes in a way that

prevents precise translation of the old conviction into the new

statutes.” McNeill, 563 U.S. at 823. The government insists

that McNeill requires us to disregard the present-tense text of

18 U.S.C. § 3553 and U.S.S.G. § 1B1.11, and to apply the

rationale of McNeill to the case now before us.

We disagree with the government. Bautista’s argument

bears little resemblance to the argument in McNeill. Unlike

in McNeill, the state law in our case has not changed. Rather,

federal law has changed. The question before us is whether

the sentencing court should determine the relevance of

Bautista’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. McNeill nowhere

implies that the court must ignore current federal law and turn

to a superseded version of the United States Code. Indeed, 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. Such a view would prevent amendments to

federal criminal law from affecting federal sentencing and

would hamper Congress’ ability to revise federal criminal

law.

Our conclusion also serves the goal of uniformity in

federal sentencing law. Applying superseded versions of the

United States Code depending on when in the past a

defendant committed an identical state crime would cause the

very sentencing disparities Congress has repeatedly stated it

intends to avoid. See 18 U.S.C. § 3553(a)(6) (instructing

judges of “the need to avoid unwarranted sentence disparities

10 UNITED STATES V. BAUTISTA

among defendants with similar records”); 28 U.S.C.

§ 991(b)(1)(B) (stating that the Sentencing Commission must

set policies to “avoid[] unwarranted sentencing disparities

among defendants with similar records”). By applying

current federal law, we avoid this obvious problem.

We note that we have recently held that, in determining

whether a lawful permanent resident is removable based on

a prior state-law conviction, the question is whether the state-

law crime was a categorical match at the time of conviction.

See Medina-Rodriguez v. Barr, 979 F.3d 738, 746–49 (9th

Cir. 2020). However, that holding was limited to removal in

the immigration context. See id. at 749. We based our

decision in Medina-Rodriguez on a Supreme Court opinion

concerning non-citizen removal, on our reading of the

immigration statutes, and on the policy importance of

disclosure of the then-understood immigration consequences

to defendants considering a guilty plea to the state-law

charge. None of those considerations apply here. As

discussed above, it is clear that the issue at sentencing is the

nature of the prior state-law crime under federal law at the

time of sentencing rather than at the time of the prior state-

law conviction.

Having determined that we must compare Bautista’s prior

state-law conviction with federal law at the time of his federal

sentencing, we now apply the categorical approach to

determine whether the prior conviction qualified as a

“controlled substance offense” under the Guidelines. United

States v. Brown, 879 F.3d 1043, 1047–48 (9th Cir. 2018).

Under the categorical approach, we do not analyze the

underlying facts of a conviction, but rather the elements of

the state crime, which we then compare to the elements of the

generic offense. See Descamps v. United States, 570 U.S.

UNITED STATES V. BAUTISTA 11

254 (2013). If a state statute expressly defines the crime

more broadly than the generic federal offense, there is no

categorical match. Lopez-Aguilar v. Barr, 948 F.3d 1143,

1147 (9th Cir. 2020); accord United States v. Vidal, 504 F.3d

1072, 1082 (9th Cir. 2007) (en banc), abrogated on other

grounds as recognized in Cardozo-Arias v. Holder, 495 F.

App’x 790, 792 n.1 (9th Cir. 2012). A state drug statute is

therefore categorically overbroad if it includes substances

other than those listed in the federal CSA. Leal-Vega,

680 F.3d at 1167.

Both marijuana and hemp are plants of the Cannabis

sativa species, but they differ dramatically in the quantity of

the psychoactive substance THC, or delta-9

tetrahydrocannabinol, that they contain. Unlike marijuana,

hemp contains “only a trace amount of the THC contained in

marijuana varieties grown for psychoactive use.” Hemp

Indus. Ass’n v. DEA, 357 F.3d 1012, 1013 n.2 (9th Cir. 2004).

Prior to 2018, the federal CSA defined “marihuana” to

include hemp. The statutory definition included “all parts of

the plant Cannabis sativa L.” except certain minor

components such as the mature stalks of the plant and

sterilized seeds incapable of germination. See 21 U.S.C.

§ 802(16) (2012). Because hemp is a Cannabis sativa plant,

the CSA’s definition of marijuana included hemp. See, e.g.,

Hemp Indus. Ass’n v. DEA, 333 F.3d 1082, 1085 n.2 (9th Cir.

2003).

On December 20, 2018, the President signed into law the

Agriculture Improvement Act, Pub. L. 115-334, 132 Stat.

4490. The Act removed “hemp” from the schedule of

controlled substances, specifying that “[t]he term ‘marihuana’

does not include—(i) hemp, as defined in section 1639o of

12 UNITED STATES V. BAUTISTA

Title 7.” 21 U.S.C. § 802(16); see also § 12619, 132 Stat. at

5018. Section 1639o defines hemp as “the plant Cannabis

sativa L. and any part of that plant . . . with a delta-9

tetrahydrocannabinol concentration of not more than

0.3 percent on a dry weight basis.” 7 U.S.C. § 1639o(1); see

also § 10113, 132 Stat. at 4908.

Bautista 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.” Ariz. Rev. Stat.

§ 13-3405(A)(4). Arizona law defines “marijuana” as “all

parts of any plant of the genus cannabis, . . . whether growing

or not, and the seeds of such plant.” Id. § 13-3401(19). The

definition excluded only “the mature stalks of such plant or

the sterilized seed of such plant which is incapable of

germination.” Id. 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

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.” See Vidal, 504 F.3d at 1082.

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.

UNITED STATES V. BAUTISTA 13

We conclude that the district court’s application of the

six-level recidivist enhancement was plain error. It was

contrary to law and affected Bautista’s substantial rights. An

error in the Guidelines range “most often [is] sufficient to

show a reasonable probability of a different outcome absent

the error.” Molina-Martinez, 136 S. Ct. at 1345. If the

district court again applies a two-level reduction, it will arrive

at a Total Offense Level of 12 and a Guidelines range of only

15 to 21 months—less than half of the range of 33 to

41 months under which Bautista was sentenced. U.S.S.G.

ch. 5, pt. A. Because allowing this error to go uncorrected

would “seriously affect the fairness, integrity, or public

reputation of judicial proceedings,” we exercise our discretion

to grant relief. Rosales-Mireles, 138 S. Ct. at 1903.

REVERSED and REMANDED.