United States v. Justin Brown

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 21-1510

____________

UNITED STATES OF AMERICA

v.

JUSTIN RASHAAD BROWN,

Appellant

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 1-18-cr-00108-001)

District Judge: Honorable Sylvia H. Rambo

____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

June 17, 2022

Before: HARDIMAN, SMITH and FISHER, Circuit Judges.

(Filed: August 29, 2022)

Ronald A. Krauss

Quin M. Sorenson

Office of Federal Public Defender

100 Chestnut Street, Suite 306

Harrisburg, PA 17101

Counsel for Appellant

John C. Gurganus, United States Attorney

Carlo D. Marchioli, Assistant United States Attorney

Office of United States Attorney

Middle District of Pennsylvania

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Counsel for Appellee

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

Justin Rashaad Brown appeals his fifteen-year

mandatory minimum sentence under the Armed Career

Criminal Act (“ACCA”) on the theory that his Pennsylvania

marijuana convictions may no longer serve as ACCA predicate

offenses following the federal decriminalization of hemp. We

hold that, absent contrary statutory language, we look to

federal law in effect at the time of commission of the federal

offense when employing the categorical approach in the

ACCA context. Because the state schedule matched the federal

schedule in effect when Brown committed the federal offense

triggering the ACCA enhancement, we will affirm his

sentence.

2

In 2016, police officers in York County, Pennsylvania,

conducted a series of controlled cocaine buys from Brown.

Based on these purchases, the officers obtained a search

warrant for Brown’s apartment, which they executed on

November 16, 2016. Inside the apartment, they discovered

cocaine, scales, money, and Brown himself. The officers also

found a loaded .38 caliber Ruger LCR revolver tucked under

the couch cushion where Brown had been sitting.

Brown was indicted on multiple counts, including being

a felon in possession of a firearm in violation of 18 U.S.C. §

922(g) on or about the date of the search. Per his agreement

with the Government, Brown pleaded guilty to one charge of

cocaine possession and distribution as well as the § 922(g)

offense in July 2019 before the U.S. District Court for the

Middle District of Pennsylvania. The Court sentenced him in

2021. At the time of sentencing, Brown had five prior

Pennsylvania convictions for the distribution, or possession

with intent to distribute, of controlled substances. One, from

2008, involved cocaine, and the remaining four, spanning from

2009 to 2014, involved marijuana.

Based on these prior convictions, the District Court held

the ACCA applicable to Brown, triggering its fifteen-year

mandatory minimum. The Court declined to decide whether he

was a “career offender” under the U.S. Sentencing Guidelines,

U.S.S.G. § 4B1.1, because it had already made the ACCA

determination. It sentenced Brown to concurrent terms of 180

months’ imprisonment on both counts.

Pursuant to a reservation in his plea agreement, Brown

now timely appeals his designation under the ACCA.

The District Court had jurisdiction under 18 U.S.C. §

3231 (offenses against the laws of the United States). We have

3

jurisdiction under 28 U.S.C. § 1291 (appeal from final

decision) and 18 U.S.C. § 3742(a) (appeal from sentence). We

review de novo Brown’s purely legal challenge to his enhanced

sentence under the ACCA. See United States v. Torres, 961

F.3d 618, 622 n.2 (3d Cir. 2020).

Persons with prior felony convictions are forbidden

from possessing a firearm under 18 U.S.C. § 922(g). United

States v. Daniels, 915 F.3d 148, 150 (3d Cir. 2019). The

ACCA, in turn, imposes a fifteen-year mandatory minimum

sentence on offenders who violate § 922(g) and who have at

least three prior federal or state convictions for violent felonies

or serious drug offenses. 18 U.S.C. § 924(e)(1). The ACCA

defines “serious drug offense” as offenses listed in the

Controlled Substances Act, Pub. L. No. 91-513, 84 Stat. 1242

(1970), and as state offenses involving substances on the

Federal Schedules of Controlled Substances, 21 U.S.C. § 802,

that carry a term of imprisonment of ten years or more. See 18

U.S.C. § 924(e)(2)(A).

Importantly, a state crime may not qualify as a “serious

drug offense”—and thus may not serve as an ACCA

predicate—if its elements are different from or broader than

the generic version of that offense. See United States v.

Henderson, 841 F.3d 623, 627 (3d Cir. 2016). Put another way,

if the state law governing a particular offense criminalizes

more conduct than its generic federal counterpart, then a state

conviction for that offense may not count toward the ACCA’s

requirement of three prior offenses. See Descamps v. United

States, 570 U.S. 254, 257–58 (2013); Moncrieffe v. Holder,

569 U.S. 184, 190 (2013) (“By ‘generic,’ we mean the offenses

must be viewed in the abstract, to see whether the state statute

4

shares the nature of the federal offense that serves as a point of

comparison.” (quoting Gonzales v. Duenas–Alvarez, 549 U.S.

183, 186 (2007))). This requires courts to compare federal and

state law. See United States v. Dahl, 833 F.3d 345, 349, 353

(3d Cir. 2016). When undertaking this comparison, we employ

the “categorical approach,” which directs us to look solely at

the elements of the compared crimes and to ignore the

particular facts of a case. Mathis v. United States, 579 U.S. 500,

504 (2016).

Brown contends his prior state marijuana convictions

may not serve as ACCA predicates because the crime of which

he was convicted is no longer a categorical match to its federal

counterpart. The Commonwealth’s controlled substances

statute forbids “the manufacture, delivery, or possession with

intent to manufacture or deliver, a controlled substance.” 35

Pa. Stat. Ann. § 780-113(a)(30).1 A violation involving a

controlled substance listed on Pennsylvania’s Schedule I, such

as marijuana, is a felony punishable by up to fifteen years’

imprisonment. Id. §§ 780-113(f), 780-104(1)(iv). According to

Brown, the definition of marijuana applicable to

Pennsylvania’s Schedule I is now broader than under federal

law.

1

We have previously held Pennsylvania’s drug

possession and distribution offense to be divisible by drug

type, thus requiring the “modified categorical approach.” See

United States v. Abbott, 748 F.3d 154, 158–59 (3d Cir. 2014);

Henderson, 841 F.3d at 625. Today, we need not delve down

the rabbit hole of seeking to determine what crime Brown was

convicted of, see Mathis, 579 U.S. at 505–06 (explaining the

modified categorical approach), because both sides agree his

prior convictions were for marijuana violations.

5

Pennsylvania law defines marijuana to consist of “all

forms” and “every . . . derivative” of the cannabis plant. Id. §

780-102(b). The definition specifies limited exceptions, such

as for the plant’s “mature stalks” or the “fiber produced from

such stalks.” Id. For a long time, the federal definition was

identical to the Commonwealth’s in every material respect. It

defined marijuana to mean “all parts” and “every . . .

derivative” of the cannabis plant. 21 U.S.C. § 802 (effective

July 22, 2016, to October 23, 2018). And it contained virtually

identical exceptions. See id. (exempting, for instance, “the

mature stalks of such plant” and “fiber produced from such

stalks”).

This changed when Congress passed its most recent

farm bill. The Agriculture Improvement Act of 2018, Pub. L.

No. 115-334, 132 Stat. 4490, removed “hemp” from the

definition of marijuana. 21 U.S.C. § 802(16)(B). As defined by

the Act, hemp means “any part” and “all derivatives” of the

cannabis 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). The upshot is that federal law now

distinguishes between illegal marijuana and legal hemp based

on delta-9 THC concentration. See AK Futures LLC v. Boyd St.

Distro, LLC, 35 F.4th 682, 690 (9th Cir. 2022); Hemp Indus.

Ass’n v. Drug Enf’t Admin., 36 F.4th 278, 282 & n.3 (D.C. Cir.

2022). Pennsylvania law continues to make no such

distinction.2

This brings us to the question at the center of this case:

what is the proper comparison time to determine whether state

2

Pennsylvania has adopted this same definition of

hemp, see 3 Pa. Cons. Stat. § 702, but only in connection with

industrial hemp research, not general possession or

distribution. Id. §§ 701, 703–04.

6

and federal law are a categorical match? The potential for a

categorical mismatch depends on whether we look to federal

law before or after the enactment of the Agriculture

Improvement Act. The Act went into effect December 20,

2018. So Brown pleaded guilty and was sentenced with the

new federal definition of marijuana in place. But the old federal

definition was in force when Brown committed the § 922(g)

offense in 2016 as well as when he committed and was

convicted of his state law offenses. There is no dispute that

Brown’s prior state convictions would be ACCA predicates

without the changes to federal law introduced by the

Agriculture Improvement Act. And the Government agrees

with Brown that Pennsylvania’s definition of marijuana is now

broader than its federal counterpart. Consequently, we must

resolve this timing question.

What is the right comparison time? Brown, citing

several cases interpreting the Sentencing Guidelines, argues

we look to the federal schedule at the time of federal

sentencing. The Government argues we look to the federal

schedule at the time of commission of the federal offense

because of the federal saving statute.3 We agree with the

Government.

3

Before the District Court, the Government did not

invoke the saving statute, and it instead principally argued that

we must look to the federal law in effect at the time of the state

convictions. The Government only suggested in a brief

footnote that the District Court may look to the time of federal

commission. See Spireas v. Comm’r, 886 F.3d 315, 321 (3d

Cir. 2018) (“Whether an argument remains fair game on appeal

is determined by the degree of particularity with which it was

7

The federal saving statute, Act of Feb. 25, 1871, ch. 71,

§ 4, 16 Stat. 431, 432, provides that the “repeal of any statute

shall not have the effect to release or extinguish any penalty,

forfeiture, or liability incurred under such statute, unless the

repealing Act shall so expressly provide.” 1 U.S.C. § 109. The

statute “has been held to bar application of ameliorative

criminal sentencing laws repealing harsher ones in force at the

time of the commission of an offense.” Warden, Lewisburg

Penitentiary v. Marrero, 417 U.S. 653, 661 (1974). It

“mandates that a court apply the penalties in place at the time

the crime was committed unless [a] new law expressly

provides otherwise.” United States v. Reevey, 631 F.3d 110,

114 (3d Cir. 2010).

The saving statute controls here because the Agriculture

Improvement Act effectively repealed federal penalties

associated with federal marijuana convictions. Binding

caselaw has given the statutory term “repeal” a capacious

meaning that applies whenever a later statute indirectly

raised in the trial court . . . , and parties must do so with

exacting specificity.” (internal quotation omitted)).

Nonetheless, we still consider this saving statute argument.

Despite multiple opportunities, Brown has not argued that the

Government waived or forfeited its reliance on the saving

statute. As we have recognized, a “party can waive a waiver

argument.” Freeman v. Pittsburgh Glass Works, LLC, 709 F.3d

240, 250 (3d Cir. 2013). Similarly here, Brown has forfeited

any waiver or forfeiture argument by not filing a reply brief (or

even mentioning such an argument in his letters filed pursuant

to Federal Rule of Appellate Procedure 28(j)). See Barna v. Bd.

of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 146–

47 (3d Cir. 2017) (explaining distinction between waiver and

forfeiture).

8

diminishes the penalties imposed by an older statute. See

Dorsey v. United States, 567 U.S. 260, 272 (2012); United

States v. Jacobs, 919 F.2d 10, 12 (3d Cir. 1990) (holding that

repealed statute that “merely classified offenses” fell within

ambit of the saving statute). Here, the Agriculture

Improvement Act, by changing the definition of marijuana,

indirectly affected penalties associated with prior serious drug

offenses for marijuana convictions. Thus, the Act effected a

“repeal” within the meaning of the saving statute.

Under the saving statute’s default rule, Brown

“incurred” ACCA penalties at the time he violated § 922(g).

“[P]enalties are ‘incurred’ under the older statute when an

offender becomes subject to them, i.e., commits the underlying

conduct that makes the offender liable.” Dorsey, 567 U.S. at

272; see also Marrero, 417 U.S. at 661; Reevey, 631 F.3d at

114. So, when Brown violated § 922(g)—when he possessed a

firearm despite his prior felony convictions—he also

implicated its penalty provisions. This included its fifteen-year

mandatory minimum for offenders with three serious drug

offenses. See 18 U.S.C. § 924(e)(1). If Brown’s prior state

convictions matched federal law at the time he committed the

federal offense, then these convictions subjected him to the

ACCA’s mandatory minimum. Of course, federal statutes may

modify this default rule; therefore, the next question we face is

whether the Agriculture Improvement Act must be applied

retroactively.

A statute may retroactively repeal prior penalties either

“expressly,” 1 U.S.C. § 109, or by “necessary implication.”

Dorsey, 567 U.S. at 274 (quoting Great N. R. Co. v. United

States, 208 U.S. 452, 465 (1908)). Although the saving statute

contemplates only express retroactivity, we must also consider

implied retroactivity because of the longstanding principle that

“one legislature cannot abridge the powers of a succeeding

9

legislature.” Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135

(1810). Thus, one Congress cannot compel a subsequent

Congress to use “magical passwords” when writing and

adopting legislation. Dorsey, 567 U.S. at 274 (quoting

Marcello v. Bonds, 349 U.S. 302, 310 (1955)). We consider

each type of repeal in turn.

Looking for express retroactivity, we are met with

statutory silence. See Agriculture Improvement Act, §§ 10113–

14, 12619, 132 Stat. at 4908–14, 5018. Plainly, the Act does

not expressly make its new definition of marijuana applicable

to offenses completed prior to the Act’s date of enactment.

Whether the statute applies retroactively by “necessary

implication” is a more involved inquiry, but one that still

returns a negative answer. The Supreme Court’s decision in

Dorsey v. United States guides our analysis. 567 U.S. at 272–

73. There, the Court considered whether the ameliorative

sentencing changes introduced by the Fair Sentencing Act of

2010, Pub. L. No. 111–220, 124 Stat. 2372, would extend to

defendants who committed offenses before the date of

enactment. The Court observed that the Sentencing Reform

Act of 1984, Pub. L. No. 98–473, 98 Stat. 1987, set forth a

background principle that courts apply the Guidelines in effect

at the time of sentencing. 567 U.S. at 275. It held Congress was

presumably aware of this principle, which the Fair Sentencing

Act implicitly directed courts to follow. Id. at 275–76

(interpreting language requiring Guidelines changes to occur

“as soon as practicable” to “achieve consistency with . . .

applicable laws,” § 8, 124 stat. at 2374).

Here, by contrast, the Agriculture Improvement Act’s

decriminalization of hemp contains no language directing us,

implicitly or otherwise, to the background principle embodied

in the Sentencing Reform Act. The decriminalization of hemp

does not come until the last section of the Agriculture

10

Improvement Act, which makes conforming changes to the

Controlled Substances Act, but says nothing about sentences,

let alone retroactivity. § 12619, 132 Stat. at 5018. Elsewhere,

the Act makes other programs retroactive, see §§

1401(e)(2)(B), 1431(d)(3), 132 Stat. at 4512–13, 4520,

strongly suggesting the hemp provisions are not similarly

backward-looking. See Salinas v. U.S. R.R. Ret. Bd., 141 S. Ct.

691, 698 (2021). Moreover, Dorsey involved the interpretation

of a statute explicitly related to sentencing. See 567 U.S. at

263–70. But the Agriculture Improvement Act is primarily

devoted to agricultural and nutritional policy. See Cong.

Research Serv., IF12047, Farm Bill Primer: What Is the Farm

Bill? (2022). We hesitate to import background presumptions

pertaining to one statutory area when reading a law on a wholly

different subject matter, see Bond v. United States, 572 U.S.

844, 856–58 (2014) (discussing background presumptions),

and we decline to do so now.

Additionally, in Dorsey, not interpreting the Act to

apply retroactively would have created new arbitrary

sentencing disparities. 567 U.S. at 276–78. Here, following

Brown’s proposed approach and applying the law in effect at

the time of federal sentencing (in other words, applying the

changed definition of marijuana retroactively to the time of

conduct) would also create a significant and arbitrary disparity.

Imagine a hypothetical defendant identical in all material

respects to Brown and who committed the same § 922(g)

offense on the same date in 2016, but who pleaded earlier and

was sentenced in 2017. This defendant would receive a higher

sentence than Brown despite both individuals having

committed the same conduct at the same time. As we have long

observed, “[i]f penalties are to differ because of an arbitrarily

selected date, it seems fairer that the severity of the penalty

depend upon the voluntary act of a defendant in choosing the

11

date of his criminal conduct than upon the date of sentencing .

. . .” Reevey, 631 F.3d at 114 (quoting United States v.

Caldwell, 463 F.2d 590, 594 (3d Cir. 1972)); see also United

States v. Jackson, 36 F.4th 1294, 1300 (11th Cir. 2022). Any

line-drawing exercise will create some arbitrariness, but

declining to apply the Act retroactively grounds any disparity

in a defendant’s voluntary conduct.

Because the Agriculture Improvement Act does not

make its new definition of marijuana retroactive either

expressly or by necessary implication, we apply the penalties

in effect at the time the defendant committed the federal

offense. Therefore, for the purpose of the categorical analysis,

we will look to the federal schedule in effect when Brown

violated § 922(g).

As a consequence of our ruling today, we necessarily

reject the approach suggested by Brown, and adopted by at

least one other circuit, which would have us look to the

Sentencing Guidelines to decide the comparison time question

under the ACCA. Rather, our holding aligns with the Eleventh

Circuit, which, on similar facts, also held that courts must look

to the federal law in effect when the defendant committed the

federal offense. See Jackson, 36 F.4th at 1299–300. As the

Eleventh Circuit sensibly reasoned, this rule gives a defendant

notice “not only that his conduct violated federal law, but also

of his potential minimum and maximum penalty for his

violation and whether his prior felony convictions could affect

those penalties.” Id. at 1300.

We part ways with the Fourth Circuit, which, when

faced with the same categorical inquiry in the ACCA context,

held that courts must look to federal law in effect when the

defendant is sentenced federally. See United States v. Hope, 28

12

F.4th 487, 504–05 (4th Cir. 2022). The Fourth Circuit based its

decision on the requirement that federal courts use the version

of the Guidelines “in effect on the date that the defendant is

sentenced.” Id. at 505 (quoting U.S.S.G. § 1B1.11). The federal

sentencing statute likewise mandates use of the Guidelines in

effect at federal sentencing. See 18 U.S.C. § 3553(a)(4)(A)(ii).

But neither Hope nor this case are Guidelines cases. We are

instead faced with a Congressionally prescribed mandatory

minimum sentence under the ACCA, which omits a similar

directive. See id. § 924(e). And as explained above, we detect

nothing in the text of the Agriculture Improvement Act telling

us to import background principles applicable to Guidelines

cases into the ACCA inquiry of whether a prior offense is a

“serious drug offense.” We thus remain bound by the saving

statute and must respectfully disagree with the Fourth Circuit.

For this same reason, Brown’s reliance on several

Guidelines cases is misplaced. See United States v. Abdulaziz,

998 F.3d 519, 521–22 (1st Cir. 2021); United States v.

Bautista, 989 F.3d 698, 701 (9th Cir. 2021); United States v.

Miller, 480 F. Supp. 3d 614, 624 (M.D. Pa. 2020). We take no

view on the correctness of any of these opinions. Instead, we

merely note that longstanding principles of statutory

interpretation allow different results under the Guidelines as

opposed to under the ACCA. See Dorsey, 567 U.S. at 291

(Scalia, J., dissenting) (“We may . . . hold[] that [18 U.S.C.] §

3553(a)(4)(A)(ii) applies to Guidelines amendments, and [1

U.S.C.] § 109 to statutory ones.”).

Brown contends our precedent requires us to follow

Guidelines caselaw in ACCA cases. He points to United States

v. Marrero, where we stated that “cases involv[ing] sentencing

enhancements under the . . . ACCA . . . nevertheless bind our

[Guidelines] analysis.” 743 F.3d 389, 394 n.2 (3d Cir. 2014),

abrogated on other grounds by Johnson v. United States, 576

13

U.S. 591 (2015). Even assuming the inverse proposition

follows logically from Marrero, the case does not help Brown.

Marrero observed that “substantial similarity” between an

ACCA and a Guidelines provision—in that case, the since-

invalidated residual clause—may require applying the law

from one area directly to the other. Id. (quoting United States

v. Herrick, 545 F.3d 53, 58 (1st Cir. 2008)). However, this does

not require us to overlook material textual differences between

the ACCA and the Guidelines. Compare 18 U.S.C. § 924(e),

with id. § 3553(a)(4)(A)(ii). We therefore decline to look to the

Guidelines to determine the timing of the ACCA categorical

analysis.

Our decision is not inconsistent with Supreme Court

precedent in McNeill v. United States, 563 U.S. 816 (2011),

and accords with our precedent in Martinez v. Attorney

General, 906 F.3d 281 (3d Cir. 2018). McNeill concerned an

intervening change to state sentencing law. After the defendant

was convicted at the state level, but before he committed his

federal offense, North Carolina reduced the maximum

sentence applicable to the defendant’s prior state offenses to

fewer than ten years. 563 U.S. at 818. The McNeill Court

clarified that to determine whether these prior state offenses

were “serious drug offense[s]” courts must look to the state law

as it existed at the time of the state conviction. Id. at 820; see

also id. at 822 (“[A]bsurd results . . . would follow from

consulting current state law to define a previous offense.”).

Other circuits, though they may disagree on other aspects of

the categorical approach, have uniformly understood McNeill

to prescribe only the time for analyzing the elements of the

state offense. See Jackson, 36 F.4th at 1306; Hope, 28 F.4th at

505; Bautista, 989 F.3d at 703; Abdulaziz, 998 F.3d at 526.

McNeill thus presents no barrier to looking to the time of

14

commission of the federal crime to determine the elements of

the federal offense.

In Martinez, we looked to the elements of the federal

offense at the time of the state conviction, but the reasoning of

that case, which arose in the immigration context, compels a

different result under the ACCA. See 906 F.3d at 283–84, 287.

Under the statutory scheme relevant there, noncitizens are

deportable if they have been convicted of a violation “relating

to a controlled substance” under state or federal law. 8 U.S.C.

§ 1227(a)(2)(B)(i). In that context, the state conviction directly

triggers the federal consequence of deportability. See Martinez,

906 F.3d at 283–84; see also Mellouli v. Lynch, 575 U.S. 798,

805 (2015) (“Congress predicated deportation on convictions,

not conduct . . . .” (internal quotation omitted)); Khan v. Att’y

Gen., 979 F.3d 193, 201 (3d Cir. 2020) (“The immigration

consequences of a criminal conviction are typically fixed at the

time of conviction . . . .”). Nonetheless, the Martinez petitioner

argued his state cocaine offense was not a categorical fit with

the analogous federal offense because the federal definition of

cocaine was narrower than the state definition at the time of his

immigration proceeding. 906 F.3d at 287. We disagreed and

concluded instead that the categorical fit was to be evaluated

when federal consequences attached, that is, when the

petitioner was convicted of his state offense. Id. At that time,

the state definition of cocaine and the federal definition “were

identical.” Id. Accordingly, we held that his state conviction

was a qualifying predicate offense that made him removable.

Here, Brown’s argument similarly “depends on the

premise that the present lists control, not the lists in effect when

[federal consequences attached].” Id. But just as in Martinez,

“the categorical approach directs us to compare the schedules

at the time” Brown faced federal consequences for his conduct.

See id. Under the ACCA, this is when Brown violated § 922(g)

15

because the statute’s enhanced penalties are contingent on the

defendant committing a separate federal offense following his

state convictions. See Abdulaziz, 998 F.3d at 531 (describing

difference between criminal sentence enhancement context

and immigration context); Doe v. Sessions, 886 F.3d 203, 208–

09 (2d Cir. 2018) (looking to time of state conviction in

immigration context because it promotes predictability). Thus,

our conclusion in this case is consistent with our reasoning in

Martinez.

***

Having established that we look to the federal schedule

when the defendant committed the federal offense and having

rejected arguments to the contrary, we are left with the final

task of assessing the categorical match between the state and

federal schedules. As previewed, this point is not really in

dispute. Comparing Pennsylvania’s definition of marijuana—

which has remained unchanged at all times relevant to this

appeal—to the federal definition in effect when Brown

committed his § 922(g) offense produces a categorical match.

Brown was therefore properly subject to the ACCA’s enhanced

penalties.

Under the federal saving statute, a defendant incurs

penalties at the time of commission of an offense.

Consequently, we hold that, absent contrary statutory

language, we look to federal law in effect at the time of

commission of the federal offense when using the categorical

approach to determine if prior offenses are ACCA predicates.

When officers found Brown in possession of a firearm in

violation of § 922(g) in 2016, the federal definition of

marijuana was a categorical match to the Pennsylvania

definition. Therefore, we will affirm Brown’s sentence.

16