Opinion
Case No.: 4:21-cr-11-CLM-JHE
2022-01-06
UNITED STATES of America, v. Donald Conelius VOLTZ, Defendant.
US Probation, United States Probation Office, USM, United States Marshal, US Attorney Prim F. Escalona, US Attorney's Office, Kristy Peoples, US Department of Justice, Birmingham, AL, for United States of America.
US Probation, United States Probation Office, USM, United States Marshal, US Attorney Prim F. Escalona, US Attorney's Office, Kristy Peoples, US Department of Justice, Birmingham, AL, for United States of America.
ORDER
COREY L. MAZE, UNITED STATES DISTRICT JUDGE
For the reasons below, the court overrules Voltz's objections to paragraphs 22, 25, 33, 76, 77, and 81 of his presentence investigation report (PSR), which means that the PSR correctly states that Voltz's base offense level is 24 and that the court must apply the enhanced sentencing provisions of 18 U.S.C. § 924(e).
BACKGROUND
Voltz presents two questions that seem to be unanswered in this Circuit:
1. When determining whether a past state conviction counts toward armed career criminal status under 18 U.S.C. § 924(e)(2)(ii), do courts look to the statutory definition of a controlled substance at the time of the past state conviction or the current federal sentencing?
2. When determining the base offense level under U.S.S.G. § 2K2.1, do courts look to the statutory definition of a controlled substance at the time of the past state conviction or the current federal sentencing?
Thankfully, the parties agree on the following facts and points of law that make this case a clean vehicle to answer both questions:
• Voltz challenges the use of only one past conviction: His 2001 state conviction for first degree possession of marijuana for other than personal use (UPOM1), see
ALA. CODE § 13A-12-213(a)(1), for which Voltz received a 10-year prison sentence. See PSR ¶ 33.
• Probation determined that Voltz's UPOM1 conviction qualifies as both a "serious drug offense" under the Armed Career Criminal Act (ACCA) and a "controlled substance offense" under the sentencing guidelines. See PSR ¶33.
• To determine whether Probation is correct, this court must use the "categorical approach," which requires the court to focus on the statutory definition of UPOM1 rather than the particular facts of Voltz's 2001 case. See United States v. White , 837 F.3d 1225, 1229 (11th Cir. 2016).
• The categorical approach requires the court to decide whether there is a "realistic probability" that Alabama would apply the UPOM1 statute, ALA. CODE § 13A-12-213(a)(1), to conduct outside the Controlled Substances Act's (CSA) definition of a controlled substance. Ramos v. United States Atty. Gen. , 709 F.3d 1066, 1071 (11th Cir. 2013).
• The conduct to be judged is the possession of hemp.
• Possession of hemp was criminal under Alabama's UPOM1 statute and the federal CSA when Voltz was convicted in 2001, but it hasn't been illegal under Alabama law since 2016 and federal law since 2018. See Ala. Act. 2016-293 §§ 2, 5; Ala. Act 2019-502 § 1; Agriculture Improvement Act of 2018, Pub. L. No. 115-334 §§ 10111, 12619, 132 Stat. 4490, 4908, 5018.
Based on these facts and legal points, the parties agree that, if the court looks at the CSA definition of a controlled substance in 2001, then Voltz's 2001 UPOM1 conviction counts under the ACCA and the sentencing guidelines because the CSA criminalized hemp possession in 2001. But if the court instead looks at the current CSA definition of a controlled substance, then Voltz's 2001 UPOM1 conviction cannot be used under the ACCA or sentencing guidelines because there is a realistic probability that Alabama would have applied its UPOM1 statute to conduct that is not criminal under today's version of the CSA (i.e. , hemp possession). This leads us back to the questions the court started with: do courts look to the past or present when applying the categorical approach to 18 U.S.C. § 924(e)(2)(ii) and § 2.K2.1 of the sentencing guidelines?
ANALYSIS
The court starts with the ACCA, because if the court finds that Voltz's 2001 UPOM1 conviction counts toward armed career criminal status, then the statutory minimum sentence of 15 years renders the sentencing guideline question academic.
I. ACCA
The ACCA requires the court to sentence Voltz to at least 15 years if Voltz has "three previous convictions ... for a violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1). Section 924(e)(2)(A)(ii) determines whether Voltz's 2001 UPOM1 conviction counts as one of the three necessary convictions. It provides:
As used in this subsection, the term "serious drug offense" means an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act ( 21 U.S.C. 802 )), for which a maximum term of imprisonment of ten years or more is prescribed by law[.]
18 U.S.C. § 924(e)(2)(A)(ii). Read plainly, this section requires three things from Voltz's UPOM1 conviction before it can be used under the ACCA:
1. The controlled conduct involves manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance;
2. The controlled substance fits within the definition of a "controlled substance" provided by 21 U.S.C. § 802 ; and
3. State law punishes the conduct with a max sentence of at least 10 years.
As outlined in the Background section, the parties only disagree about the second requirement: Must this court look to the current definition a controlled substance or the definition that existed when Voltz committed the charged conduct?
A. The McNeill Decision
Voltz argues that courts must look to the current definition because Congress wrote the phrase "a controlled substance (as defined in Section 102 of the Controlled Substances Act ( 21 U.S.C. 802 ))" in the present tense. But Congress also wrote the very next phrase—i.e. , "for which a maximum term of imprisonment of ten years or more is prescribed by law"—in the present tense. And when asked to determine whether the phrase "is prescribed by law" requires district courts to look to the past or present, the Supreme Court unanimously held that "[t]he plain text of the ACCA requires a federal sentencing court to consult the maximum sentence applicable to a defendant's previous drug offense at the time of his conviction for that offense ." McNeill v. United States , 563 U.S. 816, 817-18, 131 S.Ct. 2218, 180 L.Ed.2d 35 (2011) (emphasis added).
To arrive at that conclusion, the Court interpreted the entire subsection at issue here, giving us a strong hint at how the Court would answer the current question:
Use of the present tense in the definition of "serious drug offense" does not suggest otherwise. McNeill argues that the present-tense verb in the phrase "is prescribed by law" requires federal courts to determine the maximum sentence for a potential predicate offense by looking to the state law in effect at the time of the federal sentencing, as if the state offense were committed on the day of federal sentencing. That argument overlooks the fact that ACCA is concerned with convictions that have already occurred. Whether the prior conviction was for an offense "involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance" can only be answered by reference to the law under which the defendant was convicted. Likewise, the maximum sentence that "is prescribed by law" for that offense must also be determined according to the law applicable at that time.
Id. at 820, 131 S.Ct. 2218. While it's on point, much of this paragraph is dicta. So this court must analyze the text and reach its own conclusion. That said, McNeill is no ordinary dicta; it's unanimous Supreme Court dicta, so McNeill's influence is inescapable.
B. Section 924(e) ’s text
Thanks in large part to McNeill , Voltz asks this court to limit its review to a single phrase within § 924(e)(2)(A)(ii) —i.e. , "a controlled substance (as defined in section 102 of the Controlled Substances Act ( 21 U.S.C. 802 ))[.]" But courts must "consider the entire text, in view of its structure and of the physical and logical relation of its many parts." Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 24, at 167 (2012);see also McNeill , 563 U.S. at 819, 131 S.Ct. 2218 ("As in all statutory construction cases, we begin with the language itself and the specific context in which that language is used.").
So the court broadens its review to all of Section 924(e). Placing the disputed phrase in bold , the entire section provides:
(e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).
(e)(2)As used in this subsection—
(A) the term "serious drug offense" means—
(i) an offense under the Controlled Substances Act ( 21 U.S.C. 801 et seq. ), the Controlled Substances Import and Export Act ( 21 U.S.C. 951 et seq. ), or chapter 705 of title 46 for which a maximum term of imprisonment of ten years or more is prescribed by law; or
(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act ( 21 U.S.C. 802 ) ), for which a maximum term of imprisonment of ten years or more is prescribed by law;
(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; and
(C) the term "conviction" includes a finding that a person has committed an act of juvenile delinquency involving a violent felony.
18 U.S.C. § 924(e) (emphasis added). As explained below, the text of three subsections show why the court must look at the definition of a controlled substance when Voltz committed his state offense, not now. Because "[c]ontext is a primary determinant of meaning," Scalia & Garner, Reading Law § 24 at 167, the court starts at the beginning of section (e) and works toward the subsection in question.
1. Section 924(e)(1) : Section (e) is broken into two parts; subsection (e)(1) is the operative provision, and subsection (e)(2) defines terms in the operative provision. The operative provision—the key to everything that comes after—is the requirement that the court impose a fine and mandatory minimum sentence if the court finds that the defendant "has three previous convictions ... for a violent felony or a serious drug offense, or both, on occasions different from one another[.]" So the search for "three previous convictions" guides courts’ interpretation of the whole text. See McNeill , 563 U.S. at 823, 131 S.Ct. 2218 ("Congress based ACCA's sentencing enhancement on prior convictions and could not have expected courts to treat those convictions as if they had simply disappeared.").
The phrase "previous convictions" requires the court to look back for events (i.e. , convictions) that occurred before the current sentencing (i.e. previously). The court must then find that these past events happened "on occasions different from one another," which again requires the court to look back to dates before the present sentencing. As the Supreme Court put it, "the statute requires the court determine whether ‘a previous convictio[n]’ was for a serious drug offense. The only way to answer this backward-looking question is to consult the law that applied at the time of that conviction." Id. at 820, 131 S.Ct. 2218.
As shown below, the definition subsections do not shift the court's focus from past to present. To hold otherwise would produce contradictory sentences for similarly situated defendants. See id. , 563 U.S. at 823, 131 S.Ct. 2218 (rejecting a present-focused reading of § 924(e)(2)(A)(ii) because it "would make ACCA's applicability depend on the timing of the federal sentencing proceeding").
2. Section 924(e)(2)(A)(i) : Subsection (e)(2)(A) gives two definitions for the term "serious drug offense"; the first for past federal convictions, the second for past state convictions. Plugging the definition for past federal convictions ( § 924(e)(2)(A)(i) ) into the operative provision ( § 924(e)(1) ) requires the court to determine whether the defendant has "a conviction for an offense under the Controlled Substances Act ( 21 U.S.C. 801, et seq. ), the Controlled Substances Import and Export Act ( 21 U.S.C. 951, et seq. ) or chapter 705 of title 46 for which a maximum term of imprisonment of ten years or more is prescribed by law." This definition is slightly different from the definition for past state convictions—i.e. , it uses the word "under" rather than the present-tense phrase "as defined in" that Voltz's argument relies on:
| Past federal convictions § 924(e)(2)(A)(i) | under the Controlled Substances Act (21 U.S.C. 801, et seq.) |
|---|---|
| Past state convictions § 924(e)(2)(A)(ii) | as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802) |
Being convicted "under the [CSA]" naturally means the defendant violated the CSA as it was written when the defendant committed the crime—not at some future point after Congress amends the CSA. For example, assume Defendant A was convicted under the CSA for possessing hemp in 2001, the same year Voltz was convicted under State law. That Congress decriminalized hemp possession in 2018 doesn't change the fact that Defendant A was convicted "under the Controlled Substances Act ( 21 U.S.C. 802 )" in 2001. His paper judgment didn't disappear, and it still says Defendant A was convicted "under the Controlled Substances Act ( 21 U.S.C. 802 )" or words to that effect. So that conviction counts for ACCA purposes.
Voltz's reading of the definition for past state convictions would thus create an odd contradiction: Defendant A's 2001 federal conviction would count for ACCA purposes while Voltz's 2001 state conviction would not, even though both men were convicted for committing the same conduct, at the same time. Nothing in ACCA's text suggests that Congress intended past federal convictions to be treated more severely than past state convictions when Congress changes federal law. See McNeill , 563 U.S. at 823, 131 S.Ct. 2218 (refusing to rely on the present state sentencing law because it "would make ACCA's applicability depend on the timing of the federal sentencing proceeding"). Voltz's reading that creates this avoidable contradiction thus violates the harmonious-reading canon: "the provisions of a text should be interpreted in a way that renders them compatible, not contradictory." Scalia & Garner, Reading Law § 27 at 180.
3. Section 924(e)(2)(A)(ii) : That's not the only contradiction that Voltz's reading creates. Voltz's reading also produces contradictory results among similarly situated state convictions.
Plugging the definition for past state convictions ( § 924(e)(2)(A)(ii) ) into the operative provision ( § 924(e)(1) ) requires the court to determine whether the defendant has "a conviction for an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act ( 21 U.S.C. 802 )), for which a maximum term of imprisonment of ten years or more is prescribed by law." Again, this language requires three things:
1. The controlled conduct involves manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance;
2. The controlled substance fits within the definition of a "controlled substance" provided by 21 U.S.C. § 802 ; and
3. State law punishes the conduct with a sentence of at least 10 years.
As discussed, the Supreme Court held in McNeill that, for the minimum sentence requirement, courts must look at the minimum sentence under State law when the crime occurred, even though Congress used the present-tense phrase "for which a maximum term of imprisonment of ten years or more is prescribed by law." McNeill , 563 U.S. at 819-23, 131 S.Ct. 2218.
If Voltz is right, that means Congress wrote § 924(e)(2)(A)(ii) to require district courts to read the old version of state sentencing statutes but the current version of the CSA's definitions, even though Congress used the present tense to describe both tasks. Not only is this an odd contradiction, it would give defendants like Voltz the windfall of later changes to federal law while withholding the benefits of subsequent state-law changes from defendants like McNeill.
When you combine the previous discussion of past federal convictions with Voltz's reading of the definition for past state convictions, here's a list of defendants that would benefit from Voltz's reading of the statute and those who wouldn't:
• No benefit : prior federal conviction, then a change to federal law before current federal sentencing
• No benefit : prior state conviction, then a change to that state law before current federal sentencing
• Benefit : prior state conviction, then a change to federal law (CSA) before current federal sentencing.
Nothing in section (e)’s text suggests this contradiction, so the harmonious-reading canon says that courts should avoid it. See Scalia & Garner, Reading Law § 27 at 180. The court can easily avoid the contradiction by reading all parts of § 924(e) to require courts to focus on the law as it was written when the defendant was convicted. And requiring courts to look back to the law at the time of the past offense is not only easier, it's the reading the Supreme Court suggested in McNeill :
Use of the present tense in the definition of "serious drug offense" does not suggest otherwise. McNeill argues that
the present-tense verb in the phrase "is prescribed by law" requires federal courts to determine the maximum sentence for a potential predicate offense by looking to the state law in effect at the time of the federal sentencing, as if the state offense were committed on the day of federal sentencing. That argument overlooks the fact that ACCA is concerned with convictions that have already occurred. Whether the prior conviction was for an offense "involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance" can only be answered by reference to the law under which the defendant was convicted. Likewise, the maximum sentence that "is prescribed by law" for that offense must also be determined according to the law applicable at that time.
McNeill , 563 U.S. at 820, 131 S.Ct. 2218.
* * *
To sum up, 18 U.S.C. § 924(e) ’s text requires courts to look to the CSA as it was written at the time of a defendant's prior state conviction, even though 18 U.S.C. § 924(e)(2)(A)(ii) uses the present-tense phrase "a controlled substance (as defined in Section 102 of the Controlled Substances Act ( 21 U.S.C. 802 )[.]" This result matches the Supreme Court's reading of the next clause in § 924(e)(2)(A)(ii) and thus avoids inconsistent application of the same statute.
II. Sentencing Guideline § 2K2.1(a)
Voltz next objects to the use of his 2001 UPOM1 conviction to enhance his base offense level under § 2K2.1(a)(1). See PSR ¶ 16. Voltz argues that, if the court sustains his objection, his offense level will drop from 24 to 21, thus dropping his guideline range from 135-168 months to 57-71 months. But the court found in Part I that Voltz must be sentenced to at least 180 months under the ACCA, so Voltz's objection to his offense level is effectively moot. That said, the court will rule on the objection because it must to find the correct base offense level.
1. Background: Sentencing Guideline § 2K2.1(a)(2) requires a base offense level of 24 "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense[.]" The Application Note to § 2K2.1(a)(2) says that the term " ‘controlled substance offense’ has the meaning given that term in § 4B1.2(b) and Application Note 1 of the Commentary to § 4B1.2," which in turn provide that:
The term ‘controlled substance offense’ means 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 (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense....
‘Crime of violence’ and ‘controlled substance offense’ include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.
U.S.S.G. § 4B1.2(b) and Application Note 1. Placing this definition ( § 4B1.2(b) ) into the operative provision ( § 2K2.1(a)(2) ) means that Voltz's base offense level is 24 if he committed the present federal offense:
subsequent to sustaining at least two felony convictions of ... an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits ... the possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export, distribute, or dispense.
The court emphasizes the phrase "the possession of a controlled substance" for two reasons. First, to note that § 4B1.2(b) does not tie the phrase "a controlled substance" to the CSA like the ACCA does:
| Sentencing Guidelines § 4B1.2(b) | "a controlled substance" |
| "a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))" |
Second, Voltz limits his objection to the phrase "the possession of a controlled substance." Voltz argues that, even though the text of § 4B1.2(b) doesn't mention the CSA, § 4B1.2(b) incorporates the current CSA definition of a controlled substance. So, Voltz says, courts must look to the current CSA definition to determine whether past state convictions count under § 2K2.1(a)(2). And as the parties agree, Voltz's 2001 UPOM1 conviction (based on Alabama's 2000 statute) would not fit within the current CSA definition under the categorical approach.
2. The text: The court rejects Voltz's incorporation argument for two reasons. First, § 4B1.2(b) says what it says—and nothing more. Interpreting this definition, the Eleventh Circuit has said that "[w]e look to the plain language of the definitions to determine their elements, and we presume that Congress and the Sentencing Commission said what they meant and meant what they said." United States v. Smith , 775 F.3d 1262, 1267 (11th Cir. 2014) (citations omitted). The Sentencing Commission did not say that a "state law, punishable by imprisonment for a term exceeding one year, that prohibits ... the possession of a controlled substance" must also fit within the current version of the CSA. So this court cannot inject that limitation into the definition. See Scalia & Garner, Reading Law § 8 at 94 ("The absent provision cannot be supplied by the courts. What the legislature ‘would have wanted’ it did not provide, and that is the end of the matter.").
Second, the Sentencing Commission knows how to incorporate statutes into its definitions and has chosen not to. For example, the Sentencing Commission ties "crime of violence" to federal statutes in the definition that immediately precedes the definition of "controlled substance offense":
(a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c) .
U.S.S.G. § 4B1.2(a)(2) (emphasis added). The Sentencing Commission similarly tied "controlled substance offenses" to federal drug statutes when it introduced the guidelines—then changed its mind two years later:
[W]hen the Guidelines were first introduced, the Sentencing Commission defined the term "controlled substance offense" in the career offender provision to mean "an offense identified in 21 U.S.C. §§ 841, 952(a), 955, 955a, 959 ; §§ 405B and 416 of the Controlled Substance Act as amended in 1986, and similar offenses." U.S.S.G. § 4B1.2(2) (1987). Shortly thereafter, the Commission amended the definition to what is substantially, and substantively, its current form, without any cross-references. See id. § 4B1.2(2) (1989).
United States v. Ruth , 966 F.3d 642, 652 (7th Cir. 2020). Knowing that the Sentencing Commission once tied both "crimes of violence" and "controlled substance offenses" to particular federal statutes, the court must presume that the Sentencing Commission intended to untie past state convictions from federal statutes when the Commission removed all such references from the definition of "controlled substance offenses." See id. ("Ruth offers no compelling reason for us to now import the federal definition of controlled substance on our own."); Scalia & Garner, Reading Law , § 40 at 256 ("If the legislature amends or reenacts a provision other than by way of a consolidating statute or restyling project, a significant change in language is presumed to entail a change in meaning.").
The Eleventh Circuit applied this reasoning in United States v. Smith , 775 F.3d at 1267-68. Like Voltz, Jose Nunez (Smith's co-appellant) was convicted under 18 U.S.C. § 922(g), and the district court used his Florida convictions for possession of marijuana with intent to sell and possession of cocaine with intent to sell as the past state convictions needed to raise his base offense level. Id. at 1265. Citing an Eleventh Circuit opinion that applied the original language of § 4B1.2(b), Young v. United States , 936 F.2d 533 (11th Cir. 1991), Nunez argued that the courts could not use his past state convictions because they were not "substantially similar" to federal drug trafficking crimes. Smith , 775 F.3d at 1268. The Circuit Court rejected Nunez's argument because Young relied on the original definition of "controlled substance offense," which as stated, tied the state offense to "an offense identified in 21 U.S.C. §§ 841, 952(a), 955, 955a, 959 ; §§ 405B and 416 of the Controlled Substance Act as amended in 1986, and similar offenses." Smith , 775 F.3d at 1268. The Circuit Court held that Nunez's past Florida convictions counted under the current definition because "the definition of ‘controlled substance offense,’ in this appeal, does not reference drug trafficking or a class of ‘similar offenses.’ " Id.
In other words, the Eleventh Circuit said that, when the Commission removed the references to federal statutes from the definition of a "controlled substance offense," the Commission removed the requirement that courts look at federal drug statutes when determining whether a past state conviction for controlled substances counts under § 2K2.1(a)(2). Because it is Circuit precedent, this court must follow Smith —which, as already explained, matches this court's reading of the plain text.
3. The Jerome Presumption: Voltz counters that the lack of reference to federal law in the definition of "controlled substance offense" triggers the Jerome presumption announced by the Supreme Court in 1943:
But we must generally assume, in the absence of a plain indication to the contrary, that Congress when it enacts a statute is not making the application of the federal act dependent on state law. That assumption is based on the fact that the application of federal legislation
is nationwide and at times on the fact that the federal program would be impaired if state law were to control. When it comes to federal criminal laws such as the present one, there is a consideration in addition to the desirability of uniformity in application which supports the general principle. Since there is no common law offense against the United States, the administration of criminal justice under our federal system has rested with the states, except as criminal offenses have been explicitly prescribed by Congress. We should be mindful of that tradition in determining the scope of federal statutes defining offenses which duplicate or build upon state law. In that connection it should be noted that the double jeopardy provision of the Fifth Amendment does not stand as a bar to federal prosecution though a state conviction based on the same acts has already been obtained. That consideration gives additional weight to the view that where Congress is creating offenses which duplicate or build upon state law, courts should be reluctant to expand the defined offenses beyond the clear requirements of the terms of the statute.
Jerome v. United States , 318 U.S. 101, 104, 63 S.Ct. 483, 87 L.Ed. 640 (1943). In short, Jerome says that, to promote national uniformity, federal courts should assume that federal acts and guidelines do not depend on state laws, because state laws can vary. Voltz says the court should apply the Jerome presumption to read the CSA definition into § 4B1.2(b) so all defendants—regardless of State—can rely on Congress’ current definition, not the State's definition when the defendant committed his crime.
Circuits have split over application of the CSA definition to § 4B1.2(b), thanks largely to the Jerome presumption:
| Read CSA definition into § 4B1.2(b) | Do not read CSA definition into § 4B1.2(b) |
| United States v. Townsend , 897 F.3d 66 (2d Cir. 2018) | United States v. Ward , 972 F.3d 364 (4th Cir. 2020) |
|---|---|
| United States v. Gomez-Alvarez , 781 F.3d 787 (5th Cir. 2015) | United States v. Ruth , 966 F.3d 642 (7th Cir. 2020) |
| United States v. Bautista , 989 F.3d 698 (9th Cir. 2021) | United States v. Henderson , 11 F.4th 713 (8th Cir. 2021) |
| United States v. Jones , 15 F.4th 1288 (10th Cir. 2021) |
This court agrees with the Circuits that have held that Jerome does not require courts to read the CSA definition into § 4B1.2(b).
Again, Jerome says that "we must generally assume, in the absence of a plain indication to the contrary, that Congress when it enacts a statute is not making the application of the federal act dependent on state law." Jerome , 318 U.S. at 104, 63 S.Ct. 483. But as the Tenth Circuit recently noted, "we need not apply the Jerome presumption here because § 4B1.2(b), by its plain language, references ‘state law.’ So § 4B1.2(b) ’s controlled-substance-offense definition necessarily applies to and includes state-law controlled-substance offenses." Jones , 15 F.4th at 1292. The Tenth Circuit also noted that the Sentencing Commission chose to omit any reference to the CSA, even though Congress chose to reference the CSA in the ACCA. Id. at 1294. "So, by not referencing the Controlled Substance Act definition in § 4B1.2(b), the Commission evidenced its intent that the enhancement extend to situations in which the state-law offense involved controlled substances not listed in the Controlled Substance Act." Id.
This is just another way to say that the Sentencing Commission has spoken about whether past state convictions must conform to the CSA. The Commission knew how Congress did it and chose not to follow. The Commission instead wrote its own references to federal law, then chose to remove them—leaving state law to determine what a controlled substance is. Because there is a "plain indication" of the Commission's intent in the text, courts cannot use the Jerome principle to subvert the Commission's choice. Jerome , 318 U.S. at 104, 63 S.Ct. 483 ("[W]e must generally assume, in the absence of a plain indication to the contrary, that Congress when it enacts a statute is not making the application of the federal act dependent on state law.").
And while the Eleventh Circuit hasn't spoken directly on this issue, the Smith opinion gives a good indication how the Court would treat the Jerome principle here. Again, in Smith , the Eleventh Circuit relied on the Sentencing Commission's removal of § 4B1.2(b) ’s references to hold that Florida criminal statutes did not have to include the same element (i.e., mens rea ) as their federal analogue. The Eleventh Circuit instead judged whether the Florida statute met the definition of a "controlled substance offense," as the Commission wrote it, and determined that it did. Smith , 775 F.3d at 1267-68.
So that's what this court will do. Voltz's 2001 UPOM1 conviction is "an offense under ... state law, punishable by imprisonment for a term exceeding one year, that prohibits ... the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense" U.S.S.G. § 4B1.2(b). That means Probation correctly used Voltz's 2001 UPOM1 conviction to set his base offense level at 24. See U.S.S.G. § 2K2.1(a)(2).
* * *
In sum, Voltz's argument that the court should focus on the present state of the law "overlooks the fact that ACCA is concerned with convictions that have already occurred." McNeill , 563 U.S. at 820, 131 S.Ct. 2218. Section 2K2.1(a)(2) of the Sentencing Guidelines similarly focuses on past events.
Voltz admits that the acts that led to his state conviction in 2001 would have violated state and federal drug laws in 2001. Voltz's 2001 conviction was not erased when Alabama and the United States amended those laws in 2016 and 2018 respectively. Voltz's 2001 conviction fits the text of the ACCA and the Sentencing Guidelines, and the state law under which Voltz was convicted is thus not too broad. So the court must apply Voltz's 2001 UPOM1 conviction at sentencing.
CONCLUSION
For the reasons stated above, the court overrules Voltz's objections to paragraphs 22, 25, 33, 76, 77, and 81 of his presentence investigation report (PSR).
DONE and ORDERED on January 6, 2022.