United States Court of Appeals

For the First Circuit

No. 19-2030

UNITED STATES OF AMERICA,

Appellee, 

v.

MOHAMED ABDULAZIZ, 

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Leo T. Sorokin, U.S. District Judge] 

Before

Kayatta and Barron, Circuit Judges,

and Smith,* District Judge.

Michael Tumposky, with whom Hedges & Tumposky, LLP, was on 

brief, for appellant. 

Christine J. Wichers, Assistant United States Attorney, with 

whom Andrew E. Lelling, United States Attorney, was on brief, for 

appellee. 

June 2, 2021

* Of the District of Rhode Island, sitting by designation. 
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BARRON, Circuit Judge. Mohamed Abdulaziz ("Abdulaziz") 

challenges his five-year prison sentence for committing a federal 

firearms offense in violation of 18 U.S.C. § 922(g). He contends 

that the District Court erred in applying the enhancement set forth 

in § 2K2.1(a)(2) of the United States Sentencing Guidelines to him 

at his sentencing. That guideline subjects a defendant who has 

been convicted of a § 922(g) offense to a higher base offense level

("BOL") under the Guidelines if he committed that offense 

"subsequent to sustaining at least two felony convictions of either 

a crime of violence or a controlled substance offense." U.S.S.G. 

§ 2K2.1(a)(2). The question that we must decide turns on a purely 

legal question: what constitutes a "controlled substance" within 

the meaning of this guideline? Because we conclude that the 

District Court erred in resolving it, we vacate the judgment 

imposing the sentence and remand the case for further proceedings.

I.

On January 3, 2019, a federal grand jury in the District 

of Massachusetts indicted Abdulaziz on one count of possession of 

a firearm and ammunition by a prohibited person in violation of 18 

U.S.C. § 922(g)(1). The charged conduct was alleged to have 

occurred on September 2, 2018. Abdulaziz pleaded guilty to the 

offense on June 13, 2019. 

The United States Probation Office prepared a 

presentence investigation report ("PSR"). Among other things, the 
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PSR calculated Abdulaziz's Guidelines Sentencing Range ("GSR") for 

his § 922(g) offense. The PSR based the calculation in part on 

the application of the § 2K2.1(a)(2) enhancement. 

The PSR determined that the enhancement applied based on 

three state law felony convictions that Abdulaziz had sustained 

before he committed the § 922(g) offense. The PSR determined that, 

under the guideline, two of those convictions were of "crime[s] of 

violence" and one was of "a controlled substance offense."

U.S.S.G. § 2K2.1(a)(2).

At the sentencing hearing on September 26, 2019, 

Abdulaziz did not dispute the PSR's determination that his January 

2010 Massachusetts conviction of assault with a dangerous weapon 

(firearm) in violation of Mass. Gen. Laws ch. 265, § 15B(b) --

which he sustained prior to committing the § 922(g) offense --

qualified under § 2K2.1(a)(2) as a "felony conviction[]" of "a 

crime of violence." The District Court noted at the hearing, 

however, that the government was "not arguing" that the other 

conviction that Abdulaziz sustained prior to committing the 

§ 922(g) offense and that the PSR had determined qualified as a 

"felony conviction[]" of "a crime of violence" -- his April 2018 

Massachusetts conviction for unarmed assault with intent to rob in 

violation of Mass. Gen. Laws ch. 265, § 20 -- also qualified as

such a "felony conviction[]" of "a crime of violence."
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Thus, the application of the enhancement turned on 

whether the third state law felony conviction that Abdulaziz

sustained prior to committing the § 922(g) offense and that the 

PSR had determined was of a qualifying offense -- namely, his July 

2014 Massachusetts conviction for possession with intent to 

distribute "Marihuana," which the underlying state statute defined 

to be a "controlled substance," Mass. Gen. Laws ch. 94C, §§ 31,

Class D(b)(1), 32C(a) (effective July 1, 2014) -- qualified as a 

"felony conviction[]" of "a controlled substance offense" under 

§ 2K2.1(a)(2). For, if it did, then Abdulaziz would have committed 

the § 922(g) offense "subsequent to sustaining at least two felony 

convictions of either a crime of violence or a controlled substance 

offense." U.S.S.G. § 2K2.1(a)(2).

The District Court sided with the government and against 

Abdulaziz by ruling that this July 2014 Massachusetts conviction 

did so qualify. The District Court accordingly applied the 

enhancement and determined Abdulaziz's BOL to be 24, rather than 

either 22 or 20 as it would have been if the enhancement did not 

apply. See U.S.S.G. § 2K2.1(a)(3)-(4) (providing for a BOL level 

of either 22 or 20 when the defendant has only one qualifying prior 

conviction, depending on the nature of the firearm involved in the 

§ 922(g) offense).

The District Court next adjusted Abdulaziz's total 

offense level downward due to his timely acceptance of 
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responsibility. See U.S.S.G. § 3E1.1(a), (b). After accounting 

for Abdulaziz's criminal history category, which it determined to 

be VI, the District Court calculated his GSR to be 77 to 96 months 

of imprisonment. The District Court at that point determined that 

Abdulaziz was eligible for a departure pursuant to § 4A1.3(b) of 

the Guidelines.1 The departure resulted in a recalculated GSR of 

57 to 71 months of imprisonment. The District Court ultimately

sentenced Abdulaziz to a sixty-month prison term to be followed by 

three years of supervised release.

Judgment was entered on September 26, 2019. Abdulaziz 

timely appealed on October 7, 2019.

II.

Abdulaziz contends that his sentence cannot stand 

because his July 2014 Massachusetts conviction for possession with 

intent to distribute "Marihuana," Mass. Gen. Laws ch. 94C, §§ 31, 

Class D(b)(1), 32C(a) (effective July 1, 2014), does not qualify 

as a conviction of "a controlled substance offense" under 

§ 2K2.1(a)(2).

Setting aside for the moment the question of what

criteria the guideline uses to determine what constitutes what it 

1 The District Court reasoned that, in light of the age of 

some of Abdulaziz's prior convictions and the lack of recent 

serious offenses, "he's more properly classified in criminal 

history category IV" and thus it "depart[ed] from criminal history 

category VI to criminal history category IV." 
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terms "a controlled substance offense," we note that there is no 

disagreement between the parties that this guideline requires that 

we apply the categorical approach to determine whether Abdulaziz's 

July 2014 Massachusetts conviction was of "a controlled substance 

offense" within the meaning of § 2K2.1(a)(2). In consequence, we

"look only to the elements" of the Massachusetts law offense 

underlying that conviction and "not to 'how [Abdulaziz] actually 

perpetrated the crime to decide if the offense, as defined in the 

statute, matches [the guideline's] criteria' for a 'controlled 

substance offense.'" United States v. Capelton, 966 F.3d 1, 6

(1st Cir. 2020) (quoting United States v. García-Cartagena, 953 

F.3d 14, 18 (1st Cir. 2020)).

We also note that there is no disagreement between the 

parties that, at the time of Abdulaziz's July 2014 conviction for 

that "Marihuana"-related offense, Massachusetts defined 

"Marihuana" to include hemp. See Mass. Gen. Laws ch. 94C, § 1

(effective July 1, 2014) (defining "Marihuana" as "all parts of 

the plant Cannabis sativa L., whether growing or not," except for 

"the mature stalks of the plant, fiber produced from the stalks, 

oil, or cake made from the seeds of the plant"). Accordingly, the 

parties agree that Abdulaziz's July 2014 conviction must be 

understood to be a conviction for possession with the intent to 

distribute hemp even though the record does not establish whether

Abdulaziz actually perpetrated that crime by possessing that 
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substance. See Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013) 

(explaining that under the categorical approach a court is to look 

to "the least of the acts" criminalized by the statute of 

conviction (alteration omitted) (quoting Johnson v. United States, 

559 U.S. 133, 137 (2010)). 

With this foundation in place, we have but one question 

to decide to resolve this appeal: is a conviction of such a hempbased offense a conviction of "a controlled substance offense"

within the meaning of § 2K2.1(a)(2)? As that question necessarily 

turns on the proper interpretation of the Guidelines, our review 

is de novo. See Capelton, 996 F.3d at 5.

A.

"[W]e ordinarily employ the Guidelines in effect at 

sentencing," rather than the Guidelines in effect either at the 

time of the defendant's conviction of the offense for which he is 

being sentenced or at any earlier time. United States v. 

Rodriguez, 630 F.3d 39, 42 (1st Cir. 2010) (alteration omitted) 

(quoting United States v. Maldonado, 242 F.3d 1, 5 (1st Cir.

2001)); see 18 U.S.C. § 3553(a)(4)(A)(ii). We follow that course 

here, and, indeed, no party asks us to do otherwise. We thus must 

decide what the term "controlled substance offense" in the 

§ 2K2.1(a)(2) guideline meant as of the time of Abdulaziz's 

§ 922(g) sentencing.
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The text of § 2K2.1(a)(2) at that time did not purport 

to define the term "controlled substance offense," just as it does 

not purport to do so now. See U.S.S.G. §§ 2K2.1(a)(2). But, it 

did refer at that time -- as now -- to another guideline, 

§ 4B1.2(b), that did define that term. See id. §§ 2K2.1(a)(2) &

cmt. n.1, 4B1.2(b). And, that guideline defined "controlled 

substance offense" at that time -- as now -- as an "offense" that, 

among other things, "prohibits the . . . possession of [with 

intent to distribute] a controlled substance." U.S.S.G. 

§ 4B1.2(b) (emphasis added). Moreover, the government agrees with 

Abdulaziz (given the arguments that it has timely made to us) that 

a "controlled substance" in § 4B1.2(b) was defined as of that time 

by reference to whether a substance was either included in or 

excluded from the drug schedules set forth in the federal

Controlled Substances Act ("CSA").2 See 21 U.S.C. § 812; 21 C.F.R. 

§§ 1308.11-1308.15. Thus, insofar as the CSA's drug schedules

were incorporated into the guideline itself at the time of 

2 The government filed a response to a Rule 28(j) letter after 

briefing was complete in this case in which it took the position 

for the first time that "the term 'controlled substance' in USSG 

§ 4B1.2 [does not] refer[] exclusively to the federal controlled 

substance[s]" listed in the CSA's drug schedules. We decline to 

address such a late-breaking contention about the criteria that 

the Guidelines use to define what constitutes a "controlled 

substance." See Rosa-Rivera v. Dorado Health, Inc., 787 F.3d 614, 

617 (1st Cir. 2015) ("Not only is it improper to advance new 

arguments in a 28(j) letter, but it is far too late in the game." 

(citation omitted)). 
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Abdulaziz's § 922(g) sentencing, it would appear that the answer 

to our question is fairly straightforward: we must look to the 

version of those drug schedules that were "in effect" at that time, 

Rodriguez, 630 F.3d at 42, to determine what constituted a 

"controlled substance," U.S.S.G. § 4B1.2(b), at that time.

To be sure, the CSA's drug schedules do, by design,

change over time. See 21 U.S.C. §§ 811(a), 812(a) ("There are 

established five schedules of controlled substances . . . [which] 

shall initially consist of the substances listed in this section," 

but "the Attorney General may by rule" "add" "or" "remove any drug 

or other substance from the schedules [provided that certain 

findings are made]." (emphasis added)). And that does mean that, 

insofar as § 4B1.2(b) incorporated the CSA's drug schedules as of 

the time of Abdulaziz's § 922(g) sentencing, what constituted a 

"controlled substance" in that guideline as of that time might 

differ from what constituted a "controlled substance" as of the 

time of one of his prior "felony convictions." U.S.S.G. 

§§ 2K2.1(a)(2), 4B1.2(b).

But, of course, the Guidelines themselves are not fixed 

in stone, and yet we ordinarily must apply the version of them 

that is in effect at the time of the defendant's sentencing for 

his conviction of the offense that occasioned it. See Rodriguez, 

630 F.3d at 42; 18 U.S.C. § 3553(a)(4)(A)(ii). Thus, the fact 

that the CSA drug schedules vary over time does not itself suggest 
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a reason for us to look to a version of those schedules that is 

different from the one that was in effect at the time of the 

§ 922(g) sentencing to determine what constituted a "controlled 

substance" -- and thus what constituted a "controlled substance 

offense" -- under § 2K2.1(a)(2) as of the time of that sentencing. 

Nonetheless, the government contends that the text of 

§ 2K2.1(a)(2) must be read to require that we look to the version 

of the CSA's drug schedules that was in place at some time prior 

to the time of the § 922(g) sentencing to discern what that 

guideline deemed to be a "controlled substance" as of the time of 

that sentencing. Specifically, the government contends that the 

words "felony conviction[]" and "subsequent to sustaining" in 

§ 2K2.1(a)(2) combine to require that the meaning of "controlled 

substance," even as of the time of the § 922(g) sentencing, must 

be drawn from the version of the CSA's drug schedules that was in 

place at the time of either (1) Abdulaziz's commission of the 

§ 922(g) offense in September of 2018, or (2) Abdulaziz's 

sustaining of the hemp-related Massachusetts conviction in July of 

2014, and thus not from the version of those schedules that was in 

effect when he was later sentenced for his § 922(g) conviction. 

From that premise, the government then goes on to contend 

that Abdulaziz's July 2014 Massachusetts conviction necessarily 

was of "a controlled substance offense" within the meaning of 

§ 2K2.1(a)(2) as of the time of his § 922(g) sentencing, even 
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though the CSA's drug schedules did not include hemp at the time 

of that sentencing. See Agriculture Improvement Act of 2018, Pub. 

L. No. 115-334, § 12619, 132 Stat. 4490, 5018 (effective Dec. 20, 

2018) (codified as amended at 21 U.S.C. § 802(16)(B)) (providing 

that "[t]he term 'marihuana' does not include" "hemp"). And that 

is because, the government correctly points out, the CSA's drug 

schedules in effect at each of those earlier times (July 2014 and 

September 2018) did include hemp. See 21 U.S.C. § 812, Sched. 

I(c)(10) (2012, effective through Dec. 19, 2018); id. § 802(16) 

(2009, effective through Dec. 17, 2014); id. (2016, effective 

through Oct. 23, 2018). For the reasons that we will next explain, 

however, we do not agree with the government's construction of 

§ 2K2.1(a)(2), under which CSA drug schedules not in effect at the 

time of a defendant's § 922(g) sentencing would determine the 

meaning of "a controlled substance offense" in that guideline as 

of the time of that sentencing.

B.

We begin with the guideline's text and the specific words 

in it that the government contends support the construction that 

it advances. We note, however, that those words do not expressly 

require such a backward-looking, time-of-prior-conviction or timeof-commission-of-§ 922(g)-offense approach to discerning the 

meaning of the term "controlled substance offense" in 

§ 2K2.1(a)(2). The guideline does not refer, for example, to "what 
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at the time of the § 922(g) offense was considered a controlled 

substance offense" or, alternatively, to "what at the time of the 

prior conviction was considered a controlled substance offense." 

Nor must the words that the government places such weight 

on be understood to make such a specification for them to be doing 

any work at all. Whether or not we construe "a controlled 

substance offense" to be defined by reference to the version of 

§ 4B1.2(b) in effect at the time of the § 922(g) sentencing, the 

earlier clause in § 2K2.1(a)(2) would still usefully establish 

that under that guideline the "felony convictions" must have been 

"sustain[ed]" before the § 922(g) offense was "committed." 

U.S.S.G. § 2K2.1(a)(2); cf. United States ex rel. Banigan v. 

PharMerica, Inc., 950 F.3d 134, 143 n.11 (1st Cir. 2020) 

(explaining that "courts, whenever possible, [attempt] to 

give meaning to every word and phrase contained in the text of a 

statute" (quoting United States ex rel. Ondis v. City of 

Woonsocket, 587 F.3d 49, 58 (1st Cir. 2009))).

To be sure, the word "conviction[]" in § 2K2.1(a)(a) 

does require us to look back to the time of a conviction -- rather 

than to the time of the § 922(g) sentencing itself -- to discern 

the elements of, and the penalties attached to, the offense that 

underlies it, so that we may then determine whether the 

"conviction[]" is a "felony conviction[]" of "a controlled 

substance offense" as of the time of that sentencing. U.S.S.G. 
- 13 -

§ 2K2.1(a)(2). That much is clear from McNeill v. United States, 

563 U.S. 816 (2011), on which the government heavily relies. 

But, the word "conviction[]" in the guideline is not the 

word that matters here, given that we are trying to identify this 

guideline's criteria for what constitutes "a controlled substance 

offense." Nor does McNeill suggest otherwise.

In McNeill, the Supreme Court considered a provision in 

the Armed Career Criminal Act ("ACCA") that imposed a sentencing 

enhancement for a § 922(g) offender who had three or more "previous 

convictions" of "a serious drug offense." 18 U.S.C. § 924(e)(1); 

see McNeill, 563 U.S. at 818-19. The Court held that the "plain 

text" of the words "previous conviction" compelled the conclusion 

that the elements of and penalties attached to the offense 

underlying a "previous conviction" were locked in as of the time 

of that "conviction." McNeill, 563 U.S. at 820. Thus, the Court 

held, ACCA's plain text required the sentencing judge to decide 

whether a "previous conviction" of an offense with those time-ofconviction characteristics qualified as a "previous conviction" of

"a serious drug offense" in determining whether the enhancement 

set forth in ACCA applied. Id. at 820-22.

It is clear, as the Sixth Circuit recently observed, 

that "McNeill expresses the principle that the elements of the 

state offense of conviction are locked in at the time of that 

conviction." United States v. Williams, No. 19-6410, 2021 WL 
- 14 -

1149711, at *6 (6th Cir. Mar. 25, 2021) (unpublished); see also

Boulanger v. United States, 978 F.3d 24, 30 n.6 (1st Cir. 2020)

("Congress intended courts to use the 'historical statute of 

conviction' when analyzing ACCA cases, not a modern, amended

version" (quoting McNeill, 563 U.S. at 822)). That is why, 

consistent with the categorical approach, we look to the elements 

of the Massachusetts law "Marihuana" offense of which Abdulaziz 

was convicted in July 2014, Mass. Gen. Laws ch. 94C, §§ 31, Class 

D(b)(1), 32C(a) (effective July 1, 2014), as Massachusetts law 

described those elements at the time of that conviction to 

determine the characteristics of the offense underlying it.

But, in making that much clear, McNeill did not also 

hold that ACCA's own criteria for deeming a "previous conviction[]" 

with those locked-in characteristics to be "a serious drug 

offense," 18 U.S.C. § 924(e)(2)(A) (emphasis added), were 

themselves also locked in as of the time of the "previous 

conviction[]." In fact, McNeill simply had no occasion to address 

that question, because there had been no relevant change in that 

case to those criteria -- which included in part a requirement

that such a conviction carry "a maximum term of imprisonment of 

ten years or more," id. -- between the time of the McNeill

defendant's "previous conviction[]" and the time of his § 922(g) 

sentencing, such as through an amendment during that period to 

ACCA itself, see McNeill, 563 U.S. at 817-19; Career Criminals 
- 15 -

Amendment Act of 1986, Pub. L. No. 99-570, § 1402, 100 Stat. 3207, 

3207-39 to -40 (codified as amended at 18 U.S.C. § 924(e)(2)).3 

In this appeal, of course, the only question that is in 

dispute is the one that is analogous to the question that the Court 

in McNeill did not have any occasion to answer -- namely, are 

§ 2K2.1(a)(2)'s criteria for deeming a "felony conviction[]" to be 

of "a controlled substance offense" locked in at the time of that 

"conviction[]"? That question is analogous to the question of 

what ACCA's criteria were for determining what constituted "a 

serious drug offense." And thus, as the Ninth Circuit recognized

when faced with the same question concerning the criteria that 

this guideline uses to determine whether a prior conviction is a 

qualifying "controlled substance offense" that we now confront, it 

is a question that "bears little resemblance to the [question 

3 Another of ACCA's criteria for deeming a prior state 

conviction to be of "a serious drug offense" included that such a 

conviction must "involv[e] 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))." 18 U.S.C. § 924(e)(2)(A)(ii). But, there 

had been no relevant intervening change to the meaning of 

"controlled substance" in this provision, as the defendant in 

McNeill had six prior North Carolina convictions for either selling 

cocaine or possessing with intent to sell cocaine, see McNeill,

563 U.S. at 818-19, and the defendant did not contend (nor did he 

have any basis for contending) that at any relevant time "cocaine" 

was not a "controlled substance" under the CSA's drug schedules 

and thus under § 924(e)(2)(A)(ii). The McNeill Court thus had no 

occasion to address whether the ACCA enhancement could validly be 

applied to him if "cocaine" were no longer a "controlled substance" 

within the meaning of § 924(e)(2)(A)(ii) at the time of sentencing. 
- 16 -

posed] in McNeill." United States v. Bautista, 989 F.3d 698, 703 

(9th Cir. 2021); see also Williams, 2021 WL 1149711, at *6 

(similar).4

4 In a 28(j) letter filed on May 26, 2021 acknowledging

Williams, the government points to the concurrence in that case, 

which concludes that "McNeill's approach controls here" and that 

"the overwhelming trend of appellate decisions all point to 

applying sentencing enhancements using a time-of-conviction rule." 

Williams, 2021 WL 1149711, at *9-10 (Cook, J., concurring) 

(collecting cases). But, the decisions that the concurrence cites 

reflect only McNeill's principle that the elements of and penalties 

attached to a "conviction" are locked in as of the time of that 

"conviction" and thus, like McNeill, have little to do with the

question posed here. See United States v. Doran, 978 F.3d 1337, 

1340 (8th Cir. 2020) (holding that it is "a 'backward looking' 

question . . . whether a prior conviction was punishable as a 

felony at the time of the conviction" (cleaned up) (quotation 

omitted)); United States v. Bermudez-Zamora, 788 F. App'x 523, 524 

(9th Cir. 2019) (holding that state's post-conviction

"reclassification" of prior conviction from felony to misdemeanor 

did not change the "historical fact" that, for purposes of applying 

a Guidelines enhancement, it was "a conviction for a felony 

offense . . . for which the sentence imposed was five years or 

more," U.S.S.G. § 2L1.2(b)(3)(A) (quotations omitted)); United 

States v. Sanders, 909 F.3d 895, 904 (7th Cir. 2018) (holding that

"for purposes of applying [a statutory] recidivist enhancement 

[predicated on whether a prior conviction was a 'felony'], it is 

immaterial whether a defendant's state felony conviction was 

reclassified as a misdemeanor after she" sustained it); United 

States v. Turlington, 696 F.3d 425, 427-28 (3d Cir. 2012) (holding 

that a court must look to the penalties attached to "the underlying 

offense as [they previously] existed" when applying statutory 

provision that asks whether "the maximum term of imprisonment 

authorized" for that offense was "life imprisonment," 18 U.S.C. 

§ 3559(e)); United States v. Mazza, 503 F. App'x 9, 11 (2d Cir. 

2012) (rejecting contention that a state's "decriminaliz[ation]" 

of conduct underlying prior conviction which occurred "after [the 

defendant's] conviction ha[d] become final" affected his 

Guidelines criminal history category, given that "criminal history 

categories are based on the maximum term imposed in previous 

sentences" (quotation omitted)); United States v. Moss, 445 F. 

App'x 632, 635 (4th Cir. 2011) ("we find no merit in Moss's 
- 17 -

In addition to this distinction between the question 

that we must answer in this case and the question that the Court 

confronted in McNeill, there is another reason why the government's 

reliance on McNeill here is misplaced. The explanation that

McNeill gave for concluding that the words "previous conviction[]" 

in ACCA plainly required a backward-looking inquiry into the 

elements of and penalties attached to the prior offense at the 

time of its commission, see 563 U.S. at 820-23, simply does not 

bear on the answer to the interpretive question that we confront 

here concerning the meaning of "a controlled substance offense" in 

§ 2K2.1(a)(2).

Consider that, in reading "previous conviction[]" to 

require such a backward-looking inquiry, McNeill emphasized how 

strange it would be to treat a defendant as having been convicted 

of an offense the elements of and penalties for which would become 

known to him only upon his sentencing for his conviction of an 

entirely different offense that he had subsequently committed.

See id. at 821 ("Although North Carolina courts actually sentenced 

contention that his 1992 breaking and entering conviction was not 

a 'serious violent felony' because that crime is now punishable by 

a maximum term of less than ten years," given that "the maximum 

term of incarceration at the time of Moss's conviction was ten 

years"); Mallett v. United States, 334 F.3d 491, 504 (6th Cir. 

2003) (deeming "implausible" an interpretation of the Guidelines 

which would require determining "the maximum term of imprisonment" 

for a "state-court conviction" "as of any time other than the date 

on which the defendant's guilt is established").
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[McNeill] to 10 years in prison for his drug offenses, McNeill now 

contends that the 'maximum term of imprisonment' for those offenses 

is 30 or 38 months. We find it 'hard to accept the proposition 

that a defendant may lawfully have been sentenced to a term of 

imprisonment that exceeds the maximum term of imprisonment 

prescribed by law.'" (cleaned up) (quoting United States v. 

Rodriquez, 553 U.S. 377, 383 (2008))). But, there is nothing 

similarly strange about looking to federal law as it exists at the 

time of a defendant's federal sentencing to determine the criteria 

that a potentially applicable federal sentencing enhancement uses 

to determine whether the enhancement must be applied at that 

sentencing. Indeed, ordinarily, that is precisely where we would 

look to identify those criteria. See Bautista, 989 F.3d at 703 

("McNeill nowhere implies that the court must ignore current 

federal law and turn to a superseded version of the United States 

Code" to expound "federal sentencing law [as it] exists at the 

time of sentencing.").

True, a § 922(g) defendant's past criminal conduct 

involving a substance that the CSA's drug schedules classified at 

that earlier time as "controlled" could suggest a reason to be 

concerned that the defendant is especially defiant of law and thus 

a reason to find the earlier classification of the substance by 

those schedules potentially relevant to the sentence that the 

defendant should receive for his § 922(g) conviction. But, that 
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observation does not itself support the conclusion that the 

§ 2K2.1(a)(2) guideline must be read to require us to look to 

federal drug schedules not in effect at the time of the § 922(g) 

sentencing to discern the meaning of what constitutes a "controlled 

substance" and thus "a controlled substance offense" under that

guideline as of the time of that sentencing.

A guideline's enhancement for a defendant's past 

criminal conduct -- such as the enhancement that § 2K2.1(a)(2) 

imposes -- is reasonably understood to be based in no small part 

on a judgment about how problematic that past conduct is when 

viewed as of the time of the sentencing itself. Cf. Taylor v. 

United States, 495 U.S. 575, 581-85 (1990) (noting that the 

drafters of ACCA's enhancement intended it to capture prior crimes 

which "are inherently dangerous" and constitute "the most damaging 

crimes to society" (quotations omitted)). There is thus reason to 

be wary of a construction of § 2K2.1(a)(2) that would require a 

judge at sentencing to apply an enhancement in consequence of the 

defendant's past conduct that itself applies only insofar as that 

past conduct involves a substance that is "controlled" without 

regard to whether the conduct in fact involved a substance that, 

so far as the CSA's drug schedules in effect at the time of that 

sentencing indicate, is "controlled." Cf. H.R. Rep. 115-1072, at 

695 (2018) (Conf. Rep.) (describing "hemp" as an "agricultural 

crop[] having strategic and industrial importance"); cf. also 164 
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Cong. Rec. 4,459-60 (2018) (remarks of Sen. McConnell) ("Hemp is 

in everything from health products to home insulation" and "is a 

completely different plant from its illicit cousin. . . . Hemp 

will be a bright spot for our future."); 164 Cong. Rec. 4,494 

(2018) (remarks of Sen. Bennett) ("We forget, but hemp was widely 

grown in the United States throughout the mid-1800s. Americans 

used hemp in fabrics, wine, and paper. Our government treated 

industrial hemp like any other farm commodity until the early 20th 

century, when a 1937 law defined it as a narcotic drug, 

dramatically limiting its growth. This became even worse in 1970 

when hemp became a schedule I controlled substance. . . . [W]e 

see hemp as a great opportunity to diversify our farms and 

manufacture high-margin products for the American people.").

The reason to be wary of embracing a construction of the 

guideline that would have such a consequence is especially strong 

when one remembers that the enhancement the guideline sets forth 

is not the sole means by which a prior conviction for that conduct 

could impact the calculation of the defendant's GSR. For example, 

that conviction could bear on the defendant's criminal history 

score even if it does not qualify as one of an offense that is 

deemed to be a qualifying one under the enhancement set forth in 

§ 2K2.1(a)(2). See U.S.S.G. § 4A1.1(a)-(c); ch. 5, pt. A 

(sentencing table). And, of course, the Guidelines themselves 

are not binding on the sentencing judge, who has broad discretion 
- 21 -

to take account of relevant considerations in setting the 

defendant's ultimate sentence. See Rita v. United States, 551 

U.S. 338, 347-51 (2007); United States v. Benoit, 975 F.3d 20, 24 

(1st Cir. 2020).

The government does also contend that it would be

"illogical and unfair" to subject a defendant to the enhancement 

that § 2K2.1(a)(2) sets forth simply because of the happenstance 

of the timing of his § 922(g) sentencing. It notes in this regard 

that under a time-of-§ 922(g)-sentencing construction of this 

guideline, two defendants who had been convicted of the same 

offense and had the same criminal history could be treated 

differently just because of that quirk of timing.5

But, this kind of differential treatment between 

otherwise similarly situated defendants often arises when courts 

apply -- as they ordinarily must -- the Guidelines that are 

operative at the time of sentencing. See 18 U.S.C. 

§ 3553(a)(4)(A)(ii) (directing courts to apply the Guidelines that

"are in effect on the date the defendant is sentenced"); see, e.g., 

Williams, 2021 WL 1149711, at *6 n.4 ("[T]wo similarly situated 

5 We note that keying the definition of "controlled substance" 

to the federal drug schedules in effect at the time of the 

commission of the § 922(g) offense would create its own potential 

"disparity," as the timing of the commission of that offense might 

then be determinative of whether a defendant's prior felony 

conviction results in the enhancement, even though the underlying 

prior conviction would be the same irrespective of when the 

§ 922(g) offense was committed.
- 22 -

defendants c[an] receive different federal sentences depending on 

if they are sentenced the day before or after the Sentencing 

Commission changes a Guidelines provision." (citing United States

v. Horn, 612 F.3d 524, 526-27 (6th Cir. 2010))). Indeed, the 

government conceded at oral argument that, if § 4B1.2(b) expressly 

provided that a "controlled substance" meant only "heroin or 

cocaine" at the time of a defendant's § 922(g) sentencing, that 

defendant's prior state law conviction for possession of 

"marihuana" could not be deemed "a controlled substance offense" 

under § 2K2.1(a)(2) just because a no-longer-operative version of 

§ 4B1.2(b) in effect at the time of that prior conviction expressly 

defined a "controlled substance" more expansively to include 

either "heroin, cocaine, or marihuana." Cf. United States v. 

Nickles, 249 F. Supp. 3d 1162, 1163-64 (N.D. Cal. 2017) (applying, 

in the course of "determin[ing] that defendant's prior conviction 

for robbery [from 2009] does not qualify as a crime of violence," 

the "narrow[er] . . . definition of extortion" set forth in an 

August 1, 2016 amendment to the Guidelines to the benefit of a 

defendant sentenced after that date), aff'd, 735 F. App'x 450 (9th 

Cir. 2018). Yet, the very same differential treatment between 

defendants that the government suggests is "illogical and unfair" 

would occur in that event, and we fail to see a meaningful 

difference between that hypothetical guideline and this one.
- 23 -

C.

The government's remaining argument relies on precedents 

that do not concern the proper construction of sentencing 

enhancements at all. Here, the government relies chiefly on 

Mellouli v. Lynch, 575 U.S. 798 (2015), in which the Supreme Court 

addressed the proper construction of a federal immigration measure 

which authorizes the removal of "[a]ny alien . . . convicted of a 

violation of . . . any law or regulation of a State, the United 

States, or a foreign country relating to a controlled substance 

(as defined in section 802 of Title 21)." 8 U.S.C. 

§ 1227(a)(2)(B)(i) (emphasis added). 

The Court in Mellouli looked (in a manner consistent 

with McNeill) to the Kansas drug schedules from the time of the 

petitioner's previous Kansas conviction to determine what 

"controlled substance[s]" the "elements" of that "conviction" 

might be said to "relate to." 575 U.S. at 812-13; see id. at 802 

("At the time of Mellouli's conviction, Kansas' schedules included 

at least nine substances not included in the federal lists"

(emphasis added) (citing, inter alia, Kan. Stat. Ann. §§ 65-

4105(d), 65-4113(d)-(f) (2010 Cum. Supp.)). But, much like in 

McNeill, the Court did not consider -- because it had no occasion 

to consider -- the issue of what temporal version of the federal

drug schedules was relevant in determining the answer to the 

question that is analogous to the one presented here: what 
- 24 -

constitutes a "controlled substance" under 8 U.S.C. 

§ 1227(a)(2)(B)(i). After all, neither party in Mellouli

contended that the federal drug schedules had expanded or 

contracted in any material way between the time of Mellouli's 2010 

Kansas conviction and his removal proceedings in 2012. 

Insofar as Mellouli may be said to touch on that issue,

moreover, it tends, if anything, to undermine the government's 

position here. For example, the Court in Mellouli cited to a 

footnote in the government's brief to support the conclusion that 

some of the substances on the 2010 Kansas schedules were "not 

included in the federal lists," 575 U.S. at 802 (citing 

Respondent's Brief at 9 n.2), and that footnote in turn relied on 

U.S. Drug Enforcement Administration documents from 2013 -- a date 

which fell after both the 2010 Kansas conviction was sustained and 

after Mellouli's removal proceedings had terminated -- to explain 

that certain substances on the 2010 Kansas drug schedules, such as

Salvia Divinorum and Jimson Weed, were "not identifiable as 

federally controlled substances," Respondent's Brief at 8-9, 9 

n.2, Mellouli v. Lynch, 575 U.S. 798 (2015) (No. 13-1034), 2014 WL 

6613094, at *8-9 & 9 n.2. In addition, Mellouli noted that the 

actual substance involved in Mellouli's arrest, Adderall, "is a 

controlled substance under . . . federal law." 575 U.S. at 803 

(emphasis added) (citing 21 C.F.R. § 1308.12(d)(1) (2014)). 
- 25 -

We do recognize that the Second Circuit later held in 

Doe v. Sessions, 886 F.3d 203 (2d Cir. 2018), that this same 

federal immigration measure -- § 1227(a)(2)(B)(i) -- must be read 

to make "time-of-[prior-]conviction" federal drug schedules 

relevant rather than those "in force when removal proceedings are 

initiated." Id. at 209. The Second Circuit reasoned that reading 

"'works to promote . . . predictability in the administration of 

immigration law,'" id. (quoting Mellouli, 575 U.S. at 806),6

because otherwise a previously-convicted "alien could . . . become

removable by the time removal proceedings [are] commenced" if the 

CSA schedules after the prior conviction is sustained are "expanded 

to encompass the same drugs as [the prior conviction]," id. at 

6 In the portion of Mellouli here relied on by the Second 

Circuit, the Supreme Court explained that the categorical approach 

was preferable to a conduct-based one because of the 

"predictability" that it engenders, noting that the categorical 

approach "enables aliens 'to anticipate the immigration 

consequences of guilty pleas in criminal court.'" 575 U.S. at 806 

(quoting Jennifer Lee Koh, The Whole Better than the Sum: A Case 

for the Categorical Approach to Determining the Immigration 

Consequences of Crime, 26 Geo. Immigr. L. J. 257, 307 (2012)); see 

also Koh, supra, at 307 ("By emphasizing statutory language and 

fixed evidentiary rules, the categorical approach permits the 

existence of 'safe harbor' pleas, which do not expose the immigrant 

to the risk of immigration sanctions."). But, the predictability 

that Mellouli was concerned with in that discussion was the 

predictability that flows from the categorical approach itself, 

see 575 U.S. at 806, and not the predictability that comes from 

interpreting a statutory definition that refers to the federal 

controlled substance lists to refer to those lists only as they 

exist at the time of any given prior conviction. Thus, it is far 

from clear that Mellouli's discussion of "predictability" 

militates in favor of the Second Circuit's construction of the 

federal immigration measure at issue in that case.
- 26 -

210. Doe thus concluded that it made sense to construe the federal 

immigration measure in a manner that would provide "the alien with 

maximum clarity at the point at which it is most critical for an 

alien to assess (with aid from his defense attorney) whether 

'pending criminal charges may carry a risk of adverse immigration 

consequences.'" Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 

369 (2010)). 

But, there is no similar concern in this context given 

both the gap in time that necessarily exists between the prior 

conviction and any consequence under § 2K2.1(a)(2) that is 

attributable to it and the highly contingent nature of that 

consequence, as it results only if a defendant commits a new crime. 

Thus, even if we were to assume that Doe's construction of the 

federal measure at issue in that case is reconcilable with 

Mellouli, we are not persuaded by the government's contention that 

Doe supports its position here.7

7 The remaining lower court immigration decisions cited by 

the government do not speak -- let alone persuasively -- to the 

issue of how, temporally, to understand the criteria employed by 

§ 2K2.1(a)(2) to determine whether a prior conviction is "a 

controlled substance offense." Instead, those decisions either 

fail to present any timing issue whatsoever, see Collymore v. 

Lynch, 828 F.3d 139 (2d Cir. 2016), or appear to rest largely on 

a misinterpretation of Mellouli, see Martinez v. Att'y Gen., 906 

F.3d 281, 287 (3d Cir. 2018).
- 27 -

D.

In sum, hemp was not on the CSA's drug schedules when 

Abdulaziz was sentenced on account of his § 922(g) offense in 

September of 2019. See Agriculture Improvement Act § 12619. That 

means, given the government's timely arguments to us, that hemp

was not a "controlled substance" within the meaning of the version 

of § 4B1.2(b) that was in effect at the time of Abdulaziz's

sentencing and, by extension, § 2K2.1(a)(2) as of that same time. 

Accordingly, Abdulaziz's July 2014 Massachusetts conviction was 

not a conviction of "a controlled substance offense" within the 

meaning of that term as it was used in the version of § 2K2.1(a)(2) 

that was applicable at his sentencing.

III.

The sentence is vacated and the case is remanded for 

further proceedings consistent with this opinion.8

8 Insofar as we hold that Abdulaziz's July 2014 Massachusetts 

conviction was not "a controlled substance offense" within the 

meaning of § 2K2.1(a)(2), the government asks that the District 

Court be allowed in the first instance to determine whether 

Abdulaziz's 2018 Massachusetts conviction for unarmed assault with 

intent to rob separately qualifies as "a crime of violence" under 

that guideline, such that the application of the enhancement might 

be justified on that basis. The District Court at Abdulaziz's 

initial sentencing hearing observed, in line with the government's 

sentencing memorandum, that the government was "not arguing" that 

this 2018 conviction was a qualifying "crime of violence." We 

express no opinion as to whether the question of that prior 

conviction's qualifying nature can be revisited during Abdulaziz's 

resentencing in the event the government were to ask the District 

Court to revisit it.