F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

I S A A C D A N I E L B A U T I S T A , Defendant-Appellant. N o. 19-10448

D.C. No. 4:18-cr-01683- RM-DTF -1

ORDER AND AMENDED OPI NI ON

Appeal from the United States District Court for the District of Ariz o na Rosemary Márquez , District J u dg e, Presiding

Arg u ed and Submitted September 18, 2020 San F rancisco, California

F iled November 23, 2020 Amended December 11, 2020 Amended F ebruary

26, 2021

B efore: Mary

M. Schroeder, W illiam A. F letcher, and Danielle J . Hunsaker, Circuit J udg es.

Order; Opinion by

J udg e W

. F letcherU N I T E D S T A T E S V

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SUMMARY *

Crim inal Law

The p anel f

iled (1) an order withdrawing an opinion filed Novemb er 2 3, 2020 (previously amended on December 11, 2020); a nd (2 ) an amended opinion reversing the district court’s application of a recidivist sentencing enhancement under U .S.S.G. § 4B 1.2(b), and remanding for resentencing
, in a case in which the defendant was convicted of possession of ammunition by a convicted f elon in violation of 18 U .S.C. §§ 922(g )(1) and 924(a)(2).

The d istrict court applied the enhancement on the g r ound that the d efendant’s prior state convictio n f or attempted transportation of marijuana under Ariz ona Revise d Statutes § 13-3405(A)(4) qualified as a “ controlled substance offense.”

The Ariz ona statute under w hich the defendant was convicted included hemp in its definition of marijuana. I n 2018, before the d efendant’s federal conviction, Cong ress

a m e nded the Controlled Substances Act to ex clude h emp from its definition of a controlled substance. Reviewing for plain error, the panel held that because the federal Controlled Substances Act in effect at the time of the defendant’s federal sentencing e x clud e d h emp, the defendant’s A riz o na conviction is facially overbroad and not a categ o rical match. The panel h eld that the d istrict court therefore plainly erred in apply ing the § 4B 1.2(b) enhancement. T he panel concluded

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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U T I S T A 3

that the error affected the defendant’s substantial rig hts, and if uncorrected would seriously affect the fairness, integ r ity
, o r public reputation of judicial proceeding s.

COUNSEL

J

. Ry an Moore (arg

ued), Assistant F ederal Public Defender; J on M. Sands, F ederal Public Defender; Office of the F ederal Public Defender, Tucson, Ariz ona; for Defendant-Appellant.

A ng ela W

. Woolridg e (arg ued), Assistant United Stat e s Attorney ; Christina M. Cabanillas, Deputy Appellate Chief; Michael B ailey
, U n i t ed States Attorney ; United States Attorney ’s Office, Tucson, Ariz ona; for Plaintiff-Appellee.

ORDER

T h e o pinion filed November 23, 2020, and p r eviously amended on December 11
, 2 0 2 0, a nd reported at 982 F .3d 563, is amended, a n d i s replaced by the amended opinion filed with this order.

W ith the o pinion as amended, the p anel votes to deny the pet i t i on for rehearing
, filed by appellee on December 21, 2020 (Dkt. Entry 32). The petition for rehearing is DENIED

.

No further petitions for rehearing or rehearing en b anc will be entertained.U N I T E D S T A T E S V

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U T I S T A 4

OP INION

W

. F L ETCHER, Circuit J udg e:

I saac Daniel B autista appeals a sentence impo s e d following his conviction o f p o ssession of ammunition b y a convicted felon, in violation of 18 U.S.C. §§ 922(g )(1) a nd 924(a)(2). B a

utista c o n tends that the district court erred in apply ing a recidivist senten c i n g enhancement based on his prior state conviction for a ttempted t r a nsportation o f marijuana under Ariz ona Revised Statutes § 13-3405(A)(4). He contends that it w as not a conviction for a “ co ntrolled substance o ffense” under § 4B 1.2(b) o f the U. S

. S e n tencing Guidelines ( “Guidelines”). T he A riz ona statute under which B autista w as convicted included he m p i n its definition o f marijuana. However, in 201 8
, before B autista’s federal conviction, Cong ress amended the Controll e d S u b stances A ct to ex clude hemp from its definition of a controlled substance. Thus, in 2019, when B autista was sentenced in this case, the Ariz ona st atute under w hich he had been convicted was overbro a d and that conviction n o long er qualified a s a “controlled substance offense” under the Guidelines. W e reverse and remand for resentencing

.

I

. F actual and Procedural B ackg round

On May 8, 2018, authoriti e s a r rested B autista on an outstanding warrant for a probation violation. W hen B a utista

was booked into the c ounty jail, authorities discovered a p en in h is p ocket containing one round of .22 caliber ammunition. B autista was indict e d in federal court for possession o f ammunition by a c onvicted f elon, in v iolation of 18 U .S.C. §§ 922(g )(1) and 924(a)(2). After a two-day trial, the jury returned a verdict of g

uilty

.U N I T E D S T A T E S V

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Under the Guideli n es , B a u tista would h ave normally

r e c e i ved a B ase Offense L evel of 14 for the offense, as h e

was a prohibited possessor. See U .S.S.G. § 2K2.1(a)(6). B ut in the Presentencing I nvestig ation Report (“PSR”), t h e pro b ation officer concluded that B autista’s 2017 state conviction for “Attempte d Unlawful Transportation o f Marijuana for Sale,” in violation of Ariz o na Revised Statutes § 13-340 5 (A ) (4), qualified as a “ controlled substance offense” a s defined in § 4B 1.2(b). T h is recid i v i s t enhancement resulted in a six -level in c rease to a B ase Offense L evel of 20. See U.S.S.G. § 2K2.1(a)(4)(A).

B a utista o b jected to the PSR but arg ued only that the base offense level should be reduced b y two levels b ecause he h ad accepte d r e s p o nsibility u nder § 3 E1.1. He did not object to the PSR’s conclusion that his prior state c o n v iction was a “controlled substance offense” under the Guidelines.

At sentencing
, on December 10, 2019, the court relied on the PSR’s calculation o f a B ase Offense L ev e l o f 2 0, but it sustained B autista’s objection and reduced the offense level by two levels for acceptance o f responsibility

. F or B autista’s Total Offense L evel o f 18 a nd Criminal History Categ ory I I I
, the Guidelines prescribed an advisory rang e of 33 to 41 months. See U.S.S.G. ch. 5, p t

. A

. T h e d istrict court sentenced B a

utista to 30 months of imprisonment, three y ears of supervised release, and a special assessment of $100.

B a utista timely

appealed his sentence.

I I . Standard of Review

W e review for plain error when a defendant fails to object
t o a sentencing calculation. See United States v. De p u e ,U N I T E D S T A T E S V

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U T I S T A 6

912 F .3d 1227, 1232 (9th Cir. 2019) (en banc). Plain error is “(1) erro r, (2) that is plain, and (3) that affects substantial rig hts.” Johnson v. United States
, 520 U .S. 461, 462 (1997). I f these three conditions are met, we may ex e rcise o u r discretion to notice an error that “seriously a ffects the fairness, integ rity
, o r public reputation o f judicial proceeding s.” United States v

. Ameline
, 4 09 F .3d 1073, 1078 (9th Cir. 2005) (en banc).

An error is plain if it is “contrary to the law at the time o f appeal.” Id. (quoting Johnson
, 5 20 U.S. at 468). I t affects substantial rig hts if the defendant can “demonstrate a

reaso nable probability that [ he] w ould have received a different sentence if the district court h ad not erred.” Depue
, 912 F .3d at 1234 (quoting U nited States v. J

oseph , 716 F .3d 1273, 1280 (9th Cir. 2013)). W ith r e spect to substantial rig hts, the Supreme Court has held that, “[ w] hen a defendant i s sentenced under an incorrect Guidelines rang e[ ,]

. . . the

e r r o r i tself can, and most often will, b e sufficient to show a reasonable probability of a different outc o m e absent the error.” Molina-Martinez v. United S t a t es , 136 S. Ct. 1338, 1345 (2016). F inally
, an error i n calculating the Guidelines
rang e “ will in the ordinary ca s e

. . . seriously affect the fairness, integ rity
, o r public reputation o f j u dicial proceeding s, and t h u s will warrant relief.” Rosales-Mireles v. United States , 138 S. Ct. 1897, 1903 (2018).

I I I . Discussion

F or a defendant who has v iolated 1 8 U.S.C. §§ 922(g )(1) and 924(a)(2), the G u i d e l ines provide for a B a se Offense L ev e l of 20 if the offense w as committed “subsequent t o sustaining one felony conviction of

. . . a controlled substance offense.” U.S.S.G. § 2 K2 .1(a)(4)(A). A “controlledU N I T E D S T A T E S V

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s u bstance offense” is “an offense under federal or state l a w , punishable by impriso n m e n t for a term ex ceeding one y ear, that prohibits the manufacture, import, ex port, distribution, o r dispensing o f a contro l l ed substance

. . . .” U.S.S.G. § 4B 1.2(b).

W e h ave interpret e d t he term “controlled substance” a s used i n the G uidelines to mean a substance listed in the Controlled Substances Act (“CSA”), 21 U.S.C. § 801 et seq. See United States v. Leal-Vega
, 680 F .3d 1160, 1167 ( 9th Cir. 2012). As we noted in Leal-Vega
, construing th e phrase in the Guidelines to r e f

er to the d efinition of “controlled substance” in the CSA—rather than to the vary ing definitions of “controlled substance” in the different s t a tes—furthers uniform application o f federal sentencing law, thus se r v ing the stated g oals of both the Guidelines and the cat e g orical approach. Id. at 1 1 66 (citing T a y lor v. United States
, 495 U.S. 575, 589 (1990)). Our case c o n c e rns a different provision of the G uidelines than in Leal-Vega

. We a re concerned h ere with the term “controlled substance” in the definition of “controlled substance o f f ense” in § 4B 1.2(b) whereas Leal-Vega analy

z ed the term “controlled substance” in the definition of “ drug trafficking offense” in § 2L 1 .2. B ut

we reg ard this dist i nction, and the slig h t differences in the drafting histories of the two G uide l i ne provisions, a s immaterial. T he relev a n t tex t in the two provisions is identical. And there is no meaning ful way to disting uish the uniformity -in-federal-sentencing rationale that we adopted in Leal-Vega
, which compels the conclusion that “controlled substance” in § 4B 1.2(b) refers to a “controlled substance” a s defined in the CSA. Ac c o r d United States v. Townsend
, 897 F .3d 66, 71 (2d Cir. 2018); see also United Sta t e s v. Gomez-Alvarez
, 781 F .3d 7 8 7, 794 (5th Cir. 2015); United States v. Sanchez-Garcia
, 6 4 2 F

. 3d 658, 661–62 (8th Cir.U N I T E D S T A T E S V

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2011). But see United States v. W ard
, 972 F

. 3d 364, 369–74 (4th Cir. 2020); United States v. Ruth
, 966 F

. 3d 642, 651–55 (7th Ci r. 2020); United States v. Sheffey
, 818 F

. App’x 513, 519–20 (6th Cir. 2020).

I n i m p osing a sentence, the district court must consider the sentencing g uidelines rang e “that

. . . [ is] in effect on the d a t e t h e d e f

e n d a n t i s s e n t e n c e d

. ” 1 8 U

. S

. C

. § 3553(a)(4)(A)(ii). The G uidelines p rovide that a court must

use the manual that is “in effect o n the date that the defendant is sentenced,” unless it would violate the Ex Post F acto Clause. S

ee U.S.S.G. § 1B 1.11; see also Peugh v. United States
, 569 U .S. 530, 544–45 (2013) (holding that the Ex Post F acto Clause is violated when a chang e to the Guidelines adopted a fter the instant o ffense was committed results in an increased sentencing rang e). B autista’s case poses no Ex Post F acto concerns b ecause apply ing federal law at the time of sentencing results in a lower, not hig her, sentencing rang e

. T hus, a court must ask whether B autista’s prior crime qualifies as a “controlled substance of f e nse” under the CSA and the corresponding

Guideline at the time of sentencing.

Rely ing on McNeill v. United States
, 5 63 U.S. 8 1 6 (2011), the g overnment a

rg ues that B autista’s crime must be compared to federal law at the time o f the prior state conviction. The g overnment misr e a d s Mc Neill

. At issue in McNeill was a statutory federal s e n t encing enhancement for

a p rior state drug conviction where “a max imum term o f imprisonment of ten y ears or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). The Court held that the relevant
term of imprisonment was the term prescribed b y state law at the time of the state-law conviction rather than at the time o f sentencing for the federal c rime. The Court ex plained that it made little sense to analy

ze a prior state-law conviction underU N I T E D S T A T E S V

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subsequent state law: “ [ T] he c u lpabi l ity and dang erousness that [ a criminal] history demonstrates[ ] does n ot cease to ex ist when a State reformulates its c riminal statu t e s in a way that prevents precise translation of the old conviction into the new statutes.” McNeill
, 563 U.S. at 823. The g overnment insists that M cNeill requires us to disreg ard the present-tense tex t o f 18 U

. S

. C

. § 3 553 and U.S.S.G. § 1B 1.11, and to apply the rationale of M

cNeill to the case now before us.

W e disag ree with the g over nment. B autista’s arg ument bears little resemblance to the arg ument in McNeill

. Unlike in McNeill
, the state law in our case has not chang e d. Rather, f e d e r a l law has chang ed. The question before us is whether the sentenci n g court should determine the r elevance o f B autista’s p r ior state conviction under the federal sentencing law that ex ists a t the time of sentencing or under federal sentencing law that no long er ex i s t s

. McNeill nowhere implies that the court must ig nore current federal law and turn to a superseded version of the U nited States Code. I ndeed, it would be illog ical to conclude that fe d e r a l sentencing law attaches “culpability and dang erousness” to an act that, at the time of sentencing
, Cong ress h as con cluded is n ot culpable and dang erous. Such a view w ould prevent amendments to federal criminal law from affectin g f e d eral sentencing a

nd would hamper Cong ress’ ability to revise fed e r al criminal law.

Our co n c l u sion also serves the g oal of uniformity in federal sentencing law. Apply ing superseded versions of the Un i ted States Code depending on when in the past a defendant committed an identical state crime would cause the
very sentencing d isparit i es Cong ress has repeatedly stated it intends to avoid. See 18 U.S.C. § 3553(a)(6) (instructing judg es of “the need to avoid unwarranted sentence d isparitiesU N I T E D S T A T E S V

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among defendants w i t h similar records”); 2 8 U .S.C. § 991(b)(1)(B ) (stating that the Sentencing Commission must set policies to “avoid[ ] unwarr an ted sentencing d isparities
among d efendants with sim i lar records”). B y a pply ing current federal law, we avoid this obvious problem.

W e note that we have recently held th a t , i n d etermining whether a lawful permanent r e s ident is removable based on

a prior state-law conviction, the question is whether the statelaw crime was a categ o rical match at the time of conviction

. See Medina-Rodriguez v. Barr
, 979 F

. 3d 738, 7 4 6–49 (9th Cir. 2 020). However, that holding was limited to removal in the immig rat i o n contex t. See id. at 749. W e based our decision in Medin a

- R odriguez on a Supreme Court opinion concerning non-citiz en removal, on our reading of the immig ration statutes, and o n the policy importance o f disclosure of the then-understood immig ration consequences to defendants considering a g uilty p lea to the state-law

c h a rg e

. None of those considerations apply here. A s discussed above, it is clear that the issue at sentencing is the
nature of the prior state-law crime u n d e r federal law at the time of sentencing rather than at th e time of the prior statelaw conviction.

Having determined that we must compare B autista’s prior state-law conviction with federal law at the time of h is federal sentencing
, we now apply the categ orical approach to determine whether the prior c o n v i ction qualified as a “controlled substance offense” under the Guidelines. United States v. Brown
, 8 7 9 F. 3 d 1043, 1047–48 (9th Cir. 2018). Und e r the c ateg orical approach, we do not analy z e the underlying facts of a conviction, b ut rath er the elements o f the state crime, which we then compare to the elements of the
g eneric o ffense. See D escamps v. United States
, 570 U

. S.U N I T E D S T A T E S V

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254 ( 2 013). I f a state statute ex pre s s l y defines the crime

m o r e broadly than the g eneric federal offense, there is n o categ orical match. Lo

p e z

- A g uilar v

. Barr
, 948 F .3d 1143, 1147 (9th Cir. 2020); accord United S tates v. Vidal
, 504 F .3d 1072, 1082 (9th Cir. 2007) (en banc), abrogated on other grounds as recognized in Cardozo-Arias v

. Holder
, 495 F

. App’x 790, 7 92 n.1 (9th Cir. 2 012). A state dr u g s t a t u te is therefore categ o r i cally overbroad if it includes substances other than those listed in the federal CSA. Le a l

- V eg a , 680 F .3d at 1167.

B o th marijuana and hemp are p lan t s o f the Cannabis sativa species, but they

differ d ramatically

in the quantity

of
t h e p s y c h o a c t i v e s u b s t a n c e T H C
, o r d e l t a

- 9 tetrahy drocannabinol, that they contain. Unlike marij u a n a , hemp contains “only a trace amount of the THC contained in marijuana varieties g rown for psy c h o a c tive use.” Hemp Indus. Ass’n v. DEA
, 3 57 F .3d 1012, 1013 n.2 ( 9th Cir. 2004).

Prior to 2 0 1 8
, the federal CSA defined “marihuana” to include hemp. The statutory definition included “all parts o f the plant Cannabis sativa L .” e x cept certain minor components such as the mature stalks o f t h e plant a nd steriliz ed seeds incapable of g ermination. See 21 U .S.C. § 802(16) (2012). B ecause hemp is a Cannabis sativa plant, the CSA’s definition of marijuana included hemp. See, e.g. , Hemp I ndus. A ss’n v

. DEA
, 333 F .3d 1082, 1085 n.2 (9th Cir. 2003).

On December 20, 2018, the President sig ned into law the Ag riculture I mprovement Act, Pub. L

. 115-334, 1 3 2 Stat. 4490. The Act removed “ h emp” fr om the schedule o f

c o n t r o l l e d s u bstances, specify

ing that “[ t] he term ‘marihuana ’ d o e s n ot include—(i) hemp, as d efined in section 1639 o o fU N I T E D S T A T E S V

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Title 7.” 21 U.S.C. § 802(16); see a lso § 12619, 132 Stat. at 5018. Section 1639o d efines hemp a s “the pl a n t C annabis sativa L

. a

nd any part o f t h a t p l ant

. . . w ith a delta-9 tetrahy drocannabinol concentrati o n of not more than 0.3 percent on a dry w eig ht basis.” 7 U.S.C. § 1639o(1); see also § 10113, 132 Stat. at 4908.

B a utista was convicted in 2017 of “Attempted Unlawful Transport a t ion of Marijuana for Sale” under Ariz ona law. The substantive crime w as (and is) defined as “knowing ly

. . . transpo r t [ i n g ] for sale

. . . marijuana.” Ariz

. Rev. Stat. § 13-3405(A)(4). Ariz ona law d ef i n es “marijuana” as “ all parts of any plant of the g enus cannabis,

. . . whether g rowing

or not, and the seeds of such plant.” Id. § 13-3401(19). The definit i o n e x cluded o nly “the mature stalks of such plant o r the steriliz ed seed o f such p l a n t which is incapable o f
g ermination.” Id. Ariz ona’s law c o ntains no tex tual

ex c lusions for hemp or for cannabis p l a n t s of a low THC concentration.

At federal sentencing
, the d istrict judge w a s required to compare the elements o f the state crime a s they ex isted when B autista was convicted of t h a t offense to those of the crime

as d efined in f

ederal l aw a t the time of federal sentencing

—that is, after the A g riculture I m p r ovement A ct removed hemp from the federal drug schedule. B ecause the f e deral CSA ex cludes hemp but Section 13-3405 o f t h e Ariz ona Revised Statutes d id not, the latter crime’s “gr eater breadth is evident from its tex t.” See Vidal
, 504 F .3d at 1082. B autista’s conviction is facially overbroad and n o t a categ orical match for a “ controlled substance offense,” a nd the dist ri c t c ourt erred in a pply ing the recidivist sentencing enhancement for a controlled substance.U N I T E D S T A T E S V

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U T I S T A 13

W e conclude that the district court’s app l i cation of the six -level recidivist e nhancement was plain error. I t was contrary to law and affected B a utista’s substantial rig hts. An

er r o r in the Guidelines r ang e “most often [ is] sufficient to show a reasonable probabi l i t y of a different outcome absent the error.” Molina-Marti nez , 136 S. Ct. at 1345. I f the district court a g ain applies a two-level reduction, it will arrive
at a Total Offense L evel of 12 a n d a G uidelines r ang e of only 15 to 2 1 months—less than half of the rang e of 33 to 4 1 months under w hich B autista was sentenced. U .S.S

. G

. ch. 5, pt. A. B ecause allowing this error to g o uncorrected would “seriously a f

fect the fairness, integ rit y , or public reputation o f

j u d i c i a l p r o c e eding s,” we ex ercise our discretion to g rant relief. Rosales-Mireles , 138 S. Ct. at 1903.

REVERSED and REMANDED.