United States v. Lewis, No. 21-2621 (3d Cir. 2023)
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In 2012, Lewis was convicted of possession with intent to distribute marijuana under N.J. Stat. 2C:35-5. In 2020, Lewis pleaded guilty in federal court to unlawful possession of a firearm 18 U.S.C. 922(g). Section 922(g) carries an increased base offense level for a defendant convicted of a prior “controlled substance offense,” U.S.S.G. 2K2.1(a)(4)(A), under federal or state law. Lewis argued that only a conviction related to a substance listed in the Controlled Substances Act (CSA), 21 U.S.C. 801, qualified as a “controlled substance offense.” The CSA at the time of Lewis’s federal sentencing defined marijuana more narrowly than did New Jersey law at the time of his state conviction. In 2018, Congress amended the CSA’s definition of “marihuana” to exclude hemp. In 2019, New Jersey followed suit. The government argued that substances regulated by state law are controlled substances under the Guidelines, even if they are not regulated by federal law. The district court agreed with Lewis.
The Third Circuit vacated. The meaning of “controlled substance” in U.S.S.G. 4B1.2(b)’s definition of “controlled substance offense” includes drugs regulated by state law at the time of the predicate state conviction, even if they are not federally regulated or are no longer regulated by the state at the time of the federal sentencing. Marijuana, including hemp, was regulated by New Jersey at the time of Lewis’s predicate state conviction; the district court erred in declining to apply the 2K2.1(a)(4)(A) enhancement.
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