United States v. Timothy Ward ( 2020 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4720
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TIMOTHY A. WARD
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Robert E. Payne, Senior District Judge. (3:18-cr-00044-REP-1)
Argued: October 30, 2019 Decided: August 20, 2020
Before GREGORY, Chief Judge, KEENAN, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge
Keenan joined. Chief Judge Gregory wrote an opinion concurring in the judgment.
ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Geremy C.
Kamens, Federal Public Defender, Alexandria, Virginia, Valencia D. Roberts, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond,
Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Alexandria,
Virginia, Heather Hart Mansfield, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
RICHARDSON, Circuit Judge:
In 2018, Timothy Ward pleaded guilty to one count of distributing cocaine in
violation of 21 U.S.C. § 841. Because Ward was thrice before convicted of a felony
“controlled substance offense,” the district court applied a career-offender enhancement to
Ward’s sentence. U.S.S.G. § 4B1.1(a). As a result, Ward faced a Federal Sentencing
Guidelines’ range of 151 to 188 months’ imprisonment—more than six times the 24 to 30
months Guidelines’ range applicable without the enhancement. Ultimately, the district
court imposed a sentence of 10 years’ imprisonment.
According to Ward, his career-offender designation was erroneous. He argues that
his two Virginia convictions for possession with the intent to distribute heroin do not
qualify as controlled substance offenses under the Guidelines. In Ward’s view, for a state
conviction to qualify as a “controlled substance offense,” the “controlled substances”
covered under the state law of conviction must be coextensive with those listed in the
federal Controlled Substances Act. And because Virginia law defines controlled
substances more broadly than federal law, his Virginia conviction does not trigger the
career-offender enhancement.
We disagree. Ward’s Virginia convictions for possession with the intent to
distribute heroin fall within the Guidelines’ categorical definition of a “controlled
substance offense.” So we hold that Ward’s two convictions under Va. Code § 18.2-248
each qualify as a “controlled substance offense” that may trigger the career-offender
enhancement, and we affirm.
2
I. Background
This case arose from a straightforward “buy-bust” operation. In 2017, an informant
bought 0.1645 grams of cocaine from Ward. Based on this controlled drug buy, Ward was
arrested and indicted by federal prosecutors. He pleaded guilty to the distribution of
cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).
This was not Ward’s first time selling drugs. In 2001, he was convicted in federal
court of possessing crack cocaine with the intent to distribute and sentenced to 84 months’
imprisonment. Within six months of release, Ward’s supervised release was revoked.
Then, within nine months of his next release, Ward was again arrested for two heroin
offenses in Virginia in violation of Va. Code § 18.2-248. He was convicted of both
offenses and released from imprisonment on those charges in 2014, less than three years
before the cocaine sale that would lead to this appeal.
Based on these prior offenses, a federal probation officer designated Ward a “career
offender” under § 4B1.1 of the Federal Sentencing Guidelines: Ward was at least 18 years
old when he committed this federal controlled substance offense in 2017, and he had “at
least two prior felony convictions of a controlled substance offense.” J.A. 159. 1 The
1
A defendant is “a career offender if (1) the defendant was at least eighteen years
old at the time the defendant committed the instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a crime of violence or a controlled substance
offense; and (3) the defendant has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). A defendant who is a
“career offender” under the Guidelines is assigned to Criminal History Category VI and
given offense levels at or near the statutory maximum penalty of the offense of the
conviction. See id.
3
career-offender designation did not impact Ward’s criminal-history category. But it did
increase his base offense level from 12 to 32. After credit for accepting responsibility,
Ward faced a Guidelines’ range of 151 to 188 months’ imprisonment, more than six times
the 24 to 30 months that Ward would have faced without the enhancement.
At sentencing, Ward objected to the career-offender designation. He conceded that
his prior federal conviction counted as a “controlled substance offense.” But he argued
that his two Virginia convictions were not predicate controlled substance offenses under
the Sentencing Guidelines.
The district court rejected Ward’s argument and found that Ward’s two prior
Virginia heroin convictions counted as “controlled substance offense[s]” triggering the
career-offender enhancement. The district court then granted in part Ward’s motion for a
downward departure from the Guidelines’ range and imposed a sentence of 10 years in
prison followed by 3 years of supervised release. Ward timely appealed.
II. Discussion
We review a district court’s sentencing decisions for abuse of discretion. United
States v. Torres-Reyes, 952 F.3d 147, 151 (4th Cir. 2020). In doing so, we consider both
the procedural and substantive reasonableness of a sentence. Id. Ward limits his appeal to
the former, arguing that, because the district court improperly designated him a career
offender, his sentence is procedurally unreasonable. See Gall v. United States, 552 U.S.
38, 51 (2007). Whether Ward’s Virginia convictions count as “controlled substance
offense[s]” that trigger the career-offender enhancement is a “legal issue we review de
novo.” United States v. Dozier, 848 F.3d 180, 182–83 (4th Cir. 2017).
4
We consider this question under the so-called “categorical approach.” This
approach is categorical in that we ask whether the offense of conviction—no matter the
defendant’s specific conduct—necessarily falls within the Guidelines’ description of a
“controlled substance offense.” To do so, we set aside the particulars of Ward’s actions
underlying his convictions, focusing instead on “the fact of conviction and the statutory
definition of the prior offense.” Id. at 183 (quoting United States v. Cabrera-Umanzor,
728 F.3d 347, 350 (4th Cir. 2013)). We then compare the elements of the prior offense
with the criteria that the Guidelines use to define a “controlled substance offense.” See
Shular v. United States, 140 S. Ct. 779, 783 (2020) (asking “whether the conviction meets
[the relevant] criterion”). 2
2
This approach is one of “two categorical methodologies.” Shular, 140 S. Ct. at
783. The other entails “‘a generic-offense matching exercise,’” when a court must come
up with a “generic” version of a crime, determining “the elements of ‘the offense as
commonly understood.’” Id. at 783–84 (citing Mathis v. United States, 136 S. Ct. 2243,
2247 (2016)). Then it compares those elements to those of the state offense. Id. at 784.
This second methodology is required for statutes that “refer[] generally to an offense
without specifying its elements.” Id. at 783; see, e.g., Esquivel-Quintana v. Sessions, 137
S. Ct. 1562, 1571 (2017) (identifying the “generic meaning of sexual abuse of a minor”);
Taylor v. United States, 495 U.S. 575, 598–99 (1990) (identifying the elements of “generic
burglary”).
Ward does not argue that we must apply this second categorical methodology.
Appellant Br. 3 (“The question in this case is not about the supposed ‘generic offense’ of
‘controlled substance offenses.’”). Nor could he. Since § 4B1.2(b) specifies the
requirements of a “controlled substance offense,” “no identification of generic offense
elements [is] necessary.” Shular, 140 S. Ct. at 783.
5
In Ward’s case, this approach requires us to identify the elements of the Virginia
law of conviction and the criteria the Federal Sentencing Guidelines use to define a
“controlled substance offense.” And we ask whether the two categorically match. 3
Ward was convicted of violating Virginia Code § 18.2-248, which makes it
“unlawful for any person to manufacture, sell, give, distribute, or possess with intent to
manufacture, sell, give or distribute a controlled substance or an imitation controlled
substance.” Ward does not dispute that the elements of a violation of § 18.2-248 require
proving that the defendant committed one of the actions—manufacture, sell, give,
3
As we ultimately find that Ward’s state offense categorically matches, we need not
address the alternative “modified categorical approach,” see Cucalon v. Barr, 958 F.3d
245, 251–53 (4th Cir. 2020); Bah v. Barr, 950 F.3d 203, 208–10 (4th Cir. 2020), which is
“a variant” of the “categorical approach.” Descamps v. United States, 570 U.S. 254, 257
(2013).
Chief Judge Gregory claims that, by failing to address that issue, we have “ignore[d]
our recent precedent and create[d] an entirely new framework that requires us to split from
several of our sister circuits,” Concurrence 18–19, and have “turn[ed] the modified
categorical approach into an exception to the categorical approach—not a tool,” id. at 23.
In doing so, Chief Judge Gregory mischaracterizes our use of the word “alternative” and
skates past the differences in the federal comparators reviewed in Bah and Cucalon. The
Supreme Court recently explained the “two categorical methodologies” in Shular, 140 S.
Ct. at 783. Since the Guidelines provision asks us “to determine not whether the prior
conviction was for a certain offense, but whether the conviction meets some other criterion,
. . . we simply ask[] whether . . . [Ward’s] prior conviction[] before us [meets] that
measure.” Shular, 140 S. Ct. at 783. If so, then we need not address the modified
categorical approach. See Cucalon, 958 F.3d at 250 (describing the modified categorical
approach as applying when the state law was not a categorical match); Bah, 950 F.3d at
206–07 (turning to the modified categorical approach after finding the statute covers
conduct not covered by the federal comparator); see also United States v. Allred, 942 F.3d
641, 649 (4th Cir. 2019) (applying the modified categorical approach where the
government correctly conceded that the conviction could not satisfy the categorical
approach).
6
distribute, or possess with intent to manufacture, sell, give, or distribute—with an identified
controlled substance. See Cucalon, 958 F.3d at 251.
The key question for our consideration is whether these elements categorically meet
the criteria that the Guidelines use to define a “controlled substance offense.” We interpret
the Sentencing Guidelines using our ordinary tools of statutory construction. United States
v. Rouse, 362 F.3d 256, 262 (4th Cir. 2004). And “[a]s in all statutory construction cases,”
we start with the plain text of the Guidelines and “‘assume that the ordinary meaning of
[the statutory] language’” controls. Marx v. General Revenue Corp., 568 U.S. 371, 376
(2013) (quoting Hardt v. Reliance Standard Life Insurance Co., 560 U.S. 242, 251 (2010));
see Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985).
Section 4B1.2(b) of the Guidelines defines a “controlled substance offense” as:
[A]n 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.
First, we note that only an “offense under federal or state law” may trigger the
enhancement. An “offense” is, of course, “a breach of law.” Offense, 10 Oxford English
Dictionary 724 (2d ed. 1989); Offense, Black’s Law Dictionary 1300 (11th ed. 2019) (“a
violation of the law; a crime”). The noun, “offense,” is then modified by a prepositional
phrase: “under federal or state law.” § 4B1.2(b). The preposition “under” means
“[b]eneath the rule or domination of; subject to.” Under, 18 Oxford English Dictionary
7
949 (2d ed. 1989). 4 So to satisfy the ordinary meaning of “offense,” there must be a
violation or crime “subject to” either “federal or state law.”
This “offense under federal or state law” must satisfy two criteria: (1) the offense
must be “punishable by imprisonment for a term exceeding one year” and (2) the federal
or state law must (a) prohibit the manufacture, import, export, distribution, or dispensing
of a controlled substance, or (b) prohibit the possession of a controlled substance with
intent to manufacture, import, export, distribute, or dispense. § 4B1.2(b).
The first criterion, “punishable by imprisonment for a term exceeding one year,”
requires the maximum sentence for the “offense” to be more than one year. To determine
whether the “offense” has a maximum sentence of more than one year, we look to possible
penalties for that offense as provided by the relevant “federal or state law” of conviction.
Virginia Code § 18.2-248 is punishable by imprisonment “for not less than five nor more
than 40 years” for the first conviction and up “to imprisonment for life or for any period
4
In his concurrence, Chief Judge Gregory agrees with this basic meaning: this
provision “necessarily refers to a set of substances subject to the control of some
government.” Concurrence 26. Even so he questions why we “primarily rely on
dictionaries . . . as authoritative sources on a text’s plain meaning.” Concurrence 27.
Dictionaries, like other interpretative tools, require careful use and healthy skepticism.
Even so, they are a common and useful interpretive tool. See Blakely v. Wards, 738 F.3d
607, 611 (4th Cir. 2013) (en banc) (“To interpret statutory language . . . we begin our
analysis with the plain language,” and, “[i]n beginning with the language itself, we
customarily turn to dictionaries for help in determining whether a word in a statute has a
plain or common meaning”) (internal quotations omitted). And here Chief Judge
Gregory’s own interpretation tracks the common dictionary definitions. Compare
Concurrence 26, with Black’s Law Dictionary 417 (11th ed. 2019) (Controlled Substance
is “any type of drug whose manufacture, possession, and use is regulated by law”). The
root of the Chief’s disagreement appears not to be our use of dictionaries to interpret the
text, but our reliance on the text itself.
8
not less than five years” for a second conviction. Thus, an offense under § 18.2-248
satisfies the first criterion.
The second criterion addresses certain prohibited acts, like the distribution of a
controlled substance. The prohibited actions follow their readily apparent meaning. See,
e.g., Distribution, 4 Oxford English Dictionary 868 (2d ed. 1989) (“[T]he action of dividing
and dealing out or bestowing in portions among a number of recipients; apportionment,
allotment.”); Distribution, Black’s Law Dictionary 597 (11th ed. 2019) (“The act or
process of apportioning or giving out.”). And the ordinary meaning of the object of the
prohibited actions, “controlled substance,” is “any type of drug whose manufacture,
possession, and use is regulated by law.” Controlled Substance, Black’s Law Dictionary
417 (11th ed. 2019) (emphasis added). 5
Here, the state law, Virginia Code § 18.2-248, satisfies this second criterion of
§ 4B1.2(b). First, consider the statute’s prohibited actions. Section 18.2-248 makes it
“unlawful for any person to manufacture, sell, give, distribute, or possess with intent to
manufacture, sell, give or distribute a controlled substance.” § 18.2-248(A). In one sense,
by excluding “import [or] export,” § 18.2-248’s prohibited actions are narrower than those
defined by § 4B1.2(b). But an offense that prohibits a narrower set of actions categorically
qualifies. See, e.g., Bah, 950 F.3d at 206. Although § 18.2-248 uses the terms “sell” and
5
See also Controlled, 3 Oxford English Dictionary 853 (2d ed. 1989) (“Held in
check, restrained, dominated.”); Substance, 17 Oxford English Dictionary 65 (2d ed. 1989)
(“A species of matter of a definite chemical composition.”).
9
“give,” where § 4B1.2(b) does not, they fall within the plain meaning of “distribution” or
“dispensing” in § 4B1.2(b). 6
Second, consider the objects of those prohibited actions. See Va. Code § 54.1-3401
(A “controlled substance” under Virginia law is defined as “a drug, substance, or
immediate precursor in Schedules I through VI of this chapter” and “includes a controlled
substance analog that has been placed into Schedule I or II by the Board [of Pharmacy]
pursuant to the regulatory authority in subsection D of § 54.1-3443”). 7 The state has not
restricted itself to regulating only those substances listed on the federal drug schedules.
Instead, the offense identifies those substances that are “regulated” under Virginia law,
which has its own drug schedules. So a conviction under § 18.2-248 categorically satisfies
6
Start with the terms in the Sentencing Guidelines. The verb “distribute” means
“[t]o deal out or bestow in portions, or shares among a number of recipients; to allot or
apportion as his share to each person of a number.” Distribute, 4 Oxford English Dictionary
867 (2d ed. 1989). To “dispense” similarly means “[t]o mete out, deal out, distribute.”
Dispense, 4 Oxford English Dictionary 809 (2d ed. 1989).
Next, take the terms in the Virginia statute. When a person gives an item, he is
“mak[ing] another the recipient of [the item] (something that is in the possession, or at the
disposal, of the subject).” Give, 6 Oxford English Dictionary 535 (2d ed. 1989). And when
a person sells an item, he is also “giv[ing] up or hand[ing] over (something) to another
person for money (or something that is reckoned as money); esp[ecially] to dispose of
(merchandise, possessions, etc.) to a buyer for a price.” Sell, 14 Oxford English Dictionary
935 (2d ed. 1989).
So when a person sells heroin to another person for cash, he receives the money and
gives, distributes, and dispenses the drug to the paying customer.
7
Virginia Code § 18.2-247(A) specifies that the term “controlled substances” refers
to the Virginia Drug Control Act, § 54.1-3400 et seq.
10
the second criterion of § 4B1.2(b), just as it does the first. And since both criteria are met,
a conviction under § 18.2-248 is a “controlled substance offense” under § 4B1.2(b). 8
Despite the plain language of § 4B1.2(b), Ward argues that a prior state offense
qualifies as a “controlled substance offense” only where the state offense defines
“controlled substance” just as federal law does in the Controlled Substances Act, 21 U.S.C.
§ 802(6). In Ward’s view, because Virginia law prohibits a broader set of substances than
federal law, Virginia Code § 18.2-248 is overbroad and fails to categorically qualify as a
“controlled substance offense.” See Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015).
We disagree. As described above, Ward’s argument ignores the plain meaning of
§ 4B1.2(b). A predicate offense arises under either “federal or state law” if it satisfies the
two criteria: (1) the offense is punishable by at least one year’s imprisonment; and (2) the
law prohibits the manufacture, import, export, distribution, or dispensing of a controlled
substance (or the possession with the intent to do so). And, as we described, to determine
whether the offense meets the first criterion, we look to the law of the jurisdiction of the
8
To illustrate, analyzing Ward’s 2001 federal crack-cocaine conviction—which the
parties agree is a “controlled substance offense” under the Guidelines—requires asking
whether the same two criteria are met: (1) an offense punishable by imprisonment for more
than one year; and (2) arising under a federal or state law prohibiting certain actions—like
distribution of a controlled substance. And we would do so by looking to the federal law
defining his 2001 federal conviction. Ward’s prior federal offense arises under 21 U.S.C.
§ 841(a)(1), which is punishable by imprisonment for more than one year (and therefore
categorically satisfies the first criterion). See id. § 841(b). And § 841(a)(1) categorically
satisfies the second criterion, prohibiting the same actions with the same object enumerated
in § 4B1.2. See id. § 841(a)(1) (unlawful “to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute, or dispense, a controlled substance”); id.
§ 802(6) (“The term ‘controlled substance’ means a drug or other substance, or immediate
precursor, included in schedule I, II, III, IV, or V of part B of this subchapter” in the federal
Controlled Substances Act.).
11
conviction. We do not look to an analogous federal statute to determine whether a state
offense is punishable by more than one year in prison. Nor do we look to a federal statute
to determine whether the offense satisfies the second criterion. Where a defendant is
convicted under a state statute, we look to see how the state law defining that offense
defines the punishment and the prohibited conduct (e.g., distribution of a controlled
substance).
We have rejected an argument much like Ward’s before, refusing to limit § 4B1.2(b)
to state offenses that define substances just as federal law defines them. In United States
v. Mills, the district court found that a state conviction for the “possession with intent to
distribute look-a-like controlled dangerous substances” under Maryland law qualified as a
“controlled substances offense.” 485 F.3d 219, 222 (4th Cir. 2007). Section 4B1.2
includes as a “controlled substance offense” an “offense under federal or state law
. . . that prohibits . . . the possession of a controlled substance (or counterfeit substance)
with intent to . . . distribute.” § 4B1.2(b) (emphasis added). Mills argued that only a state
offense prohibiting the distribution of “counterfeit substances” as defined under the federal
Controlled Substances Act, 21 U.S.C. § 802(7), qualified as a predicate offense.
We rejected Mills’s argument that we must look to the federal Controlled
Substances Act’s definition—a reference that is notably absent from this Guidelines
provision. 485 F.3d at 223. Instead, we concluded that the ordinary meaning of
“counterfeit substance” controlled: a “substance ‘made in imitation of’ a controlled
substance is a ‘counterfeit substance.’” Id. at 222 (citing 3 Oxford English Dictionary 1027
(2d ed. 1989)). And we then looked to the Maryland law under which Mills was convicted.
12
Id. In doing so, we held that Maryland’s look-a-like offense categorically satisfied this
ordinary meaning: the Maryland statute “punishes persons who distribute, attempt to
distribute, or possess with intent to distribute a non-controlled substance ‘made in
imitation’ of a controlled dangerous substance.” Id. The same is true here. 9
And the structure of the Guidelines confirms this conclusion. The Sentencing
Commission devised “a veritable maze of interlocking sections and statutory cross-
references.” Id. at 219. For example, § 2D1.1 gives the framework for sentencing drug-
related offenses, setting the offense level based on different criteria. And those criteria
include explicit references to federal statutes and other federal Guidelines provisions. See
U.S.S.G. § 2D1.1 (a), (b)(3), (b)(16), (b)(18), (d)(1); see also id. § 2D1.1 (application note
6) (defining “‘analogue,’ for purposes of this guideline, [to] ha[ve] the meaning given the
term ‘controlled substance analogue’ in 21 U.S.C. § 802(32)”).
Section 4B1.2, the provision we address today, also explicitly references other
Guidelines provisions and federal statutes. That provision “defines ‘crime of violence’ to
include unlawful possession of a firearm as described in 26 U.S.C. § 5845(a).” Mills, 485
F.3d at 223 (emphasis added); see also U.S.S.G. § 4B1.2 (application note 1). But § 4B1.2
refers neither to the federal definition of a “controlled substance” nor to the federal drug
schedules. Yet we know the Commission understood how to cross-reference other federal
9
While Mills never explicitly announced that it was applying the “categorical
approach,” it applied the methodology underlying that approach: We identified the
criterion for a “controlled substance offense” in § 4B1.2(b) and “simply asked whether . .
. [Mills’s] prior conviction[] before us met that measure.” Shular, 140 S. Ct. at 783
(describing the categorical approach); Mills, 485 F.3d at 222.
13
provisions and definitions. See Mills, 485 F.3d at 223. If the Commission had intended
for the federal definition of “controlled substance” to apply for the career-offender
enhancement, “it had only to say so.” Id. at 223. Like the Seventh Circuit, “[w]e see no
textual basis to engraft the federal Controlled Substances Act’s definition of ‘controlled
substance’ into the career-offender guideline.” United States v. Ruth, __ F.3d __, 2020 WL
4045885, at *10 (7th Cir. July 20, 2020).
Ward asks us to depart from Mills and apply the Jerome presumption. Under this
presumption, we “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 v. United States, 318 U.S. 101, 104 (1943). “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.” Id.We have cited this presumption when interpreting federal statutes, as has the
Supreme Court. See, e.g., Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30,
43 (1989) (interpreting the term, “domicile,” in the Indian Child Welfare Act, 25 U.S.C. §
1911); Federal Reserve Bank of Richmond v. City of Richmond, 957 F.2d 134, 135 (4th
Cir. 1992) (interpreting the phrase, “taxes upon real estate,” in 12 U.S.C. § 531). 10 The
10
Because the Jerome presumption is overcome here, we need not determine
whether the presumption for Acts of Congress extends to Guidelines promulgated by the
U.S. Sentencing Commission (“an independent commission in the judicial branch of the
United States,” 18 U.S.C. § 991(a)). See United States v. Townsend, 897 F.3d 66, 71 (2d
Cir. 2018) (applying the Jerome presumption to the Guidelines because, “[a]lthough not a
(Continued)
14
Jerome presumption, however, is only a presumption; it gives way to “a plain indication”
that the application of federal law depends on state law. Jerome, 318 U.S. at 104; see also
Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 119 (1983). In other words,
“‘[t]here are, of course, instances in which the application of certain federal [law] may
depend on state law. . . . But this is controlled by the will of Congress.’” N.L.R.B. v. Natural
Gas Utility District, 402 U.S. 600, 603 (1971) (quoting N.L.R.B. v. Randolph Electric
Membership Corp., 343 F.2d 60, 62 (4th Cir. 1965)).
Assuming the Jerome presumption should be applied to Guidelines promulgated by
the Sentencing Commission, we are confident that it is overcome here. Section 4B1.2(b)
disjunctively refers us to state law in defining the offense: “The term ‘controlled substance
offense’ means an offense under federal or state law.” § 4B1.2(b) (emphasis added). Thus,
the Commission has specified that we look to either the federal or state law of conviction
to define whether an offense will qualify. And this directive is confirmed by the structure
of the Sentencing Guidelines. See Mills, 485 F.3d at 223; see also Jerome, 318 U.S. at 106(“[W]hen Congress has desired to incorporate state laws in other federal penal statutes, it
has done so by specific reference or adoption.”). In the face of these clear textual and
structural expressions, we cannot now cabin the career-offender enhancement as Ward
suggests. Doing so is “beyond our purview as a court and properly remains the domain of
federal statute, the Guidelines are given the force of law . . . and arguably have an even
greater need for uniform application”).
15
either the Sentencing Commission or the Congress.” United States v. Maroquin-Bran, 587
F.3d 214, 217 (4th Cir. 2009). 11
Thus, Ward’s two convictions under Virginia Code § 18.2-248 categorically qualify
under the ordinary meaning of “controlled substance offense” in §4B1.2(b). And the
district court correctly counted those convictions as predicate offenses for the career-
offender enhancement. 12
11
Chief Judge Gregory points us to the commentary accompanying § 4B1.2(b) as
another “reason[] to think that ‘controlled substance’ does not incorporate substances
solely controlled under state law.” Concurrence 32. Although the commentary refers
solely to federal statutes, it is not an exhaustive list, as Chief Judge Gregory concedes. Nor
could it be. Limiting “controlled substance offense[s]” to those under federal law would
render the phrase “under . . . state law” superfluous. § 4B1.2(b). See Yates v. United States,
574 U.S. 528, 543 (2015) (“We resist a reading of § 1519 that would render superfluous an
entire provision passed in proximity as part of the same Act.”); United States v. Ivester, 75
F.3d 182, 185 (4th Cir. 1996) (“[W]e are reluctant to interpret statutory provisions so as to
render superfluous other provisions within the same enactment.”).
We refuse to adopt such an interpretation that ignores the plain language of the
Guidelines, which classifies “an offense under federal or state law” as a “controlled
substance offense.” § 4B1.2(b) (emphasis added). Such an interpretation “makes no sense
in the context of the career offender Guidelines.” Mills, 485 F.3d at 224. Despite the
general goal of “reasonable uniformity in sentencing,” Concurrence 28–29 (quoting
U.S.S.G. ch. 3, pt. A1), the career-offender enhancement expressly depends on state law.
In doing so, it treats offenders in different states differently. To the extent that one looks
for “purpose,” the career-offender enhancement is designed “to provide longer sentences
for persons who are repeatedly convicted of violent or drug-related offenses” under either
federal or state law. Mills, 485 F.3d at 224 (citing § 4B1.1 (background)). See generally
Joshua M. Divine, Statutory Federalism and Criminal Law, 106 VA. L. REV. 127 (2020).
12
The Second Circuit has held to the contrary: that “federal law is the interpretative
anchor to resolve the ambiguity at issue here,” the meaning of “controlled substance” in
§ 4B1.2(b). Townsend, 897 F.3d at 71. But Townsend’s singular focus on the phrase,
“controlled substance,” fails to acknowledge that the question is whether a defendant’s
prior conviction is an “offense” that meets the criteria set forth in § 4B1.2(b): (1) the
offense has a maximum imprisonment of more than one year; and (2) arises under a law
prohibiting the manufacture, distribution, or dispensing of a controlled substance or the
(Continued)
16
* * *
After Ward pleaded guilty to distributing cocaine, the district court applied the
career-offender enhancement based on his prior “controlled substance offense”
convictions. That was a correct application of §§ 4B1.1 and 4B1.2. The judgment of the
district court is therefore
AFFIRMED.
possession of a controlled substance with the intent to manufacture, distribute, or dispense.
The context and placement of the phrase, “controlled substance,” as part of the description
of the criteria for “an offense under federal or state law,” removes any ambiguity. Id.
17
GREGORY, Chief Judge, concurring in judgment:
Earlier this year, we held that Virginia Code § 18.2–250, the section governing
possession of controlled substances, was “divisible by substance” and applied the modified
categorical approach to conclude that a Virginia possession conviction was a predicate
controlled substance offense. Bah v. Barr, 950 F.3d 203 (4th Cir. 2020). A few months
later, following the divisibility analysis in Bah, we held that “the identity of the prohibited
substance is an element of Virginia Code § 18.2–248,” and applied the modified categorical
approach to conclude that a Virginia distribution conviction was a predicate controlled
substance offense. Cucalon v. Barr, 958 F.3d 245, 252 (4th Cir. 2020). Collectively, these
cases began the process of providing a straightforward framework for analyzing whether
controlled substance offenses in Virginia may serve as predicate offenses during
sentencing: apply the modified categorical approach and permit the state conviction to
serve as a predicate offense if the Shepard documents show that the identity of the
substance was also illegal under federal law.
Not anymore. Rather than following Bah and Cucalon to conclude that Ward’s
heroin conviction under Virginia Code § 18.2–248 satisfies the modified inquiry and, thus,
qualifies as a controlled substance offense, the majority ignores our recent precedent and
creates an entirely new framework that requires us to split from several of our sister
18
circuits. 1 This framework is unnecessary and unjustified. 2 Thus, while I agree with the
judgment reached today, I cannot follow the majority in the path it takes to get there.
1
“Absent an en banc overruling or a superseding contrary decision of the Supreme
Court, we, as a circuit panel, are bound by these precedents.” United States v. Prince-
Oyibo, 320 F.3d 494, 498 (4th Cir. 2003) (internal citation omitted).
2
Not only does the majority err in not applying the modified categorical approach—
the majority also errs in the version of the categorical methodology that applies here. The
majority correctly notes that after this case was argued, the Supreme Court clarified that
there are “two categorical methodologies.” Maj. Op. at 5 n.2 (citing Shular v. United
States, 140 S. Ct. 779, 783 (2020)). But then, consistent with its general approach, the
majority limits the reach of Ward’s argument based on a single, isolated sentence from
Ward’s Reply Brief: “The question in this case is not about the supposed ‘generic offense’
of ‘controlled substance’ offenses.” See Maj. Op. at 5 n.2 (quoting Pet. Rep. Br. at 3).
From this, the majority concludes that Ward is not asking that we apply the generic
matching exercise common in many cases, but instead asking that we apply an approach
that focuses on conduct—i.e. what the Supreme Courts calls “the Kawashima categorical
approach.” There are several reasons we cannot draw this inference.
First, we cannot expect Ward to have had the precognition to predict the Supreme
Court’s recent sorting of the categorical approaches.
Second, the quoted language from Ward’s brief is raised in the context of
emphasizing that the primary dispute in this case is about the meaning of “controlled
substance” and not “controlled substance offense.” Thus, a few lines earlier, Ward writes:
“As an initial matter, the phrase ‘controlled substance’ does not refer to an offense at all,
generic or otherwise.” The point of Ward’s statement is to point out that “controlled
substance,” which is undefined under the Guidelines, should be defined by the federal
schedules. And the categorical approach should be used to determine whether the state
schedule matches the federal schedules when determining if the state offense may serve as
an adequate predicate offense under the Guidelines. See, e.g., United States v. Townsend,
897 F.3d 66, 71 n.4, 72–74 (2d Cir. 2018) (explaining that we need not “decipher the
generic definition” to compare prior state convictions to their corresponding federal crime).
Third, Ward does not appeal to Kawashima at all. Indeed, Kawashima is not cited
in either of Ward’s briefs. Instead, Ward consistently asks us to follow the Supreme
Court’s approach in Esquivel-Quintana and Taylor, the two cases that the majority cites as
paradigmatic examples of applying the generic categorical approach. See Maj. Op. at 5 n.2
(citing examples of cases applying the “second methodology”); see also, Pet. Br. at 16
(Continued)
19
I.
It doesn’t take much to resolve this case. We previously held that the same statute
at issue here, Virginia Code § 18.2–248, is divisible by the identity of the controlled
substance. Cucalon, 958 F.3d at 248 (“Upon our review, we conclude that Virginia Code
§ 18.2–248 is divisible by prohibited substance.”). And our precedent tells us that, when
analyzing whether something qualifies as a predicate offense under the Guidelines, the
(“But that approach—deferring to common use of language and therefore states’
definitions for a federal sentencing enhancement—was rejected by the Supreme Court in
Taylor [] and violates well-established principles of statutory construction.”); Pet. Rep. Br.
at 9 (“This Court should reject the ‘everyday meaning’ argument here just as soundly as
the Supreme Court did in Esquivel-Quintana.”).
Finally, the application of the conduct-based approach is unlikely here given the
language of the Guidelines. It is true that, as in Shular, the dispute is over whether a state
drug offense ought to serve as a predicate offense for enhancement. But a distinguishing
feature of conduct-based approaches is that they “speak[] of activities a state-law [] offense
‘involves.’” Shular, 140 S. Ct. at 785; see also, Kawashima v. Holder, 565 U.S. 478, 483–
84 (2012) (noting the statutory phrase “refers more broadly to offenses that ‘involv[e]’
fraud or deceit—meaning offenses with elements that necessarily entail fraudulent or
deceitful conduct,” and is “not limited to offenses that include fraud or deceit as formal
elements”). As the Supreme Court states, “by speaking of activities a state-law drug
offense ‘involv[es],’ § 924(e)(2)(A)(ii) suggests that the descriptive terms immediately
following the word ‘involving’ identify conduct.” Shular, 140 S. Ct. at 785. But “the word
‘is’ indicates a congruence between ‘crime’ and the terms that follow, terms that are also
crimes.” Id. Like the word “is,” the word “means” in § 4B1.2(b) indicates congruence
between an offense and the terms that follow. Thus, it would be unnatural to read § 4B1.2
as identifying conduct. Shular does not alter our precedent requiring that we match the
elements of state drug offenses to their federal counterpart in these cases where the
Guidelines indicate congruence. Indeed, we have stated that this is the correct application
of the categorical approach in post-Shular drug cases. See, e.g., Cucalon, 958 F.3d at 250
(“Under this framework, we compare the federal definitions of ‘drug trafficking crime’ and
crime ‘relating to a controlled substance’ to the elements of the relevant state offense. If
the elements of the state offense ‘correspond in substance to the elements’ of the federal
definition, without consideration of the individual’s underlying conduct, the state
conviction is a categorical ‘match’ to the federal definition. (internal citations omitted)).
20
threshold inquiry is to determine whether the categorical approach or the modified
categorical approach is applicable. See United States v. Allred, 942 F.3d 641, 647 (4th Cir.
2019) (“At the outset, we must determine which of the two modes of analysis the Supreme
Court has approved in this context applies to the instant case. Specifically, we must choose
between the ‘categorical approach’ and the ‘modified categorical approach.’”). How do
we know which approach is warranted? We look at the statute at issue. The “‘first task’
is ‘to determine whether its listed items are elements,’ thus rendering the statue divisible,
‘or means,’ thus rendering it indivisible.” Id. at 649 (quoting Mathis v. United States, 136
S. Ct. 2243, 2256 (2016)). “Where the criminal statute at issue is indivisible . . . we are
bound to apply the categorical approach.” Id. at 647. “Alternatively, the modified
categorical approach applies where the prior conviction at issue is for violation of a
‘divisible’ statute.” Id. at 648.
Importantly, the modified categorical approach is not an exception to the categorical
approach—that is, it is not what one turns to when the categorical approach fails. See
Descamps v. United States, 570 U.S. 254, 263 (2013) (“The modified approach thus acts
not as an exception, but instead as a tool.”). Rather, the approach “merely helps implement
the categorical approach when a defendant was convicted of violating a divisible statute.”
Id. Thus, “[c]ourts examining a divisible statute employ the ‘modified categorical
approach,’ which entails an examination of a ‘limited class of documents . . . to determine
what crime, with what elements, a defendant was convicted of.’” Bah, 950 F.3d at 206
(internal citations omitted). Its application here is straightforward. Because our precedent
tells us Virginia Code § 18.2–248 is divisible by substance, we look to the Shepard
21
documents to determine that Ward was convicted of a felony heroin offense under the
statute as an adult. Since heroin is also a substance controlled under federal law, Ward’s
conviction satisfies the modified categorical inquiry. 3 Case closed.
II.
So how does the majority manage to evade the framework set by our precedent? Its
recognition of Bah and Cucalon comes in a footnote, where the majority appears to
acknowledge that those cases apply the modified categorical approach in similar
circumstances. Maj. Op. at 6 n.3. It is true that Bah and Cucalon addressed the Virginia
drug statute in the context of the Immigration and Nationality Act, not the Guidelines. But
that only changes what we are comparing the divisible statute against—it does not change
the divisibility of the statute. Since we are starting with a divisible statute, our analysis
calls for the modified categorical approach. Put differently, we noted in Bah and Cucalon
that the identity of the controlled substance is an element of a Virginia Code § 18.2–248
offense. And since the categorical approach requires us to compare elements, the identity
of the controlled substance ought to be part of what we compare when we analyze offenses
under Virginia Code § 18.2–248. By not applying the modified categorical approach, the
3
See United States v. Sanchez-Garcia, 642 F.3d 658, 661–62 (8th Cir. 2011)
(applying the modified categorical approach to determine whether a state conviction was a
“controlled substance offense” under the Guidelines); see also United States v. Leal-Vega,
680 F.3d 1160, 1166 (9th Cir. 2012) (applying the modified categorical approach to
determine whether a state conviction was a “drug trafficking offense” under the
Guidelines); United States v. Gomez-Alvarez, 781 F.3d 787, 793 (5th Cir. 2015) (same).
22
majority ignores our previous holding that the identity of a drug is an element of a Virginia
Code § 18.2–248 offense.
The majority’s explanation for why the modified categorical approach does not
apply here is brisk. The majority declares: “As we ultimately find that Ward’s state offense
categorically matches, we need not address the alternative ‘modified categorical
approach.’” Id. (citing Bah and Cucalon). Okay. But that turns the modified categorical
approach into an exception to the categorical approach—not a tool. Cf. Descamps, 570
U.S. at 263 (“The modified approach thus acts not as an exception, but instead as a tool.”).
This brief statement from the majority suggests that, in analyzing whether something is a
predicate offense, courts may get two bites at the apple: try to apply the categorical
approach and—only if that test fails—move on to the modified categorical approach.
This is a mistake. Our precedent is quite clear that once we determine that a statute
is divisible, the modified categorical approach applies. See, e.g., Bah, 950 F.3d at 206
(“Courts examining a divisible statute employ the ‘modified categorical approach.’”); id.
at 207 (“Thus, [t]he first task for a . . . court faced with an alternatively phrased statute is
. . . to determine whether its listed items are elements or means. If they are elements, the
court applies the modified categorical approach.”) (internal citations omitted); Allred, 942
F.3d at 652 (“Because § 1513(b)(1) sets forth alternative elements by which witness
retaliation may be committed and is thus divisible, we must apply the modified categorical
approach to determine which of the alternative crimes formed the basis for [Petitioner]’s
conviction.”) (emphasis added). And this makes sense. A divisible statute “lists multiple,
alternative elements, and so effectively creates ‘several different . . . crimes.’” Descamps,
23
570 at 264 (quoting Nijhawan v. Holder, 557 U.S. 29, 41 (2009)). By applying the
categorical approach to a divisible statute, one lumps together those different crimes when
effectuating the categorical analysis. Stating that we “need not” apply the “alternative”
modified categorical approach because the categorical approach is sufficient puts the cart
before the horse. The divisibility of a statute is our starting point in the categorical
analysis—not where we turn when there’s nothing left. Because Virginia Code § 18.2–250
sets forth alternative elements by which a controlled substance offense may be committed
and is thus divisible, “we must apply the modified categorical approach to determine which
of the alternative crimes formed the basis for [Ward]’s conviction.” Allred, 942 F.3d at
652 (emphasis added). 4
4
Replying to this point, the majority does not deny that our prior decisions held that
the identity of the drug is an element of Virginia Code § 18.2–248. Rather, the majority
doubles down and repeats that, despite dealing with a divisible statute, “we need not
address the modified categorical approach.” Maj. Op. at 6 n. 3. Unless the majority is
suggesting that the modified categorical approach has no part in the conduct-based version
of the categorical approach the majority applies, it is tough to see the support for this
position. To the extent that Bah and Cucalon suggests that we only turn to the modified
categorical approach when the categorical approach fails, it is inconsistent with our prior
precedent that we must apply the categorical approach to a divisible statute. Since Allred
precedes these cases, it is the controlling law of our circuit. See McMellon v. United States,
387 F.3d 329, 333 (4th Cir. 2004) (en banc) (“When published panel opinions are in direct
conflict on a given issue, the earliest opinion controls, unless the prior opinion has been
overruled by an intervening opinion from this court sitting en banc or the Supreme Court.”).
It’s one thing to say that the modified approach would not make a difference here, it’s quite
another to say it does not apply. The divisibility of Virginia Code § 18.2–248 compels us
to apply the modified categorical approach.
24
III.
The failure to apply the modified categorical analysis when our precedent demands
its application is, in itself, enough to reject the majority’s approach. Still, the majority
compounds its error by misapplying the precedent it relies on when creating its new
framework. When examining whether a controlled substance offense is a categorical match
under Va. Code § 18.2–248 and the Guidelines, the majority depends heavily on our prior
decision in United States v. Mills, 485 F.3d 219 (4th Cir. 2007), to support its introduction
of the “plain meaning approach” to the categorical analysis. See Maj. Op. at 11–14. But
this raises a few issues. First, Mills never purports to use the categorical approach—indeed,
the phrase “categorical approach” is entirely absent from the opinion. Thus, incorporating
Mills’s plain meaning approach into the categorical analysis is unsupported. The majority,
that is, fails to show how Mills provides the footing for its new framework, which purports
to apply the plain meaning and categorical approach to determine the scope of a “controlled
substance offense.”
Second, the phrase “counterfeit substance,” which was the subject in Mills, is easily
distinguishable from “controlled substance.” As some of our sister circuits have noted,
“counterfeit” has an ordinary, independent meaning, whereas “controlled” does not. See,
e.g., Leal-Vega, 680 F.3d at 1166–67 (9th Cir. 2012) (“The word ‘counterfeit’ has a normal,
everyday meaning that we all understand[.] The same is not true of the word
‘controlled.’”). The adjective “counterfeit” ordinarily means “[m]ade in imitation of
something else . . . not genuine.” Mills, 485 F.3d at 222. Hence, we can define “counterfeit
substance” independent of how the word may be defined in a specific state or federal
25
statute. Leal-Vega, 680 F.3d at 1167. For this reason, “various courts have defined this
term to include two components based on plain meaning: made (1) in imitation and (2)
with intent to deceive.” Id. (collecting cases). It makes sense to adopt the ordinary
meaning of “counterfeit,” as we did in Mills, because it is a nontechnical word whose
ordinary meaning is easily discernible.
“Controlled,” however, is a term of art that necessarily refers to a set of substances
subject to the control of some government. See Gonzales v. Oregon, 546 U.S. 243, 259
(2006) (“Control is a term of art in the [Controlled Substances Act].”); cf. Smith v. United
States, 508 U.S. 223, 241 (1993) (Scalia, J., dissenting) (“In the search for statutory
meaning, we give nontechnical words and phrases their ordinary meaning.”) (emphasis
added). As a passive past participle, the word requires us to answer the question:
controlled by whom? The majority attempts to provide an answer to this question by
stating “the ordinary meaning” of “‘controlled substance,’ is ‘any type of drug whose
manufacture, possession, and use is regulated by law.’” Maj. Op. at 8 (quoting Controlled
Substance, BLACK’S LAW DICTIONARY (11th ed. 2019)). But that begs the question: which
law? The choice is between a uniform federal definition on the one hand; or individual,
inconsistent state definitions on the other.
One cannot appeal to any plain meaning of the term “controlled” to resolve this
question. Unlike “counterfeit,” which any ordinary person would understand to mean
“fake,” the word “controlled” does not stand on its own. Because Mills never purports to
use the categorical approach, and the phrase “controlled substance” does not have a plain
meaning, Mills does not provide the necessary support for the majority’s plain meaning
26
analysis under the categorical approach. 5 Accordingly, I cannot accept the majority’s
reliance on Mills to support its new framework.
IV.
But let’s meet the majority halfway and assume we can use the basic tools of
statutory interpretation to figure out the plain meaning of “controlled substance.” Still, the
majority makes several mistakes in its interpretive process. For starters, the majority
appears to primarily rely on dictionaries when determining the “plain meaning” of the text.
See Maj. Op. at 5–10 (using dictionary definitions to discern the plain meaning of the
Guidelines). But the problem with treating dictionaries as authoritative sources on a text’s
plain meaning is well-documented. See, e.g., United States v. Costello, 666 F.3d 1040,
1043 (7th Cir. 2012) (Posner, J.) (explaining why “dictionaries must be used as sources of
statutory meaning only with great caution”); Cabell v. Markham, 148 F.2d 737, 739 (2d
Cir. 1945) (Hand, J.) (“Of course it is true that the words used, even in their literal sense,
5
To see that Mills is inapposite, one need only look at several of our sister circuits
that have adopted the plain meaning approach of “counterfeit,” but, when construing
“controlled substance,” have adopted the federal definition. Compare United States v.
Robertson, 474 F.3d 538, 540–41 (8th Cir. 2007) (adopting plain meaning of
“counterfeit”), with Sanchez-Garcia, 642 F.3d at 661 (8th Cir. 2011) (determining whether
a state conviction was a controlled substance offense under U.S.S.G. § 4B1.2(b) by asking
whether the state conviction was for a drug listed in the federal schedules); compare also
United States v. Crittenden, 372 F.3d 706, 707–10 (5th Cir. 2004) (applying plain meaning
of “counterfeit”), with United States v. Gomez-Alvarez, 781 F.3d 787, 793 (5th Cir. 2015)
(noting that under U.S.S.G. § 2L1.2, which takes the meaning of “controlled substance
offense” given in § 4B1.2 and its commentary, “the government must establish that the
substance underlying that conviction is covered by the CSA”).
27
are the primary, and ordinarily the most reliable, source of interpreting the meaning of any
writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a
mature and developed jurisprudence not to make a fortress out of the dictionary.”)
(emphasis added); State v. Rasabout, 356 P.3d 1258, 1271–90 (Utah 2015) (Lee, Assoc.
C.J., concurring) (describing the problems with relying on a dictionary to discern the
meaning of a statute and endorsing a “corpus linguistic” analysis, which looks at real-world
examples). 6 Therefore, even if “controlled substance offense” did have a plain meaning,
it is doubtful that the majority’s overreliance on dictionary definitions would be an
adequate way to discern it. Providing a few dictionary definitions of the words
“controlled,” “substance,” and “offense,” is not dispositive of the meaning of “controlled
substance offense” under the Guidelines. Cf. Yates v. United States, 574 U.S. 528, 538
(2015) (“[A]lthough dictionary definitions of the words ‘tangible’ and ‘object’ bear
consideration, they are not dispositive of the meaning of ‘tangible object’ in § 1519.”).
In addition, the majority seems to selectively avoid applying other tools of statutory
interpretation that are also instructive. Take the purpose of the Guidelines for example.
Among the goals of the Guidelines is to create “reasonable uniformity in sentencing by
6
See also Frank H. Easterbrook, Text, History, and Structure in Statutory
Interpretation, 17 HARV. J.L. & PUB. POL’Y 61, 67 (1994) (“‘Plain meaning’ as a way to
understand language is silly. In interesting cases, meaning is not ‘plain’; it must be
imputed; and the choice among meanings must have a footing more solid tha[n] a
dictionary—which is a museum of words, an historical catalog rather than a means to
decode the work of legislatures.”) (emphasis added); A. Raymond Randolph, Dictionaries,
Plain Meaning, and Context in Statutory Interpretation, 17 HARV. J.L. & PUB. POL’Y 71,
72 (1994) (“Yet citing to dictionaries creates a sort of optical illusion, conveying the
existence of certainty—or “plainness”—when appearance may be all there is.”).
28
narrowing the wide disparity in sentences imposed for similar criminal offenses committed
by similar offenders.” U.S.S.G. ch. 3, pt. A1. That is, the federal Guidelines do not want
courts to treat someone from Virginia more favorably than someone from West Virginia
simply because they were lucky enough to commit the conduct on the right side of the
border. Thus, in seeking uniformity, we have stated that “[o]ur precedent offers no basis
for analyzing the laws of different sovereigns under different standards.” United States v.
McCollum, 885 F.3d 300, 306 (4th Cir. 2018).
This goal of uniformity is the reason many of our sister circuits have applied the
Jerome presumption to the construction of the Guidelines. See United States v. Savin, 349
F.3d 27, 34 (2d Cir. 2003) (collecting cases). Under this presumption, “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 v.
United States, 318 U.S. 101, 104 (1943) (emphasis added). This is because “the application
of federal legislation is nationwide and . . . the federal program would be impaired if state
law were to control.” Id. (internal citations omitted). Indeed, since “the administration of
criminal justice under our federal system has rested with the states . . . [w]e should be
mindful of that tradition in determining the scope of federal statutes defining offenses
which duplicate or build upon state law.” Id. at 105. Where, as here, there is ambiguity
on how to interpret the Guidelines, federal law must be our interpretive anchor. See
Townsend, 897 F.3d at 69 (applying the Jerome presumption to resolve the ambiguity of
the phrase “controlled substance” in the Guidelines).
29
The majority is, of course, aware of all of this. Departing from the reasoning of
other circuits, the majority sidesteps the Jerome presumption by declaring the language of
the Guidelines makes it obvious that the federal definition of “controlled substance” does
not apply. Maj. Op. at 13–14. In the majority’s view, that the Guidelines “disjunctively
refer[] us to state law in defining the offense” is proof that “the Commission has specified
that we look to either the federal or state law of conviction to define whether an offense
will qualify.” Maj. Op. at 15. “In the face of these clear textual and structural expressions,”
the majority continues, “we cannot now cabin the career-offender enhancement.” Maj. Op.
at 15.
But the Guidelines’ language is not as clear as the majority makes it out to be. The
text of Section 4B1.2(b) of the Guidelines reads as follows:
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.
The dispute here is whether the “controlled substance” at issue refers to substances
controlled solely under state law. The dispute is not whether a state law offense could
serve as a predicate controlled substance offense under § 4B1.2(b). Thus, I agree with the
majority that the Commission’s reference to state law means that we look to either the
federal or state law of conviction to determine whether an offense will qualify. Indeed,
that is why we look to Ward’s conviction under Virginia Code § 18.2–250 to see if it can
30
serve as a predicate offense. If “or state law” were written out of the Guidelines, then no
state conviction would be able to trigger enhancement.
But the majority’s explanation for why the Guidelines should be read as clearly
incorporating state law definitions of “controlled substance” does not hold up. To
demonstrate clarity, the majority focuses on “[t]he context and placement of the phrase,
‘controlled substance,’” asserts that it is part of “the description of the criteria for ‘an
offense under federal or state law,’” and concludes that this “removes any ambiguity.”
Maj. Op. at 16-17 n.12. That doesn’t resolve the issue. Even if understood as part of the
description of the criteria, the point is that there is ambiguity as to whether the descriptive
content of “controlled substance” includes substances only controlled under state law. As
the Second Circuit has pointed out, if the authors of the Guidelines wanted to include any
substance controlled under state law, “the definition should read ‘. . . a controlled substance
under federal or state law.’” Townsend, 897 F.3d at 70. It does not. Of course, “[i]t may
be tempting to transitively apply the ‘or state law’ modifier from the term ‘controlled
substance offense’ to the term ‘controlled substance.’” Id. Likewise, it may be tempting
to believe that “[i]f the Commission had intended for the federal definition of ‘controlled
substance’ to apply for the career-offender enhancement, it had only to say so.” Maj. Op.
at 14 (internal citations omitted). But these positions undermine the presumption that
federal standards govern federal sentencing provisions. “Because the Guidelines presume
the application of federal standards unless they explicitly provide otherwise, the ambiguity
in defining ‘controlled substance’ must be resolved according to federal—not state—
standards.” Townsend, 897 F.3d at 70–71.
31
Stepping back from the Jerome presumption, there are other reasons to think that
“controlled substance” does not incorporate substances solely controlled under state law.
Noticeably absent from the majority’s plain meaning analysis is any consideration for the
examples of “controlled substance offenses” provided in the commentary accompanying
§ 4B1.2(b). Cf. United States v. Hawley, 919 F.3d 252, 255 (4th Cir. 2019) (“[W]hen the
Guidelines provide commentary that interprets a guideline provision or explains how a
guideline is to be applied, the commentary is controlling[.]”) (internal quotations omitted).
But this commentary is instructive. For example, pointing out the clarifying language in
application note 1, we previously stated:
Section 4B1.2 defines “controlled substances offense” to include
(1) unlawful possession of a listed chemical in violation of 21 U.S.C.
§ 841([c])(1); (2) unlawful possession of controlled substances
manufacturing equipment in violation of 21 U.S.C. § 843(a)(6);
(3) maintenance of a place for facilitating a drug offense in violation of 21
U.S.C. § 856; and (4) use of a communications facility in aid of a drug
offense in violation of 21 U.S.C. § 843(b).
Mills, 485 F.3d at 223 (emphasis added) (citing U.S.S.G. § 4B1.2 (application note 1)).
Although this list is not exhaustive, it is informative. 7 When signifying the type of conduct
7
One reason why we should not read the list as exhaustive is because such a reading
would be a plainly erroneous reading of the Guidelines in that it would render the phrase
“or state” superfluous in § 4B1.2. See United States v. Allen, 909 F.3d 671, 674 (4th Cir.
2018) (“[T]he Guidelines commentary is authoritative and controlling unless it . . .
constitutes a ‘plainly erroneous reading’ of the Guidelines.”); see also Maj. Op. at 16 n.11
(explaining how such a reading would render the phrase “under . . . state law” superfluous).
The point, however, is that refusing to extend this section of the Guidelines to cover
substances only controlled under state law does not suffer from this fatal flaw. As stated
above if “or state law” was read out then no state offense would be able to trigger
enhancement. On my reading, a state law offense could trigger enhancement so long as
the substance is one controlled under the federal schedules.
32
that would trigger enhancement under Section 4B1.2, the Sentencing Commission refers
exclusively to federal statutes. Yet, if the Commission wanted to include conduct solely
punishable under state law, it could have been less restrictive with its illustrations. For
example, the Commission could have said “[u]nlawfully possessing a prohibited flask or
equipment with intent to manufacture a controlled substance” is a “controlled substance
offense”—without reference to the federal statute. Likewise, the Commission could have
said “[m]aintaining any place for the purpose of facilitating a drug offense” is a “controlled
substance offense”—without reference to the federal statute. And so on. If the Sentencing
Commission sought to include all prohibited substances under state law as qualifying
controlled substances, one would expect the related commentary to be more inclusive. It
is doubtful that the Commission wanted to, say, restrict the “listed chemicals” to those
punishable under federal law but not restrict the “controlled substances” to those
punishable under federal law. The examples in the commentary should be read as
harmonious with, and complimentary to, the main text. See Roberts v. Sea-Land Servs.,
Inc., 566 U.S. 93, 100 (2012) (“The text of § 906(c), standing alone, admits of either
interpretation. But ‘our task is to fit, if possible, all parts into an harmonious whole.’”
(internal citation omitted)). 8
8
This position is further supported by the Commission’s rationale for including the
listed federal offenses as controlled substance offenses. According to the Commission, the
decision was “based on the Commission’s view that there is such a close connection
between possession of a listed chemical or prohibited flask or equipment with intent to
manufacture a controlled substance and actually manufacturing a controlled substance that
the former offenses are fairly considered as controlled substance trafficking offenses.”
U.S.S.G. app. C, amend. 568. Rather than respect this close connection, the majority
(Continued)
33
Without giving much weight to the reasons we have to think that “controlled
substance” is not meant to incorporate substances solely punishable under state law, the
majority reaches the conclusion that the enhancement could be based on the definition of
“controlled substance” adopted by the state of conviction. This turns the point of the
categorical approach on its head. See Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1570
(2017) (“[T]he Government’s definition turns the categorical approach on its head by
defining the generic federal offense of sexual abuse of a minor as whatever is illegal under
the particular law of the State where the defendant was convicted.”). Whereas the
categorical approach was intended to prevent inconsistencies based on state definitions of
crimes, the majority’s approach creates them. Compare Taylor v. United States, 495 U.S.
575, 588 (1990) (explaining that the enhancement provision embodies a categorical
approach to avoid predicate offenses being “left to the vagaries of state law”), with Maj.
Op. at 10 (“The state has not restricted itself to regulating only those substances listed on
the federal drug schedules. Instead, the offense identifies those substances that are
‘regulated’ under Virginia law, which has its own drug schedules.”). States often use their
power to prohibit the use of substances that are not prohibited under federal law. Indeed,
Virginia law, which Ward was convicted under, may contain as many as 52 substances not
found on federal schedules. See Bah, 950 F.3d 213 (Thacker, J., dissenting) (“Petitioner
provided an expert’s affidavit concluding that Virginia’s drug schedules contain at least 52
substances not found on federal schedules, including 42 substances on Virginia’s Schedule
creates disharmony by including substances solely punishable under state law within the
ambit of this Guideline provision.
34
I alone.”). “Thus, a person imprudent enough to [manufacture, possess, or distribute these
drugs in Virginia] would be found, under the [majority’s view], to have committed a
[“controlled substance offense”] for enhancement purposes—yet a person who did so in
Michigan 9 might not.” Taylor, 495 U.S. at 591. Something went wrong here. Rather than
follow the rationale of the Supreme Court, the majority adopts the very approach Taylor
addressed and rejected.
V.
I understand the categorical approach comes with its complications. This is part of
the reason there have been consistent calls for Congress or the Supreme Court to alter the
framework. See United States v. McCollum, 885 F.3d 300, 309 (4th Cir. 2018) (Traxler,
J., concurring) (“Frankly, I would be satisfied if Congress or the Supreme Court would
help us. The law in this area . . . leads to some seemingly odd results with which I do not
think any of us are particularly happy.”); see also Omargharib v. Holder, 775 F.3d 192,
200 (4th Cir. 2014) (“Were the Supreme Court willing to take another look at this area of
law, it might well be persuaded, when focusing on the goals of the categorical approach,
to simply allow lower courts to consider Shepard documents in any case where they could
assist in determining whether the defendant was convicted of a generic qualifying crime.”
(emphasis deleted)). Hence, it makes sense why my colleagues would be tempted to apply
9
Without peering at Michigan state drug schedules, I assume here that there are at
least some substances that may be controlled by Virginia that are not controlled by
Michigan. But one could easily substitute these examples with different sovereigns.
35
a new framework that does not follow the outline that the Supreme Court supplied us with
in Taylor. But whatever the wisdom of clinging onto the purported plain meaning of terms
in the Guidelines, this Court should not rewrite the law. The majority justifies its holding
on the grounds that “clear textual and structural expressions” support a reading that would
require us to extend § 4B1.2(b) to cover any controlled substance a state chooses to
prohibit. Maj. Op. at 14. But I fail to understand the basis for this confidence. Even if one
does not accept my reading of the Guidelines, it seems to me that it must at least be
acknowledged that the issue is debatable 10—and that is enough to apply the Jerome
presumption or respect the Commission’s expressed goal for uniformity.
In any event, as explained, the best course of all would be to simply follow our
precedent, apply the modified categorical approach, and affirm Ward’s sentence on the
basis that his conviction under Virginia Code § 18.2–250 was for distributing heroin—a
substance controlled under federal schedules.
10
Indeed, most of circuits that have addressed the issue have read the Guidelines
different than the majority reads it today and concluded that “controlled substance” in
§ 4B1.2(b) refers to the federal definition. See, e.g., Townsend, 897 F.3d at 71 (Second
Circuit); Gomez-Alvarez, 781 F.3d at 793 (Fifth Circuit); Sanchez-Garcia, 642 F.3d at 661(Eighth Circuit); Leal-Vega, 680 F.3d at 1166 (Ninth Circuit). But see United States v.
Ruth,–– F.3d ––, 2020 WL 4045885, at *9 (7th Cir. 2020) (recognizing “the weight of
authority favors” reading “controlled substance” to refer to the federal definition but
deviating from this authority because of its precedent).
36