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March 3, 2023

"To Hemp in a Hand-basket: The Meaning of 'Controlled Substance' Under the Career Offender Enhancement"

The title of this post is the title of this new paper authored by Jacob Friedman now available via SSRN.  Here is its abstract:

Sentencing enhancements can drastically impact prison sentences for people convicted of federal crimes.  The career offender enhancement is particularly harmful to a federal criminal defendant because it automatically raises their minimum offense level and criminal history score under the U.S. Sentencing Guidelines, which, although no longer mandatory, are almost always followed by judges in determining actual prison sentences.  Since 2016, the career offender enhancement has been applied to almost 8,000 criminal defendants who, at the time of their convictions, had accrued a total of two or more predicate felony convictions, for either a drug offense or a crime of violence enumerated in the Guidelines.

Yet an active circuit split over the definition of a “controlled substance” means that defendants with identical criminal histories could face drastically different guideline sentences.  Because the Supreme Court’s categorical approach in Taylor v. United States prohibits the use of “overbroad” predicate convictions for sentencing enhancement purposes, the definition of “controlled substance” is consequential -- a state statute criminalizing a broader set of conduct than applicable federal law cannot trigger the career offender enhancement.

Four circuits (the Fourth, Seventh, Eighth, and Tenth) have held that “controlled substances” are defined by applicable state law, sidestepping the categorical approach.  In those circuits, a prior conviction for marijuana that includes hemp -- now legal federally and in many states -- can serve as a predicate offense for the career offender enhancement. Four other circuits (the First, Second, Fifth, and Ninth) have held that “controlled substances” are defined by the Controlled Substances Act (CSA).  In these circuits, overbroad marijuana convictions cannot serve as predicate offenses under the categorical approach because the CSA currently legalizes hemp, while most state statutes before 2018 included hemp as a possible basis for conviction.  As a result, criminal defendants in these circuits are spared many years on their prison sentences by avoiding a career offender classification.

This Note argues that the Supreme Court should adopt the latter approach and hold that the CSA defines controlled substance offenses.  This recommendation is grounded in analysis of the career offender enhancement’s text, context, purpose, and history.

March 3, 2023 at 02:12 PM | Permalink


What about http://www2.ca3.uscourts.gov/opinarch/212621p.pdf ?

Posted by: Da Man | Mar 3, 2023 3:52:28 PM

I presume the note was authored before the opinion you link from the Third Circuit was handed down. Ergo the problem with traditional scholarship as opposed to a blog --- much easier to keep a blog up to date (especially with the help of helpful comments).

Posted by: Doug B | Mar 3, 2023 4:47:47 PM

I have to side with the panel in the opinion linked by Da Man, a state could ban something federal law deems entirely benign and yet it would still be a controlled substance offense, setting aside the problem that such a state would likely run into interstate commerce or preemption issues when it tried enforcing such a law.

Posted by: Soronel Haetir | Mar 3, 2023 5:40:36 PM


I’m just curious about your position on something. It just popped into my head so I’m not endorsing this, as I haven’t thought the ramifications through. Bill will likely come and say I’m a fool. Lol Someone else has also likely thought of it before.

I know you want decriminalization. That’s not happening for good reason, but perhaps some kind of compromise?

Semi-legalize possession of a small amount of drugs (below trafficking amounts). Only a misdemeanor, with say a $500 fine per offense. The recreational drug user never goes to prison regardless of how many times charged. Just pay the fine.

However, if caught committing a felony in possession of drugs, under the influence of drugs, or to get money to buy drugs, the felony gets an enhancement. For example, carjacking becomes carjacking in possession of a controlled substance with an increased sentence.

I don’t believe there are nearly as many people in prison for mere possession as you all claim, but it keeps them out of the prison system. It’s one fewer complaint from you all we have to hear.

Posted by: TarlsQtr | Mar 4, 2023 5:37:34 PM

I continue to believe that this particular enhancement takes the wrong approach. It is too all-or-nothing. We should get rid of it, and instead increase the effect of criminal history on sentencing generally. Currently, a criminal history *category* level is worth approximately the same as an offense level when determining the sentence. We might, for example, instead set things up so that a criminal history *point* is worth approximately the same as an offense level. Then we wouldn't need an all-or-nothing career criminal enhancement. The effect of criminal history would simply fall right out of the general framework.

Posted by: William C Jockusch | Mar 4, 2023 10:17:38 PM

I very much appreciate, and largely endorse, the effort, Tarls. Couple of important points to make at the outset to help explain my disfavoring of drug criminalization before turning to your thoughtful suggestion:

1. I do not claim lots of people are in prison for "mere possession" of drugs. I do claim lots of people --- over a million every year, in fact --- get arrested for "mere possession," and many, many thousands of those people every year get saddled with a conviction (relatively few then get sent to prison absent priors or other aggravating factors). Those arrests and convictions, I fear, can be criminogenic and will always present barriers to human flourishing due to formal/informal collateral consequences impacting education, employment, housing and all sorts of other opportunities. The work I have been doing in recent years for the Ohio Governor's Expedited Pardon Project has reinforced and deepened my sense of how even very low-level convictions for stupid stuff people do in their teens often forever shape their life-course even if they never spent a minute behind bars.

2. Beyond the challenges to individuals, the drug war appears corrosive to our legal system and social order in many of the ways alcohol Prohibition proved to be: misallocation and corruption of law enforcement, perceptions of profound racial/class biases, mass sums fueling criminal syndicates, and making tens of millions of people who use drugs scofflaws. What ends are advanced? Suppression of some drug use, I hope, which is a public health benefit, but there is the corresponding public health harm that all other drug use is more dangerous (see, eg, 100,000+ overdoses recently).

3. Drugs are a HUGE public health problem. Like tobacco and alcohol and trans fat and sugar and lots and lots of other substances (and also activities, like social media use for many). I generally think public health problems should be addressed primarily with public health means, not criminalization. I suppose I could be convinced criminalization is worth trying if I saw evidence that criminalization worked great, but that not what I generally see, past or present.

As for your proposal:

A. Semi-legalization, to me, would mean no criminal legal consequence for mere drug possession. Criminalize sale and/or distribution if you want to avoid a legal marketplace for drugs (though I think allowing for the forfeiting of all proceeds and product could do the trick more efficiently). But, at least for adults, why even a fine or misdemeanor record for just possession/use absent any harm to others? Perhaps if quantity possessed is an obvious distribution amount, but why should a person smoking a joint in his house be subject to any more trouble than one drinking whiskey there? (I would be okay with a fine for public use/nuisance, like open container/public drunkenness laws. And driving under the influence and other risky public behaviors can also be subject to some sanctions, of course.)

B. I suppose I could live with an enhancement for drug-influenced crimes, but I would also want that to apply to alcohol-induced crimes. I want the law to focus generally on tangible harms to others, and if drugs -- whether alcohol or other types of drugs -- directly contribute to tangible harms to others, then I can see a justification for having that enter into grading/sentencing considerations.

C. Since I do not complain at all about alcohol Prohibition --- and actually think it should be a focal point of much more legal/constitutional/policy discourse --- I likely will not complain about drug prohibition if it goes away.

Posted by: Doug B | Mar 4, 2023 10:25:49 PM


Then I guess you aren’t interested in compromise after all.

The government should not be in the business of endorsing drug use. I’m also surprised because you have discussed funding rehab, etc. The fines could could be put forth to fund it.

Posted by: TarlsQtr | Mar 5, 2023 8:51:44 PM

TarlsQtr --

One thing I've found after years in this business is that the defense is NEVER truly interested in compromise. It's just a ruse. Any concession you give them, they'll pocket and keep right on pushing.

Examples: They say they want to curb plea bargaining because the prosecutor is just an extortionist, and besides the Constitution prefers trials. So then you say, OK, we'll do more trials. And without missing a beat, they'll shoot back, hey, no, we can't do trials either because all the rules rig the system for the government.

Their whole deal is not to reach agreement. It's to kick up dust and complain. Gadfly and all that. This is so even though, as veteran defense investigator SG explicitly admitted the other day, the defense has zero interest in justice or fairness. That's for suckers.

Then there's the death penalty. They say let's get rid of it and do LWOP, which will keep us just as safe. Then as soon as the DP goes bye-bye, they're right back the next day saying we have to get rid of LWOP because it creates hopelessness and overlooks the possibility that the prisoner can change. Then if you get rid of LWOP.............................

I found out long ago that trying in good faith to reach a compromise with these people is a fool's errand. Like I said, they'll pocket anything you give them and just keep right on keepin' on.

Posted by: Bill Otis | Mar 6, 2023 2:20:16 AM

Tarls, I am always interested in compromise, but I do not see a lack of criminalization of an activity as amounting to "endorsement." Do you think the government currently endorses tobacco use? Do you think the government current endorses adultery or people watching adult pornography or playing violent video games? How about young kids playing dangerous sports like football? There are lots of harmful behaviors that are not criminal that I do not think the government endorses simply because it does not threaten to give people criminal records (or a fine) for the activity in any/every instance.

Unlike some drug reform advocates, I am quite open and eager to recognize that lots of drugs can produce lots of public health harms. But, as we have done with alcohol and tobacco, I want to use public health tools, not mass criminalization of USERS, to address those harms. In these contexts, I see mass criminalization of the activity as generally seeming to do more overall harm than good. Do you disagree that this was the basic lesson of alcohol Prohibition --- which led to a constitutional amendment(!) and then its relatively quick repeal?

Critically, we still have lots and lots and lots of criminalization connected to alcohol --- for underage and unlicensed sales, for drinking and driving, for use while on probation/parole, for other harms flowing from alcohol use and misuse. Does that amount to "government being in the business of endorsing alcohol use" in your mind? I do think the marketplace and culture endorses alcohol use, but it mostly endorses more responsible use. And I hope the tax dollars collected from all the economic activity can be used to help people get into treatment if/when they feel their use has become personally harmful.

Can you explain, Tarls, whether you think there is any way for the government to discourage an activity without criminalization? That is where I am eager to work together based on what I sense is our shared view that lots of drug use can be harmful to the user. Do you think there are ways to address problematic use other than through mass criminalization? Or is criminalization and criminal enforcement the only way to discourage an activity in your view?

Posted by: Doug B | Mar 6, 2023 9:49:58 AM

I never said “truth and justice is just for suckers”. This is just Bill misquoting, mis-stating and mischaracterizing my words - the very thing which he incessantly chastises others about on this (and likely other) blogs.

What I DID say was that defense attorneys have a distinctly different set of obligations than prosecutors, and that is to represent their clients vigorously and effectively, as the rules of law and ethics allow. Bill, it seems, is having difficulties with these facts of life. He has in the past called for a “level playing field” as he postulates that defense attorneys are given unfair advantage, are characterizes the vast majority as largely unethical, dis-honest, and all-around bad people (how’s that for putting words in one’s mouth?) OK Bill….provide the defense with ALL of the same resources (legally, financially, investigatory, along with an unlimited number of support personnel) that the government now enjoys. Oh, and how about a law mandating an equal number of former defense attorneys be placed on the bench? I’m sure we could think of a few other adjustments. Equal playing field, right?

Posted by: SG | Mar 6, 2023 9:55:55 PM

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