Fourth Circuit Update: “Controlled Substance Offense”

In federal court, a judge must consider several factors before imposing a sentence. In practice, the factor that receives the most focus throughout the sentencing process is the defendant’s advisory guideline range as prescribed by the United States Sentencing Commission’s Sentencing Guidelines. A guideline range is calculated based on the offense conduct and the defendant’s criminal history.

Under the Guidelines, a defendant may be subject to an enhanced guideline range as a “career offender” if:

  1.  The defendant was at least eighteen years old at the time of the offense of conviction;
  2. The 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”

Being sentenced as a “career offender” can expose a defendant to a significantly higher guideline range than would otherwise apply. Therefore, understanding which prior convictions can trigger the career offender enhancement is crucial.

confiscated items from drug trafficking conspiracy

What is a Controlled Substance Offense?

The term “controlled substance offense” has gotten significant attention in the federal courts both as used in the career enhancement and in other parts of the Guidelines. The Guidelines define a “controlled substance offense” as “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.”

Despite this detailed definition, applying it to a defendant’s prior convictions can be very complicated and has been extensively litigated in the federal courts. For example, whether “controlled substance offense” includes attempts or conspiracies to commit such crimes, or aiding and abetting such crimes, has been a hot issue in the Fourth Circuit.

An application note to the career offender definitions guideline states that a “controlled substance offense” includes aiding and abetting, conspiring, and attempting to commit such offenses. This note essentially expands the definition provided in the guideline itself.

Fourth Circuit Court of Appeals: U.S v. Campbell Decision (2022)

Recognizing this conflict between the guideline and the application note, the Fourth Circuit Court of Appeals recently weighed in on the issue in United States v. Campbell, 22 F.4th 438 (4th Cir. 2022). Trey Cardale Campbell was convicted by a jury of possession with intent to distribute opiates. The district court relied on his prior West Virginia conviction for delivery of crack cocaine and his prior federal drug-related conviction sentence him as a career offender, which increased his recommended imprisonment range from 63-78 months to 210-240 months. Campbell objected to the career offender status, arguing that his West Virginia did not count as a “controlled substance offense” because the West Virginia statute criminalizes conduct including attempts to deliver a controlled substance, while the “controlled substance offense” definition in the Guidelines does not include attempts. The district court, over Campbell’s objection, sentenced him as a career offender and imposed a 180-month sentence.

Campbell appealed to the Fourth Circuit, again arguing that his West Virginia conviction did not qualify as a “controlled substance offense” for the career offender enhancement.

In reaching its decision, the Fourth Circuit relied on the United States Supreme Court’s decision in Stinson v. United States, 508 U.S. 36, 38 (1993), which announced that commentary to the Sentencing Guidelines “is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Turning first to the text of the guideline defining “controlled substance offense,” the Fourth Circuit highlighted the absence of attempt offenses in this definition. Therefore, the commentary to the guideline includes an additional category of offenses that the definition itself does not. And based on the Supreme Court’s prior decisions, this makes the guideline and the commentary plainly inconsistent. The Fourth Circuit then went through a statutory interpretation analysis which solidified its conclusion that the guideline and its commentary are inconsistent. And where the guideline and the commentary are inconsistent, the guideline prevails. Therefore, Campbell’s West Virginia conviction did not qualify as a “controlled substance offense.” Without the West Virginia conviction, Campbell only had one qualifying conviction and could not be sentenced as a career offender. His sentence was vacated and the case was remanded back to the district court for resentencing.

Aftermath of the Campbell Decision: U.S v. Groves (2023)

Following Campbell, other defendants challenged their sentences based on the inconsistency between the guideline defining “controlled substance offense” and the commentary. The guideline applicable to unlawful possession of a firearm provides for higher offense levels if the defendant previously sustained a felony conviction for a “controlled substance offense”. This guideline instructs that the term has the same meaning given to it in the career offender guideline.

In United States v. Groves, No. 22-4095, 2023 U.S. App. LEXIS 8979 (4th Cir. Apr. 14, 2023), Patrick Andrew Groves pled guilty to unlawfully possessing a firearm and ammunition. At sentencing the court counted his prior federal conviction for aiding and abetting in the distribution of a controlled substance as a “controlled substance offense” to calculate his guideline range at an increased level. Groves objected, and relying on Campbell, argued that aiding and abetting a drug offense does not count as a “controlled substance offense.” The district court disagreed.

On appeal, Groves again relied on Campbell to argue that the aiding and abetting drug distribution could not constitute a “controlled substance offense” because, like attempt, aiding and abetting is not mentioned in the guideline—only the commentary. But here, the argument set forth in Campbell did not logically extend to aiding and abetting. Aiding and abetting is not itself a federal crime; it “merely describes the way in which a defendant’s conduct resulted in the violation of a particular law.” United States v. Barefoot, 754 F.3d 2266, 239 (4th Cir. 2014). A person liable under a theory of aiding and abetting is liable for the substantive offense; in contrast, attempt is punished as a lesser offense than the substantive offense. In sum, “an offense prosecuted on an aiding and abetting theory can qualify as a “controlled substance offense” under [the] Guidelines . . . in that it is the same as the underlying substantive offense.” Groves, 2023 U.S. App. LEXIS 8979, at *10. So, the inclusion of aiding and abetting in the commentary does not improperly expand the definition of “controlled substance offense” to a category of offenses not already included within the definition.

Groves also argued that conviction under 21 U.S.C. § 841(a)(1) (the primary federal drug distribution statute) cannot be a “controlled substance offense” because, according to Groves, that statute includes attempt offenses which are now excluded by Campbell. Groves’ argument is as follows: the statute prohibits knowingly or intentionally distributing a controlled substance. “Distribute” is defined by statute as “to deliver (other than by administering or dispensing) a controlled substance.” “Deliver” is defined by statute as the “actual, constructive, or attempted transfer of a controlled substance.” Therefore, according to Groves, the statute criminalizes the attempt offense of attempted delivery.

The Court rejected this argument in light of caselaw interpreting an “attempted transfer” of drugs to be a completed distribution offense. And, given that 21 U.S.C. § 846 specifically punishes attempts of the offenses described in § 841(a)(1), Groves’ interpretation would make § 846 superfluous. Ultimately, the Fourth Circuit disagreed with Groves’ argument that § 841(a)(1) is categorically excluded from being a “controlled substance offense” under the Guidelines and affirmed the judgment.

The Campbell and Groves decisions have provided some much-needed clarity to this area of sentencing.

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