US v. Bautista, No. 19-10448 (11-23-20)(Fletcher w/Schroeder & Hunsaker). Note: This is an Arizona FPD case.

This is a prohibited possessor case, with an enhanced recidivist sentencing. The 9th reversed and remanded, finding that the prior Arizona conviction for attempted transportation of marijuana under ARS 13-3405(A)(4) was overbroad and indivisible with respect to a generic “controlled substance offense” under USSG 4B1.2. The state statute includes hemp; the federal statute, 21 USC 801 et seq, as of December 20, 2018, excludes hemp. Thus, the federal guidelines cannot use the state offense as a recidivist enhancement for sentencings after December 20, 2018.

Congrats are extended non-categorically to Ryan Moore, FPD Az (Tucson) for this win. It is important.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/23/19-10448.pdf