Sunday, November 29, 2020

Case o' the Week: Defense verklempt with Fletcher and hemp - Categorical analysis and marijuana prior convictions

  When properly applied, hemp reduces inflammation, reduces levels of pain, and reduces guideline offense levels.

United States v. Bautista, 2020 WL 6865043 (9th Cir. Nov. 23, 2020), decision available here.

 Players: Decision by Judge Fletcher, joined by Judges Schroeder and Hunsaker. Big, big win for Az. AFPD J. Ryan Moore, D. Arizona FPD.  

 Facts: Bautista was convicted in 2017 for the Arizona offense of “Attempted Unlawful Transportation of Marijuana for Sale.” Id. at *1. 

  A couple of years later Bautista was convicted in federal court of being a felon in possession of ammo. He was sentenced in 2019. The PSR bumped his offense level up for a previous “controlled substance offense” conviction (as defined in USSG § 4B1.2). See id. at *2. Id. (He did not object to this enhancement in the district court). 

  On appeal, Bautista challenged the sentence.

 Issue(s): “[ ] Bautista appeals a sentence imposed following his conviction of possession of ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Bautista contends that the district court erred in applying a recidivist sentencing enhancement based on his prior state conviction for attempted transportation of marijuana . . . . He contends that it was not a conviction for a ‘controlled substance offense’ under § 4B1.2(b) of the U.S. Sentencing Guidelines . . . . The Arizona statute under which Bautista was convicted included hemp in its definition of marijuana. However, in 2018, before Bautista's federal conviction, Congress amended the Controlled Substances Act to exclude hemp from its definition of a controlled substance. Thus, in 2019, when Bautista was sentenced in this case, the Arizona statute under which he had been convicted was overbroad and that conviction no longer qualified as a “controlled substance offense” under the Guidelines. Id. at *1.

Held:At federal sentencing, the district judge was required to compare the elements of the state crime as they existed when Bautista was convicted of that offense to those of the crime as defined in federal law at the time of federal sentencing —that is, after the Agriculture Improvement Act removed hemp from the federal drug schedule. Because the federal CSA excludes hemp but . . . the Arizona Revised Statutes did not, the latter crime’s ‘greater breadth is evident from its text.’ . . . . Bautista's conviction is facially overbroad and not a categorical match for a ‘controlled substance offense,’ and the district court erred in applying the recidivist sentencing enhancement for a controlled substance. We conclude that the district court’s application of the six level recidivist enhancement was plain error. It was contrary to law and affected Bautista's substantial rights. . . . Because allowing this error to go uncorrected would “seriously affect the fairness, integrity, or public reputation of judicial proceedings,’ we exercise our discretion to grant relief.Id. at *4.

 Of Note: Bautista was convicted of his Arizona pot offense in 2017. At that time, hemp was included in the federal definition. 

  Just last month, the Ninth applied the categorical analysis to the statute at the time of conviction. See Medina v. Barr, 2020 WL 6373434 at *6-*8 (9th Cir. Oct. 30, 2020). 

 After Medina, how did Bautista get the benefit of the categorial analysis at the time of his 2019 sentencing (after the federal statute excluding hemp)? Judge W. Fletcher explains that the Medina rule only applies to immigration cases – by contrast, in this “Armed Career Criminal Act context seen here” the analysis takes place at the time of sentencing.

   The Ninth probably meant in the “Career Offender” context (the definitional guideline that determines “controlled substance offense” for § 922(g)(1) offenses), but the general point holds: the timing of a categorical analysis depends on the context.  

 How to Use: Red flag: If your federal client has a marijuana prior (federal or state) you likely have action under Bautista (because previous few laws excluded hemp).

  Our federal Sentencing Resource Counsel are all over this issue – talk to an AFPD, and take a look at their memos if your client finds yourself in this fortunate situation.   

 For Further Reading: For a thoughtful piece explaining the Farm Bill of 2018 (and Senator McConnell’s advocacy for hemp), see “The Farm Bill, hemp legalization and the status of CBD: An explainer,” available here 


Image of “What is hemp” from


Steven Kalar, Federal Public Defender N.D. Cal. Website at




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