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Date: 10-15-2021

Case Style:

United States of America v. JOSEPH CROCCO

Case Number: 19-2140

Judge: Sarah Naomi Smith

Court: United States Court of Appeals For the First Circuit

Plaintiff's Attorney: Seth R. Aframe, Assistant United States Attorney, with whom
Scott W. Murray, United States Attorney

Defendant's Attorney:

Boston, MA - Criminal defense Lawyer Directory


Boston, MA - Criminal defense lawyer represented defendant with a bank robbery charge.

On September 25, 2018, a jury found Crocco guilty of one
count of bank robbery in violation of 18 U.S.C. § 2113(a). His
lengthy criminal record included a 1995 North Carolina conviction
for voluntary manslaughter and a 2012 Virginia conviction for
possession of marijuana with intent to distribute. Based on those
two convictions, the District Court concluded that Crocco was a
career offender under § 4B1.1(a)(3) of the Guidelines. Crocco did
not argue that those prior offenses failed to meet the criteria
for guideline enhancement. The career-offender designation placed
him in criminal history category VI and increased his offense level
from twenty-four to thirty-two. Accordingly, the District Court
determined that the guideline imprisonment range was 210 to 240
months. The court varied downward, sentencing Crocco to a prison
term of 144 months. Without the contested marijuana predicate and
career offender designation, the guideline range would have been
77 to 96 months.
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II. Discussion
Crocco argues that, for multiple reasons, his Virginia
conviction for possession of marijuana with intent to distribute
is not a "controlled substance offense" under § 4B1.1(a)(3) of the
Guidelines and that the District Court therefore should not have
classified him as a career offender. As we outline below, Crocco
did not present any of these arguments to the District Court and
did not raise some in his opening brief here. While these
contentions may have had some purchase had they been timely raised,
he establishes neither plain error nor a sufficient reason to
excuse waiver.
To determine whether a prior conviction qualifies as a
predicate offense, a court applies either the categorical or
modified categorical approach. United States v. Mohamed, 920 F.3d
94, 101 (1st Cir. 2019) (citing Mathis v. United States, 136 S.
Ct. 2243, 2249 (2016)). Neither side points to the modified
approach, so we will review and employ the standard protocol. The
first step is to identify the applicable definition of the
enhancement provision. See Taylor v. United States, 495 U.S. 575,
600-02 (1990). Then, we compare that enhancement definition to
the statute of prior conviction as it existed at the time of that
conviction. See United States v. Abdulaziz, 998 F.3d 519, 525
(1st Cir. 2021) (citing McNeill v. United States, 563 U.S. 816,
- 4 -
820 (2011)). The conviction counts as a predicate offense only if
every possible violation of that statute (putting aside truly
outlandish hypotheticals) fits within the enhancement definition.
See Descamps v. United States, 570 U.S. 254, 261 (2013) (citing
Taylor, 495 U.S. at 600).
For example, in United States v. Ellison, 866 F.3d 32,
34 (1st Cir. 2017), the defendant argued that his conviction for
bank robbery was not a "crime of violence" under the Guidelines
and that he therefore should not have been classified as a career
offender. We consulted the Guidelines' applicable enhancement
definition, which provided that a "crime of violence" included
"any offense under federal or state law, punishable by imprisonment
for a term exceeding one year, that . . . has as an element the
use, attempted use, or threatened use of physical force against
the person of another." Id. (quoting U.S.S.G. § 4B1.2(a) (Nov. 1,
2015)). The defendant's statute of conviction prohibited
"tak[ing], or attempt[ing] to take, from the person or presence of
another[,]" any property "belonging to, or in the care, custody,
control, management, or possession of" a banking institution "by
force and violence, or by intimidation." Id. at 35 (quoting 18
U.S.C. § 2113(a)). The defendant argued that, because the statute
could be violated through mere intimidation – as opposed to force
or violence – it was not a categorical fit. Id. at 35-39. However,
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we determined that intimidation necessarily involved a threat of
bodily harm, and so the statute categorically fit within the
Guidelines' applicable definition. Id. at 37-40.
Here, the applicable enhancement definition comes from
§ 4B1.2(b) of the Guidelines, which provides that a "controlled
substance offense" is an offense under a federal or state law that
prohibits a number of specific actions involving a "controlled
substance" (e.g., manufacture, distribution, possession with
intent to distribute, etc.). See U.S.S.G. § 4B1.2(b). The
violation must also be punishable by more than a year in prison.1
Crocco's arguments concern only the requirement that the
offense involve a "controlled substance."2 Confusion arises in
cases like this one because, unfortunately, § 4B1.2(b) does not
define that term. To fill in this gap, several of our sister
circuit courts have held that the federal Controlled Substances
Act (CSA), 21 U.S.C. § 801 et seq., must provide the definition.
See United States v. Bautista, 989 F.3d 698, 702 (9th Cir. 2021);
1 The definition also includes offenses involving counterfeit
substances, which are not at issue here. See U.S.S.G. § 4B1.2(b).
2 At the time of Crocco's state-court guilty plea, the
pertinent Virginia statute provided that it was "unlawful for any
person to sell, give, distribute or possess with intent to sell,
give, or distribute marijuana." Va. Code Ann. § 18.2-248.1 (2006)
(amended 2020). While the maximum punishment is unclear, judging
by Crocco's sentence, it was more than a year in prison.
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United States v. Townsend, 897 F.3d 66, 68, 71 (2d Cir. 2018);
United States v. Gomez-Alvarez, 781 F.3d 787, 793-94 (5th Cir.
2015). Three other circuits have held (after Crocco's sentencing)
that, where a prior conviction is handed down in state court, a
substance criminalized under that state's laws is a "controlled
substance" under the Guidelines, even if absent from the federal
CSA. See United States v. Henderson, No. 20-2594, 2021 WL 3817853,
at *3-5 (8th Cir. Aug. 27, 2021); United States v. Ward, 972 F.3d
364, 371–72 (4th Cir. 2020); United States v. Ruth, 966 F.3d 642,
654 (7th Cir. 2020).
This court has not weighed in on this debate and, given
the posture of this appeal, will not do so now. However, as this
scenario (and others) will doubtless arise in the future, some
additional discussion may be helpful.
The federal-CSA approach advanced by the Second, Fifth,
and Ninth Circuits refers to the federal drug schedule to determine
if a substance is a "controlled substance." Because we are
interpreting the federal sentencing guidelines and utilizing the
categorical approach (a creation of federal case law), this
federally based approach is appealing. Had this approach been
argued to the District Court, it likely would have been utilized
given that the Fourth, Seventh, and Eighth Circuits' diverging
holdings had not yet been issued at the time of Crocco's
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sentencing. And, for reasons discussed below, the District Court
may have determined that Crocco's marijuana conviction was not a
categorical match under the federal CSA.
The competing approach endorsed by the Fourth, Seventh,
and Eighth Circuits looks to state law to supply the definition of
"controlled substance," but this approach is fraught with peril.
For example, which version of state law should supply the
definition of the predicate offense: the version in effect at the
time of the instant federal sentencing, the one in force at the
time of the previous state-court conviction, or another version?3
Of course, federal courts cannot blindly accept anything that a
state names or treats as a controlled substance. Such an approach
would "turn[] the categorical approach on its head by defining [a
controlled substance offense] as whatever is illegal under the
particular law of the State where the defendant was convicted."
Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1570 (2017)
(considering generic definition of sexual abuse of a minor). For
this reason, perhaps, the Fourth and Seventh Circuits each
3 One thing is certain: if the federal CSA is chosen as the
source of the definition, it is the version of the federal CSA in
effect at the time of the instant federal sentencing that governs.
See United States v. Abdulaziz, 998 F.3d 519, 531 (1st Cir. 2021).
By the same token, where a sentencing court is determining whether
a prior federal conviction is a categorical match, the court must
use the version of the federal CSA in effect at the time of the
instant sentencing (not at the time of the prior conviction). See
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consulted a dictionary to circumscribe the term. See Ruth, 966
F.3d at 654 (defining controlled substance as "any of a category
of behavior-altering or addictive drugs, such as heroin or cocaine,
whose possession and use are restricted by law" (quoting Controlled
Substance, The Random House Dictionary of the English Language (2d
ed. 1987))); Ward, 972 F.3d at 371 (defining controlled substance
as "any type of drug whose manufacture, possession, and use is
regulated by law" (emphasis omitted)(quoting Controlled Substance,
Black's Law Dictionary 417 (11th ed. 2019))). But these dictionary
definitions beg the question because they rely on the substance
being "regulated" or "restricted" by law. Even the choice of
dictionary can matter. For example, Merriam-Webster defines a
controlled substance to be "a drug that requires permission from
a doctor to use." See Controlled Substance, Merriam-Webster Online
Under this seemingly reasonable definition, a defendant could
argue that none of the Schedule I drugs –- such as heroin and
ecstasy –- should be considered controlled substances because none
can be prescribed by a doctor under federal law. See 21 U.S.C. §
829 (authorizing prescriptions for drugs on Schedule II, III, IV,
and V only); 21 C.F.R. § 1308.11 (listing Schedule I drugs). As
Chief Judge Gregory noted in his concurring opinion in Ward,
"[w]hereas the categorical approach was intended to prevent
- 9 -
inconsistencies based on state definitions of crimes, the
majority's approach creates them." 972 F.3d at 383–84 (citing
Taylor, 495 U.S. at 588).
And finally, there is the question of whether a prior
state conviction for a substance (such as marijuana) in an amount
which has been decriminalized under that state's law (but not
federally) should count as a controlled substance offense under
§ 4B1.2(b): the federal approach might suggest it should, while
the answer is less clear under the state-law approach and could
depend on the timing issue we recently decided in Abdulaziz, 998
F.3d at 531. See supra note 3. We do not have occasion to address
these issues here because they have not been properly raised; but
they will arise in the future, and when they do, counsel should
raise them to the district court.4
4 This broad sketch of the legal landscape also demonstrates
why it is problematic that the U.S. Sentencing Commission currently
is without sufficient members to conduct business. These issues
are ones that cry out for a national solution in the form of an
amendment to the Sentencing Guidelines. It makes little sense for
career-offender criteria to vary from circuit to circuit based on
whether a federal-law or state-law approach is chosen. The careeroffender designation can have significant implications in setting
the base guideline range -- here, it raised Crocco's guideline
range from 77-96 months to 210-240 months. And, moreover, the
rapidly evolving changes in state marijuana legalization (and the
lack of movement for similar federal drug reform legislation, see,
e.g., Marijuana Freedom and Opportunity Act, S. 1552, 116th
Congress (introduced May 20, 2019)) will continue to challenge
sentencing courts trying to make sensible decisions about whether
a defendant should be considered a career offender and what
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Having sketched this ambiguous terrain, we now turn to
Crocco's specific arguments. As he notes, Virginia has long
treated marijuana differently from other drugs. See Ruplenas v.
Commonwealth, 275 S.E.2d 628, 630 (Va. 1981). One set of statutory
provisions regulates so-called "controlled substances," see, e.g.,
Va. Code Ann. § 18.2-248, and another regulates marijuana, see,
e.g., id. § 18.2-248.1. Crocco therefore argues that his Virginia
conviction should not count as a "controlled substance offense".
This argument was not raised below, so we review for plain error.
See United States v. Ortíz-Mercado, 919 F.3d 686, 689 (1st Cir.
As a general principle, if a question of law is unsettled
in this circuit, and a conflict exists among other circuits, any
error in resolving the question will not be "plain or obvious."
See United States v. Lewis, 963 F.3d 16, 27 (1st Cir. 2020)
(quoting United States v. Diaz, 285 F.3d 92, 96 (1st Cir. 2002)).
Here, the circuit split regarding the source of the definition of
controlled substance (state vs. federal law) thwarts the claim of
plain error. Moreover, even if state law were chosen as the
source, it is not clear or obvious that the exact wording used by
the state ("controlled substance" or otherwise) would control the
sentence he should receive. A fully functioning Sentencing
Commission would go a long way in assisting courts navigating these
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inquiry. See United States v. Padilla, 415 F.3d 211, 218 (1st
Cir. 2005) (stating that an error must be clear or obvious in order
to constitute plain error).
Crocco points to this court's recent decision in
Abdulaziz (issued after this case was argued) as an alternative
basis for overturning his sentence. There, the parties agreed
that the federal CSA provided the definition. Abdulaziz, 998 F.3d
at 523.5 Operating under that framework, we held that the
definition of controlled substance must be keyed to the version of
the CSA in effect at the time of the instant federal sentencing –
- not a prior version. Id. at 531. Because hemp had been legalized
prior to the defendant's federal sentencing, and because he had
been convicted under a Massachusetts marijuana law that included
hemp in its definition of marijuana, the defendant's prior
conviction was not a categorical match. Id. at 522-524, 531.
In a supplemental brief filed after oral argument,
Crocco argues that his prior conviction, like Abdaluziz's, should
not qualify as a controlled substance offense due to the federal
legalization of hemp. In the same filing, he also points out that
Virginia legalized hemp between the time of his state-court
conviction and his federal sentencing. See Va. Code Ann. § 18.2-
5 The government's late-breaking argument to the contrary in
that case was rejected based on waiver. United States v.
Abdulaziz, 998 F.3d 519, 523 n.2 (1st Cir. 2021).
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247(D) (as amended by 2019 Va. Acts ch. 653). These arguments,
not raised in his opening brief, are waived. See United States v.
Mayendía-Blanco, 905 F.3d 26, 32 (1st Cir. 2018) (citing LandrauRomero v. Banco Popular De P.R., 212 F.3d 607, 616 (1st Cir.
2000)). But even putting waiver aside, Crocco cannot establish
plain error due to the myriad unanswered, unbriefed questions
described above. Thus, even construing Crocco's argument as
claiming that the District Court erred by not applying the federallaw approach outlined above, or alternatively, that even a statelaw-based categorical approach would have yielded a favorable
result, the legal conclusions advocated by Crocco are neither clear
nor obvious. See Padilla, 415 F.3d at 218 (1st Cir. 2005).
Next, Crocco argues that his classification as a career
offender and his resulting sentence were substantively
unreasonable (a) because he was barely eighteen years old at the
time of one of his prior offenses and (b) because marijuana's legal
status has experienced a sea change in recent years. We review
these claims of substantive unreasonableness for abuse of
discretion. See United States v. Arsenault, 833 F.3d 24, 28 (1st
Cir. 2016).
Crocco does not point to any precedent requiring a court
to disregard prior offenses that involved marijuana or that were
committed shortly after reaching the age of eighteen. Instead, he
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makes a compelling case that, in a court's exercise of its
"duty . . . to make evaluative judgments" regarding a defendant's
criminal history, United States v. Merritt, 755 F.3d 6, 12 (1st
Cir. 2014), both youthfulness and changes in societal mores should
play important roles.6
Here, after hearing detailed argument regarding Crocco's
life and criminal history, the District Court seemingly determined
that the guideline range overstated the seriousness of his record.
Following the very approach advocated by Crocco, the District Court
thus sentenced Crocco to well below the suggested range.7
Accordingly, we will not disturb the sentence. See United States
6 In support, Crocco points to cases in which courts have done
exactly that. See United States v. Lawrence, 916 F.2d 553, 554
(9th Cir. 1990) (affirming district court's decision to downwardly
depart because the Guidelines "significantly over-represent[ed]
the seriousness of [the] defendant's criminal history[,]" which
primarily involved marijuana convictions (quoting U.S.S.G.
§ 4A1.3, policy statement)); United States v. Naylor, 359 F. Supp.
2d 521, 524-25 (W.D. Va. 2005) (sentencing the defendant based on
the non-career-offender guideline range, even though he met the
designation based on offenses that he committed before he turned
eighteen, based on the "history and characteristics of the
defendant" (quoting 18 U.S.C. § 3553(a)(1))).
7 For this reason, Crocco's reliance on United States v.
Howard, 773 F.3d 519 (4th Cir. 2014), is misplaced. There, the
district court departed from the guideline range of 120-121 months,
sentencing the forty-year-old defendant to life plus sixty months
in prison, partly based on crimes he committed during adolescence.
See id. at 529-536. The Fourth Circuit's decision, which held the
upward departure to be substantively unreasonable, says little
about the instant case, where the District Court gave a sentence
below the guideline range. See id.
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v. King, 741 F.3d 305, 310 (1st Cir. 2014) ("It is a rare belowthe-range sentence that will prove vulnerable to a defendant's
claim of substantive unreasonableness.").
Lastly, Crocco argues that his state-court marijuana
sentence, which at the time of the instant offense was suspended
on the condition of good behavior, should not have been treated as
a "criminal justice sentence" under § 4A1.1(d) of the Guidelines.
Because we affirm Crocco's designation as a career offender, which
automatically placed him in the highest criminal history category,
the additional criminal history points under § 4A1.1(d) have no
effect on his guideline range. See U.S.S.G. § 4B1.1(b). We
therefore decline to reach this issue. See United States v. Davis,
873 F.3d 343, 346 (1st Cir. 2017).

Outcome: The sentence is affirmed. So ordered

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