Criminal Practice – Prior drug convictions don’t qualify as ACCA predicate offenses

Where the defendant was deemed a career offender based on three prior South Carolina convictions for possession of marijuana, but the state’s statute defined marijuana more broadly than Congress did, the district court erred in finding the state offenses qualified as predicate offenses.

Background

Soterio Lamar Hope pled guilty to one count of knowingly possessing a firearm and ammunition. The presentence report determined that Hope qualified for a mandatory minimum sentence under the Armed Career Criminal Act or ACCA, based on three prior South Carolina convictions for possession of marijuana with intent to distribute in proximity of a school.

Hope argued that his prior South Carolina convictions were not predicate offenses under the ACCA. The district court overruled Hope’s objection and imposed a minimum sentence of 15-years’ incarceration, followed by three years of supervised release.

Standard

The government alleges that Hope did not object during sentencing to the determination that his predicate offenses qualified as a “serious drug offense” under the ACCA. Thus, the government argues that Hope forfeited his ACCA claim and that the court is limited to plain error review.

The court disagrees and reviews the issue de novo because Hope properly and timely objected at sentencing that his prior South Carolina convictions were not serious drug offenses as a matter of law under the ACCA. Even if the court found that plain error review is appropriate here, moreover, the outcome would be the same as the court would correct the district court’s error.

Analysis

To prove that Hope committed an offense under S.C. Code § 44-53-445(A), South Carolina had to establish: “(1) the defendant had actual control, or the right to exercise control over the [marijuana]; (2) he knowingly distributed or delivered the [marijuana]; (3) the substance upon analysis was, in fact, [marijuana]; and (4) the distribution occurred within a one-half mile radius of the grounds of an elementary, middle, secondary or vocational school; public playground or park; or college or university.” At the time of Hope’s state convictions in May 2013, South Carolina defined marijuana as “all species or variety of the marijuana plant” and did not exempt hemp or differentiate marijuana by its THC levels.

Hope argues that the “controlled substance” element of his South Carolina offense, under § 445, is broader than the federal definition of “controlled substance” because, after the 2018 Farm Bill and at the time of his federal sentencing, Congress did not define marijuana plants or its parts with less than 0.3% THC as marijuana. Second, Hope argues that the court should not use the modified approach because § 445 is indivisible as to drug type. The court agrees.

After concluding that § 445 is indivisible as to drug type, the court must determine whether South Carolina’s definition of “a controlled substance” matches the federal definition of “controlled substance” for purposes of qualifying as “a serious drug offense” under the ACCA. Since the court previously determined that § 445 is divisible as to drug conduct, then it stills employ the modified categorical approach to compare the South Carolina controlled substance schedule with the federal schedule.

As the government concedes, the federal drug schedules and South Carolina drug schedules plainly do not match. Since, at the time of Hope’s state convictions, South Carolina defined marijuana as “all species or variety of the marijuana plant,” and did not exempt hemp or differentiate marijuana by its THC levels, and because at the time of his federal conviction, Congress defined marijuana as not including hemp, the court holds that the South Carolina statute is broader than the federal definition. Thus, the court holds that the district court erred in finding that Hope’s state offenses qualified as predicate offenses for the ACCA enhancement.

Though the court’s categorical analysis could end here, it notes that even if § 445 were divisible by drug type, the modified categorical approach would yield the same outcome: there is no match. Finally, as noted above, even if the court were to adopt plain error review, the outcome would be the same.

Vacated and remanded.

Dissent

(Thacker, J.): I agree with the majority that the district court erred when it sentenced Hope pursuant to the ACCA. However, because in my view, we review for plain error, and the district court’s error was not plain, I would affirm the district court.

United States v. Hope (Lawyers Weekly No. 001-051-22, 44 pp.) (Roger Gregory, C.J.) (Stephanie Thacker, J., dissenting) Case No. 20-4420, March 9, 2022. From D.S.C. at Rock Hill (Mary G. Lewis, J.) Paresh S. Patel for Appellant. Thomas Ernest Booth for Appellee. 4th Cir.