United States of America v. Ermin Adzemovic

United States Court of Appeals
For the Eighth Circuit
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No. 21-3751
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United States of America
Plaintiff - Appellee
v.
Ermin Adzemovic
Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Eastern
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Submitted: October 17, 2022
Filed: March 2, 2023
[Unpublished]
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Before SMITH, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
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PER CURIAM.
Ermin Adzemovic pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The district court1 sentenced him to
1 The Honorable Peter D. Welte, Chief Judge, United States District Court for
the District of North Dakota.

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120 months in in prison. He appeals. Having jurisdiction under 28 U.S.C. § 1291,
this court affirms.
Adzemovic argues the court erred in calculating his guidelines’ range by
counting his two prior North Dakota marijuana convictions as controlled substance
offenses. This court reviews de novo. United States v. Henderson, 11 F.4th 713,
716 (8th Cir. 2021).
First, he claims the offenses are not controlled substance offenses because
North Dakota’s definition of marijuana was broader when he committed the offenses
than when he was sentenced. A “controlled substance offense” is a state or federal
offense, punishable by imprisonment for a term exceeding one year, that prohibits,
among other things, the manufacture or distribution of a “controlled substance.”
U.S.S.G. § 4B1.2(b). Determining whether a prior conviction is a controlled
substance offense, this court applies the “categorical approach.” See United States
v. Thomas, 886 F.3d 1274, 1275 (8th Cir. 2018), citing Taylor v. United States, 495
U.S. 575, 588 (1990). Under the categorical approach, this court looks “not to the
facts of the particular prior case, but instead to whether the state statute defining the
crime of conviction categorically fits within the generic federal definition of a
corresponding controlled substance offense.” United States v. Maldonado, 864 F.3d
893, 897 (8th Cir. 2017) (cleaned up).
Adzemovic claims his prior convictions stopped being controlled substance
offenses when North Dakota’s definition of marijuana was narrowed to exclude
hemp. Compare N.D. Cent. Code § 19-03.1-01(18) (2013) and (2016), with N.D.
Cent. Code § 19-03.1-01(17), (18) (2021). Determining whether a conviction
qualifies as a controlled substance offense, sentencing courts look not to the law at
the time of sentencing, but rather to the law “at the time of the conviction.” United
States v. Doran, 978 F.3d 1337, 1340 (8th Cir. 2020). See United States v. Jackson,
2022 WL 303231, at *2 (8th Cir. Feb. 2, 2022) (per curiam) (unpublished)
(considering whether the prior marijuana convictions were controlled substance
offenses at the time of the conviction). Adzemovic does not deny that his

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convictions were controlled substance offenses at the time of the conviction. The
court did not err in counting them.
Next, Adzemovic claims the convictions do not count because the term
“controlled substance offense” refers to the federal drug schedules and not the state
law defining them. Although he initially argued this, he abandoned the argument at
sentencing in light of United States v. Henderson, 11 F.4 th 713 (8th Cir. 2021). At
sentencing he said:
My argument before was that measured against the federal statute in
existence today [the North Dakota statute] would be overbroad. That
analysis changes post Henderson but instead of looking at the federal
statute today we’re looking at the state statute today.
. . . .
Essentially it’s the same argument as raised before. However, instead
of using the federal law in existence today as the control, it would be
the state law.
. . . .
And my position here today is that after Henderson we look towards
state law.
He waived the argument, and this court will not consider it. See United States v.
Chavarria-Ortiz, 828 F.3d 668, 671 (8th Cir. 2016) (“Waiver precludes appellate
review.”).
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The judgment is affirmed.
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