United States v. 2020-12-11 | 19-10448 | USA V. ISAAC BAUTISTA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ISAAC DANIEL BAUTISTA,
Defendant-Appellant.
No. 19-10448
D.C. No.
4:18-cr-01683-
RM-DTF-1
ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the District of Arizona
Rosemary Márquez, District Judge, Presiding
Argued and Submitted September 18, 2020
San Francisco, California
Filed November 23, 2020
Amended December 11, 2020
Before: Mary M. Schroeder, William A. Fletcher, and
Danielle J. Hunsaker, Circuit Judges.
Order;
Opinion by Judge W. Fletcher

UNITED STATES V. BAUTISTA2
SUMMARY
*
Criminal Law
In a case in which the defendant was convicted of
possession of ammunition by a convicted felon in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2), the panel reversed the
district court’s application of a recidivist sentencing
enhancement under U.S.S.G. § 4B1.2(b), and remanded for
resentencing.
The district court applied the enhancement on the ground
that the defendant’s prior state conviction for attempted
transportation of marijuana under Arizona Revised Statutes
§ 13-3405(A)(4) qualified as a “controlled substance
offense.”
The Arizona statute under which the defendant was
convicted included hemp in its definition of marijuana. In
2018, before the defendant’s federal conviction, Congress
amended the Controlled Substances Act to exclude hemp
from its definition of a controlled substance. Reviewing for
plain error, the panel held that because the federal Controlled
Substances Act in effect at the time of the defendant’s federal
sentencing excluded hemp, the defendant’s Arizona
conviction is facially overbroad and not a categorical match.
The panel held that the district court therefore plainly erred in
applying the § 4B1.2(b) enhancement. The panel concluded
that the error affected the defendant’s substantial rights, and
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

UNITED STATES V. BAUTISTA3
if uncorrected would seriously affect the fairness, integrity, or
public reputation of judicial proceedings.
COUNSEL
J. Ryan Moore (argued), Assistant Federal Public Defender;
Jon M. Sands, Federal Public Defender; Office of the Federal
Public Defender, Tucson, Arizona; for Defendant-Appellant.
Angela W. Woolridge (argued), Assistant United States
Attorney; Christina M. Cabanillas, Appellate Chief; Michael
Bailey, United States Attorney; United States Attorney’s
Office, Tucson, Arizona; for Plaintiff-Appellee.
ORDER
This court’s opinion filed November 23, 2020, and
appearing at — F.3d —, 2020 WL 6865043 (9th Cir. 2020),
is hereby amended as follows:
1. At 2020 WL 6865043, at *3, change <However, that
holding was limited to removal in the immigration context,
not the Armed Career Criminal Act context seen here. See id.
at *8 & n.6.> to <However, that holding was limited to
removal in the immigration context. See id. at *8.>
2. At 2020 WL 6865043, at *3, change <None of those
considerations apply here, where we are applying the
Sentencing Guidelines.> to <None of those considerations

UNITED STATES V. BAUTISTA4
apply here, where we are determining whether a defendant is
a “career offender” under the Sentencing Guidelines. See
U.S.S.G. § 4B1.1, 4B1.2.>
An amended opinion is filed herewith. Any petition for
rehearing and/or rehearing en banc shall be filed by
December 21, 2020.
OPINION
W. FLETCHER, Circuit Judge:
Isaac Daniel 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 under Arizona Revised Statutes § 13-3405(A)(4).
He contends that it was not a conviction for a “controlled
substance offense” under § 4B1.2(b) of the U.S. Sentencing
Guidelines (“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. We
reverse and remand for resentencing.

UNITED STATES V. BAUTISTA5
I. Factual and Procedural Background
On May 8, 2018, authorities arrested Bautista on an
outstanding warrant for a probation violation. When Bautista
was booked into the county jail, authorities discovered a pen
in his pocket containing one round of .22 caliber ammunition.
Bautista was indicted in federal court for possession of
ammunition by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). After a two-day trial, the jury
returned a verdict of guilty.
Under the Guidelines, Bautista would have normally
received a Base Offense Level of 14 for the offense, as he
was a prohibited possessor. See U.S.S.G. § 2K2.1(a)(6). But
in the Presentencing Investigation Report (“PSR”), the
probation officer concluded that Bautista’s 2017 state
conviction for “Attempted Unlawful Transportation of
Marijuana for Sale,” in violation of Arizona Revised Statutes
§ 13-3405(A)(4), qualified as a “controlled substance
offense” as defined in § 4B1.2(b). This recidivist
enhancement resulted in a six-level increase to a Base
Offense Level of 20. See U.S.S.G. § 2K2.1(a)(4)(A).
Bautista objected to the PSR but argued only that the base
offense level should be reduced by two levels because he had
accepted responsibility under § 3E1.1. He did not object to
the PSR’s conclusion that his prior state conviction was a
“controlled substance offense” under the Guidelines.
At sentencing, on December 10, 2019, the court relied on
the PSR’s calculation of a Base Offense Level of 20, but it
sustained Bautista’s objection and reduced the offense level
by two levels for acceptance of responsibility. For Bautista’s
Total Offense Level of 18 and Criminal History Category III,

UNITED STATES V. BAUTISTA6
the Guidelines prescribed an advisory range of 33 to
41 months. See U.S.S.G. ch. 5, pt. A. The district court
sentenced Bautista to 30 months of imprisonment, three years
of supervised release, and a special assessment of $100.
Bautista timely appealed his sentence.
II. Standard of Review
We review for plain error when a defendant fails to object
to a sentencing calculation. See United States v. Depue,
912 F.3d 1227, 1232 (9th Cir. 2019) (en banc). Plain error is
“(1) error, (2) that is plain, and (3) that affects substantial
rights.” Johnson v. United States, 520 U.S. 461, 462 (1997).
If these three conditions are met, we may exercise our
discretion to notice an error that “seriously affects the
fairness, integrity, or public reputation of judicial
proceedings.” United States v. Ameline, 409 F.3d 1073, 1078
(9th Cir. 2005) (en banc).
An error is plain if it is “contrary to the law at the time of
appeal.” Id. (quoting Johnson, 520 U.S. at 468). It affects
substantial rights if the defendant can “demonstrate a
reasonable probability that [he] would have received a
different sentence if the district court had not erred.” Depue,
912 F.3d at 1234 (quoting United States v. Joseph, 716 F.3d
1273, 1280 (9th Cir. 2013)). With respect to substantial
rights, the Supreme Court has held that, “[w]hen a defendant
is sentenced under an incorrect Guidelines range[,] . . . the
error itself can, and most often will, be sufficient to show a
reasonable probability of a different outcome absent the
error.” Molina-Martinez v. United States, 136 S. Ct. 1338,
1345 (2016). Finally, an error in calculating the Guidelines
range “will in the ordinary case . . . seriously affect the

UNITED STATES V. BAUTISTA7
fairness, integrity, or public reputation of judicial
proceedings, and thus will warrant relief.” Rosales-Mireles
v. United States, 138 S. Ct. 1897, 1903 (2018).
III. Discussion
For a defendant who has violated 18 U.S.C. §§ 922(g)(1)
and 924(a)(2), the Guidelines provide for a Base Offense
Level of 20 if the offense was committed “subsequent to
sustaining one felony conviction of . . . a controlled substance
offense.” U.S.S.G. § 2K2.1(a)(4)(A). A “controlled
substance offense” is “an offense under federal or state law,
punishable by imprisonment for a term exceeding one year,
that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance . . . .” U.S.S.G.
§ 4B1.2(b). We have interpreted the term “controlled
substance” as used in the Guidelines to mean a substance
listed in the Controlled Substances Act (“CSA”), 21 U.S.C.
§ 801 et seq. See United States v. Leal-Vega, 680 F.3d 1160,
1167 (9th Cir. 2012).
In imposing a sentence, the district court must consider
the sentencing guidelines range “that . . . [is] in effect on the
date the defendant is sentenced.” 18 U.S.C.
§ 3553(a)(4)(A)(ii). The Guidelines provide that a court must
use the manual that is “in effect on the date that the defendant
is sentenced,” unless it would violate the Ex Post Facto
Clause. See U.S.S.G. § 1B1.11; see also Peugh v. United
States, 569 U.S. 530, 544–45 (2013) (holding that the Ex Post
Facto Clause is violated when a change to the Guidelines
adopted after the instant offense was committed results in an
increased sentencing range). Bautista’s case poses no Ex
Post Facto concerns because applying federal law at the time
of sentencing results in a lower, not higher, sentencing range.

UNITED STATES V. BAUTISTA8
Thus, a court must ask whether Bautista’s prior crime
qualifies as a “controlled substance offense” at the time of
sentencing.
We briefly note that we have recently held that, in
determining whether a lawful permanent resident is
removable based on a prior state-law conviction, the question
is whether the state-law crime was a categorical match at the
time of conviction. See Medina-Rodriguez v. Barr, No.
19-72681, 2020 WL 6373434, at *6–8 (9th Cir. Oct. 30,
2020). However, that holding was limited to removal in the
immigration context. See id. at *8. We based our decision in
Medina-Rodriguez on a Supreme Court opinion concerning
non-citizen removal, on our reading of the immigration
statutes, and on the policy importance of disclosure of the
then-understood immigration consequences to defendants
considering a guilty plea to the state-law charge. None of
those considerations apply here, where we are determining
whether a defendant is a “career offender” under the
Sentencing Guidelines. See U.S.S.G. § 4B1.1, 4B1.2. The
text of the Guidelines makes clear that the issue at sentencing
is the nature of the prior state-law crime under federal law at
the time of sentencing rather than at the time of conviction.
Having determined that we must compare Bautista’s prior
state-law conviction with federal law at the time of federal
sentencing, we now apply the categorical approach to
determine whether the prior conviction qualified as a
“controlled substance offense” under the Guidelines. United
States v. Brown, 879 F.3d 1043, 1047–48 (9th Cir. 2018).
Under the categorical approach, we do not analyze the
underlying facts of a conviction, but rather the elements of
the state crime, which we then compare to the elements of the
generic offense. See Descamps v. United States, 570 U.S.

UNITED STATES V. BAUTISTA9
254 (2013). If a state statute expressly defines the crime
more broadly than the generic federal offense, there is no
categorical match. Lopez-Aguilar v. Barr, 948 F.3d 1143,
1147 (9th Cir. 2020); accord United States v. Vidal, 504 F.3d
1072, 1082 (9th Cir. 2007) (en banc), abrogated on other
grounds as recognized in Cardozo-Arias v. Holder, 495 F.
App’x 790, 792 n.1 (9th Cir. 2012). A state drug statute is
therefore categorically overbroad if it includes substances
other than those listed in the federal CSA. Leal-Vega,
680 F.3d at 1167.
Both marijuana and hemp are plants of the Cannabis
sativa species, but they differ dramatically in the quantity of
the psychoactive substance THC, or delta-9
tetrahydrocannabinol, that they contain. Unlike marijuana,
hemp contains “only a trace amount of the THC contained in
marijuana varieties grown for psychoactive use.” Hemp
Indus. Ass’n v. DEA, 357 F.3d 1012, 1013 n.2 (9th Cir. 2004).
Prior to 2018, the federal CSA defined “marihuana” to
include hemp. The statutory definition included “all parts of
the plant Cannabis sativa L.” except certain minor
components such as the mature stalks of the plant and
sterilized seeds incapable of germination. See 21 U.S.C.
§ 802(16) (2012). Because hemp is a Cannabis sativa plant,
the CSA’s definition of marijuana included hemp. See, e.g.,
Hemp Indus. Ass’n v. DEA, 333 F.3d 1082, 1085 n.2 (9th Cir.
2003).
On December 20, 2018, the President signed into law the
Agriculture Improvement Act, Pub. L. 115-334, 132 Stat.
4490. The Act removed “hemp” from the schedule of
controlled substances, specifying that “[t]he term ‘marihuana’
does not include—(i) hemp, as defined in section 1639o of

UNITED STATES V. BAUTISTA10
Title 7.” 21 U.S.C. § 802(16); see also § 12619, 132 Stat. at
5018. Section 1639o defines hemp as “the plant Cannabis
sativa L. and any part of that plant . . . with a delta-9
tetrahydrocannabinol concentration of not more than
0.3 percent on a dry weight basis.” 7 U.S.C. § 1639o(1); see
also § 10113, 132 Stat. at 4908.
Bautista was convicted in 2017 of “Attempted Unlawful
Transportation of Marijuana for Sale” under Arizona law.
The substantive crime was (and is) defined as “knowingly . . .
transport[ing] for sale . . . marijuana.” Ariz. Rev. Stat.
§ 13-3405(A)(4). Arizona law defines “marijuana” as “all
parts of any plant of the genus cannabis, . . . whether growing
or not, and the seeds of such plant.” Id. § 13-3401(19). The
definition excluded only “the mature stalks of such plant or
the sterilized seed of such plant which is incapable of
germination.” Id. Arizona’s law contains no textual
exclusions for hemp or for cannabis plants of a low THC
concentration.
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 Section 13-3405 of the
Arizona Revised Statutes did not, the latter crime’s “greater
breadth is evident from its text.” See Vidal, 504 F.3d at 1082.
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.

UNITED STATES V. BAUTISTA11
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. An
error in the Guidelines range “most often [is] sufficient to
show a reasonable probability of a different outcome absent
the error.” Molina-Martinez, 136 S. Ct. at 1345. If the
district court again applies a two-level reduction, it will arrive
at a Total Offense Level of 12 and a Guidelines range of only
15 to 21 months—less than half of the range of 33 to
41 months under which Bautista was sentenced. U.S.S.G.
ch. 5, pt. A. 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. Rosales-Mireles, 138 S. Ct. at 1903.
REVERSED and REMANDED.