High Time to Revisit Federal Drug Sentencing: the Confusing Interplay Between Controlled Substances and Career Offender Sentence Enhancements

• Publication year: 2023

High Time to Revisit Federal Drug Sentencing: The Confusing Interplay Between Controlled Substances and Career Offender Sentence Enhancements

Carly Knight

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HIGH TIME TO REVISIT FEDERAL DRUG SENTENCING: THE CONFUSING INTERPLAY BETWEEN CONTROLLED SUBSTANCES AND CAREER OFFENDER SENTENCE ENHANCEMENTS

Carly Knight^*

ABSTRACT

The 1970s in the United States were largely defined by wars, both foreign and domestic: the Vietnam War and the War on Drugs, respectively. As part of President Richard Nixon's anti-drug offensive, Congress enacted the Controlled Substances Act (CSA), part of the Comprehensive Drug Abuse Prevention and Control Act of 1970. The CSA organized—and criminalized—various drugs into schedules based on their permissible uses and potential for abuse. As states enacted their own versions of the CSA, some states chose to criminalize additional substances that were not included in the CSA.

The Sentencing Reform Act of 1984 and the United States Sentencing Guidelines (Guidelines) followed the CSA. Under federal law, criminal defendants may be subject to a "career offender" sentencing enhancement, which can substantially increase incarceration time, if they have at least two prior felony drug or violent crime convictions. The sentencing guidelines are vague and currently allow state court drug convictions, predicated on substances that are

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not criminalized under the CSA, to create the basis for a career offender sentencing enhancement under federal law. This Note suggests that the United States Sentencing Commission should revise the Guidelines to make clear that only convictions for drugs that are criminalized under the CSA may serve as predicate offenses for federal sentence enhancements. That is, where states choose to enact drug laws that criminalize more substances than the CSA, convictions under those overbroad laws cannot serve as the basis for a federal career offender sentence enhancement.

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CONTENTS

Introduction.................................................................................898

I. Background.............................................................................901

A. Historical Context..............................................................901
B. The State of the Law..........................................................903

1. Navigating the Maze of the Sentencing Guidelines.....903
2. The Circuit Split...........................................................904

II. Analysis...................................................................................905

A. Federal Means Federal.....................................................905
B. Jerome and Other Clues from the Supreme Court............907
C. "A Fortress Out of the Dictionary"..................................910
D. The Upshot........................................................................913

III. Proposal.................................................................................915

A. Amending the Guidelines................................................... 915
B. The Commission's Role and Duties...................................916
C. The Downsides..................................................................918
D. Why Not the Supreme Court?............................................919

1. The Commission's Unique Power................................919
2. The Cost of Doing Business.........................................920

Conclusion....................................................................................921

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Introduction

"America's public enemy number one in the United States is drug abuse. In order to fight and defeat this enemy, it is necessary to wage a new all-out offensive."¹ President Nixon's 1970 offensive was the nation's bipartisan War on Drugs—the first of its kind.² As part of this effort, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970, which purported to streamline and clarify federal drug laws while targeting a perceived drug-abuse crisis.³ Title

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II of this Act was the Controlled Substances Act (CSA).⁴ The CSA organized regulated drugs into five schedules based on the drugs' effects on the body, accepted medical uses, and potential for abuse.⁵ States followed suit and, over the next few decades, enacted their own controlled substance laws that largely mirrored the CSA.⁶ Some states, however, broadened their controlled substances acts to include substances not criminalized under the CSA.⁷

After many states enacted their own versions of the CSA, Congress passed the Sentencing Reform Act of 1984.⁸ This Act created the United States Sentencing Commission (Commission) and tasked it with formulating the United States Sentencing Guidelines (Guidelines) for federal courts to use.⁹ The Commission aimed for the Guidelines, and the sentences dealt pursuant to them, to contemplate an offender's prior convictions.¹⁰ Bearing this goal and the CSA in mind, the Commission created a sentence enhancement for "career offenders"—those who, at the time of the offense of conviction, are at least eighteen years old and have two or more prior felony convictions for "controlled substance offense[s]" or "crime[s] of violence."¹¹ The Commission

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defined a "controlled substance offense" but declined to define "controlled substance" in the Guidelines.¹² Thus, courts are left to wonder whether the Guidelines contemplate substances criminalized under state law but not under the CSA.¹³ As the law stands now, defendants with two felony controlled substance offenses under state law may have their federal sentences significantly enhanced, and their freedom significantly diminished, after their first convictions under federal law—an entirely distinct body of law.¹⁴ The Supreme Court has provided guidance on adjacent issues¹⁵ but has not yet decided the issue addressed in this Note: whether a controlled substance offense under a state law that sweeps more broadly than its federal counterpart in terms of defining a "controlled substance" should serve as a predicate offense for a career offender enhancement.¹⁶

Part I will explain the history of the CSA, the promulgation of the Guidelines, and the ambiguities inherent in both. Part II will analyze the current circuit split and address the Supreme Court's guidance on similar issues. Part III proposes a recommended ruling from the Court or, alternatively, an amendment to the current guidelines by the

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Commission to reflect that only offenses involving CSA-regulated substances can qualify as predicate offenses for federal sentence enhancement.

I. Background

A. Historical Context

"The 1960s brought us tie-dye, sit-ins[,] and fears of large-scale drug use."¹⁷ While forty-eight percent of Americans in 1969 thought drug use—specifically marijuana—was a problem, the data show that only four percent of Americans reported trying marijuana that year.¹⁸ In fact, Americans' heaviest drug use was arguably occurring on battlefields in Vietnam, where soldiers regularly used heroin and opium.¹⁹ Even so—perhaps because servicemen were returning as heroin and opium addicts,²⁰ perhaps because overblown fears about stateside drug use seemingly necessitated action,²¹ or perhaps because the Nixon administration needed a way to criminalize being "[B]lack" or "against the [Vietnam] [W]ar"²² —President Nixon focused on civilian drug abuse from the time he was elected until his resignation in 1974.²³ Nowhere else is this focus more clearly embodied than in the CSA.²⁴

The CSA defines "controlled substance" as "a drug or other substance, or immediate precursor" that is included in one of the five

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drug schedules and thus subject to federal regulation.²⁵ Schedule I substances have the highest potential for abuse and no accepted medical use, Schedule II substances have less potential for abuse or limited accepted medical use, and so on.²⁶

In the years following the CSA's enactment, states followed Congress's lead and enacted their own controlled substance legislation.²⁷ Notably, some states' acts criminalize substances or constituent elements outside the CSA's purview.²⁸ This disparity has seemingly confused courts and led to inconsistent sentencing across the nation.²⁹ Congress sought to remedy such "unwarranted sentencing disparit[ies]" through the Sentencing Reform Act of 1984 and its offspring, the Commission.³⁰

In 1987, the Commission promulgated the Guidelines as a reprieve from the "arbitrary and capricious" discretion of courts and the U.S. Parole Commission.³¹ The Guidelines aimed to homogenize sentences while affording trial courts the flexibility to modify sentences based on case-specific circumstances.³² Since the Guidelines' creation, the Commission has revisited its recommendations, conducted multi-year studies, and suggested amendments to Congress.³³ In fact, in 2016, the Commission recommended that Congress amend its directive to the Commission so that the career offender sentence enhancement would only apply to defendants with prior violent crime convictions and not those with controlled substance convictions.³⁴ Congress has yet to take the Commission up on its suggestion.³⁵

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B. The State of the Law

1. Navigating the Maze of the Sentencing Guidelines

Federal judges juggle many factors while presiding over criminal cases: statutes, common-law doctrines, policy considerations, and the case itself. Add to that list the "mind-numbingly complex" Guidelines, and it is little wonder that courts are divided on how to interpret the career offender enhancement.³⁶

Section 4B1.2 of the Guidelines defines a "controlled substance offense" as "an offense under federal or state law . . . that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance."³⁷ The Guidelines do not, however, define "controlled substance."³⁸ Section 4B1.1 of the Guidelines defines "career offender" as an offender who (1)...