The full U.S. Court of Appeals for the Tenth Circuit has declined to rehear a case over what constitutes a “controlled substance” for sentencing purposes, but one judge dissented, arguing that the court was passing up an opportunity to settle an issue “with far-reaching implications in our circuit and nationally.”
Last October in United States v. Jones, a three-judge panel of the 10th Circuit rejected defendant Patrick LaJuan Jones’ challenge to his sentence for a firearms offense.
Jones argued that, after he pleaded guilty to being a felon in possession of a firearm, the U.S. Probation and Pretrial Services Office miscalculated his base-offense level by factoring in a prior Oklahoma conviction for possession with intent to distribute a controlled substance, according to the three-judge panel’s opinion written by Judge Joel Carson.
Jones contended that the Sentencing Commission did not intend to include state convictions based on a controlled substance not identified in the Controlled Substances Act to serve as predicate offenses when determining a defendant’s base-level offense.
The three-judge panel disagreed, however. Carson wrote that “Congress gave the Sentencing Commission broad discretion in drafting the Guidelines and the authority to determine what constitutes a ‘controlled substance offense’ for the purpose of enhancing a career offender’s sentence.”
Carson reasoned that “ignoring prior state-felony convictions in sentencing determinations, whether or not they involve non-CASA-listed substances, flouts Congress’s intent that the Guidelines prescribe an enhanced sentence for defendants with ‘a history of two or more prior Federal, State, or local felony convictions for offenses committed on different occasions.”
Judge Harris L. Hartz and Judge Gregory A. Phillips concurred with Carson’s opinion, affirming a ruling by the U.S. District Court for the Western District of Oklahoma.
In a May 9 order, the 10th Circuit rejected Jones’ petition for rehearing en banc.
But Judge Veronica S. Rossman issued a dissent, stating that the standards required for an en banc review have been met in this case.
“The panel decision in Jones fails to contend with binding precedent and reaches the wrong result on a recurring question of exceptional public importance with far-reaching implications in our circuit and nationally,” Rossman stated. “I respectfully submit en banc review was warranted and should have been granted.”
Rossman said the question posed in this case “comes up frequently, and all stakeholders in the federal sentencing process depend on its accurate resolution.”
“The question in Jones is how to define ‘controlled substance’ in U.S.S.G. § 4B1.2(b). Does that term have a uniform definition or does its meaning vary according to the state of conviction?” Rossman said. “The Jones panel—invoking plain-language analysis—held the latter. I respectfully disagree. Jones cannot be squared with the purpose of the Guidelines, the categorical approach, and the long-standing requirement of national uniformity in federal sentencing law established in [the 1990 U.S. Supreme Court case] Taylor v. United States. Our sister circuits are sharply divided on the question presented in Jones and the correct approach to answering it. Likewise, our court’s precedent has employed inconsistent methodology in construing undefined terms in § 4B1.2 and related guidelines.”
Kyle E. Wackenheim could not be immediately reached for comment. The Office of the U.S. Attorney for the Western District of Oklahoma declined to comment.