Guerrant v. United States

1 Cite as: 595 U. S. ____ (2022)
Statement of S
OTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
THOMAS JAVION GUERRANT v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21–5099. Decided January 10, 2022
The petition for a writ of certiorari is denied.
Statement of J
USTICE SOTOMAYOR, with whom JUSTICE
BARRETT joins, respecting the denial of certiorari.
Defendants who have two prior felony convictions for a
“controlled substance offense” qualify as “career offen-
der[s]” under the Federal Sentencing Guidelines. See
United States Sentencing Commission, Guidelines Manual
§4B1.1(a) (Nov. 2021) (USSG). As a result, they generally
face dramatically higher sentencing ranges for their crime
of conviction.
This petition implicates a split among the Courts of Ap-
peals over the proper definition of a “controlled substance
offense,” and, accordingly, over which defendants qualify as
career offenders. In relevant part, USSG §4B1.2(b) defines
a “controlled substance offense” as “an offense under federal
or state law . . . that prohibits the manufacture, import, ex-
port, distribution, or dispensing of a controlled substance
(or a counterfeit substance) or the possession of ” such sub-
stances with intent to engage in such activities. The Guide-
lines do not define the term “controlled substance.”
The Second and Ninth Circuits have turned to federal law
to define the term: In those Circuits, a defendant has com-
mitted a controlled substance offense only if the offense in-
volved a substance listed in the Controlled Substances Act
(CSA), 21 U. S. C. §801 et seq. See United States v. Bau-
tista, 989 F. 3d 698, 702–704 (CA9 2021); United States v.
Townsend, 897 F. 3d 66, 68, 71 (CA2 2018). The First and
Fifth Circuits have not directly resolved the question, but

2 GUERRANT v. UNITED STATES
Statement of S
OTOMAYOR, J.
have indicated agreement with this approach. See United
States v. Crocco, 15 F. 4th 20, 23–25 (CA1 2021) (describing
reference to federal law as “appealing” and reference to
state law as “fraught with peril”); United States v. Gomez-
Alvarez, 781 F. 3d 787, 792–794 (CA5 2015) (relying on the
CSA to interpret the term “controlled substance” in USSG
§2L1.2). In contrast, the Fourth Circuit, where the instant
petition arose, along with the Seventh, Eighth, and Tenth
Circuits, defines what qualifies as a “controlled substance”
based on the relevant state law. See United States v. Jones,
15 F. 4th 1288, 1291–1296 (CA10 2021); United States v.
Henderson, 11 F. 4th 713, 718–719 (CA8 2021); United
States v. Ward, 972 F. 3d 364, 371–374 (CA4 2020); United
States v. Ruth, 966 F. 3d 642, 651–654 (CA7 2020). Defend-
ants in those Circuits therefore qualify as career offenders
for federal sentencing purposes even if their only prior of-
fenses involved substances not prohibited under federal
law. As a result, they are subject to far higher terms of im-
prisonment for the same offenses as compared to defend-
ants similarly situated in the Second or Ninth Circuits.
*
It is the responsibility of the Sentencing Commission to
address this division to ensure fair and uniform application
of the Guidelines. Cf. Braxton v. United States, 500 U. S.
344, 348 (1991). In March 2021, I wrote concerning an un-
resolved Circuit split over the proper interpretation of a
Guideline. See Longoria v. United States, 592 U. S. ___.
The Sentencing Commission lacked a quorum of voting
members then, and it still does today. At this point, the
Sentencing Commission has not had a quorum for three full
——————
*
The Sixth and Eleventh Circuits have issued internally inconsistent
decisions on the question. See United States v. Solomon, 763 Fed. Appx.
442, 447 (CA6 2019) (noting inconsistency in past opinions); United
States v. Stevens, 654 Fed. Appx. 984, 987 (CA11 2016) (federal law);
United States v. Peraza, 754 Fed. Appx. 908, 909–910 (CA11 2018) (state
law).

3 Cite as: 595 U. S. ____ (2022)
Statement of S
OTOMAYOR, J.
years. As the instant petition illustrates, the resultant un-
resolved divisions among the Courts of Appeals can have
direct and severe consequences for defendants’ sentences. I
hope in the near future the Commission will be able to re-
sume its important function in our criminal justice system.