United States of America v. Isaac Daniel Bautista

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
Amended February 26, 2021
Before: Mary M. Schroeder, William A. Fletcher, and
Danielle J. Hunsaker, Circuit Judges.
Order;
Opinion by Judge W. Fletcher

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UNITED STATES V. BAUTISTA 2
SUMMARY*
Criminal Law
The panel filed (1) an order withdrawing an opinion filed
November 23, 2020 (previously amended on December 11,
2020); and (2) an amended opinion reversing the district
court’s application of a recidivist sentencing enhancement
under U.S.S.G. § 4B1.2(b), and remanding for resentencing,
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 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
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. BAUTISTA 3
that the error affected the defendant’s substantial rights, and
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, Deputy Appellate Chief;
Michael Bailey, United States Attorney; United States
Attorney’s Office, Tucson, Arizona; for Plaintiff-Appellee.
ORDER
The opinion filed November 23, 2020, and previously
amended on December 11, 2020, and reported at 982 F.3d
563, is amended, and is replaced by the amended opinion
filed with this order.
With the opinion as amended, the panel votes to deny the
petition for rehearing, filed by appellee on December 21,
2020 (Dkt. Entry 32). The petition for rehearing is DENIED.
No further petitions for rehearing or rehearing en banc
will be entertained.

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UNITED STATES V. BAUTISTA 4
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.
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.

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UNITED STATES V. BAUTISTA 5
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,
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,

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UNITED STATES V. BAUTISTA 6
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
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

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UNITED STATES V. BAUTISTA 7
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). As we noted in Leal-Vega, construing the phrase in
the Guidelines to refer to the definition of “controlled
substance” in the CSA—rather than to the varying definitions
of “controlled substance” in the different states—furthers
uniform application of federal sentencing law, thus serving
the stated goals of both the Guidelines and the categorical
approach. Id. at 1166 (citing Taylor v. United States,
495 U.S. 575, 589 (1990)). Our case concerns a different
provision of the Guidelines than in Leal-Vega. We are
concerned here with the term “controlled substance” in the
definition of “controlled substance offense” in § 4B1.2(b)
whereas Leal-Vega analyzed the term “controlled substance”
in the definition of “drug trafficking offense” in § 2L1.2. But
we regard this distinction, and the slight differences in the
drafting histories of the two Guideline provisions, as
immaterial. The relevant text in the two provisions is
identical. And there is no meaningful way to distinguish the
uniformity-in-federal-sentencing rationale that we adopted in
Leal-Vega, which compels the conclusion that “controlled
substance” in § 4B1.2(b) refers to a “controlled substance” as
defined in the CSA. Accord United States v. Townsend,
897 F.3d 66, 71 (2d Cir. 2018); see also United States v.
Gomez-Alvarez, 781 F.3d 787, 794 (5th Cir. 2015); United
States v. Sanchez-Garcia, 642 F.3d 658, 661–62 (8th Cir.

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UNITED STATES V. BAUTISTA 8
2011). But see United States v. Ward, 972 F.3d 364, 369–74
(4th Cir. 2020); United States v. Ruth, 966 F.3d 642, 651–55
(7th Cir. 2020); United States v. Sheffey, 818 F. App’x 513,
519–20 (6th Cir. 2020).
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.
Thus, a court must ask whether Bautista’s prior crime
qualifies as a “controlled substance offense” under the CSA
and the corresponding Guideline at the time of sentencing.
Relying on McNeill v. United States, 563 U.S. 816 (2011),
the government argues that Bautista’s crime must be
compared to federal law at the time of the prior state
conviction. The government misreads McNeill. At issue in
McNeill was a statutory federal sentencing enhancement for
a prior state drug conviction where “a maximum term of
imprisonment of ten years or more is prescribed by law.”
18 U.S.C. § 924(e)(2)(A)(ii). The Court held that the relevant
term of imprisonment was the term prescribed by state law at
the time of the state-law conviction rather than at the time of
sentencing for the federal crime. The Court explained that it
made little sense to analyze a prior state-law conviction under

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UNITED STATES V. BAUTISTA 9
subsequent state law: “[T]he culpability and dangerousness
that [a criminal] history demonstrates[ ]does not cease to exist
when a State reformulates its criminal statutes in a way that
prevents precise translation of the old conviction into the new
statutes.” McNeill, 563 U.S. at 823. The government insists
that McNeill requires us to disregard the present-tense text of
18 U.S.C. § 3553 and U.S.S.G. § 1B1.11, and to apply the
rationale of McNeill to the case now before us.
We disagree with the government. Bautista’s argument
bears little resemblance to the argument in McNeill. Unlike
in McNeill, the state law in our case has not changed. Rather,
federal law has changed. The question before us is whether
the sentencing court should determine the relevance of
Bautista’s prior state conviction under the federal sentencing
law that exists at the time of sentencing or under federal
sentencing law that no longer exists. McNeill nowhere
implies that the court must ignore current federal law and turn
to a superseded version of the United States Code. Indeed, it
would be illogical to conclude that federal sentencing law
attaches “culpability and dangerousness” to an act that, at the
time of sentencing, Congress has concluded is not culpable
and dangerous. Such a view would prevent amendments to
federal criminal law from affecting federal sentencing and
would hamper Congress’ ability to revise federal criminal
law.
Our conclusion also serves the goal of uniformity in
federal sentencing law. Applying superseded versions of the
United States Code depending on when in the past a
defendant committed an identical state crime would cause the
very sentencing disparities Congress has repeatedly stated it
intends to avoid. See 18 U.S.C. § 3553(a)(6) (instructing
judges of “the need to avoid unwarranted sentence disparities

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UNITED STATES V. BAUTISTA 10
among defendants with similar records”); 28 U.S.C.
§ 991(b)(1)(B) (stating that the Sentencing Commission must
set policies to “avoid[] unwarranted sentencing disparities
among defendants with similar records”). By applying
current federal law, we avoid this obvious problem.
We 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, 979 F.3d 738, 746–49 (9th
Cir. 2020). However, that holding was limited to removal in
the immigration context. See id. at 749. 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. As
discussed above, it is 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 the prior state-
law conviction.
Having determined that we must compare Bautista’s prior
state-law conviction with federal law at the time of his 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.

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UNITED STATES V. BAUTISTA 11
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

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UNITED STATES V. BAUTISTA 12
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.

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UNITED STATES V. BAUTISTA 13
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.

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