Career Offender Predicate Comparisons Made at Time of Sentencing, Not Time of Original Conduct

US v. Nelson: Nelson pleaded guilty to a drug offense and being a felon in possession of a firearm. At sentencing, the district court classified him as a career offender based on a 2017 Virginia drug distribution conviction and a 2012 federal conviction for distribution of crack. He was sentenced to 151 months in prison, the bottom of the advisory Guideline range.

On appeal, the Fourth Circuit affirmed Nelson’s sentence, concluding that both prior convictions were “controlled substance offenses,” but for different reasons. As to the Virginia conviction, the court rejected Nelson’s argument that the statute at issue there was similar enough to the West Virginia one in Campbell for that case to apply. Instead, the court found it closer to the federal statute it concluded in Groves was a controlled substance offense. As to the federal conviction, the court rejected Nelson’s argument that it was no longer a controlled substance offense because it covered a pair of substances (a cocaine derivative and “hemp-type marijuana”) that are no longer covered by Schedule I or II. Relying on prior precedent, and the Supreme Court’s recent decision in Brown, the court concluded that a “time of sentencing” test is appropriate and so long as “every substance that could have supported his 2012 conviction was in schedule I or II at the time of his present sentencing.” Because Nelson’s prior conviction involved crack cocaine, which is still covered, the conviction counted as a controlled substance offense.