Virginia Controlled Substance Conviction Is “Controlled Substance Offense,” Even If State Statute Is Broader Than Federal

US v. Ward: Ward was convicted of distributing cocaine and classified as a career offender. The basis for that designation was two prior convictions in Virginia for possession of heroin with intent to distribute. The district court rejected Ward’s argument that because the Virginia statute at issue defined “controlled substances” more broadly than federal law his prior convictions could not be “controlled substance offenses.” He was sentenced to 120 months in prison.

The Fourth Circuit affirmed Ward’s sentence, but did so in a divided fashion. The court noted that the Guideline definition of controlled substance offense required a violation of either federal or state law that then must by punishable by more than one year in prison and involve particular actions involving a “controlled substance.” Ward’s argument was that Virginia’s definition of “controlled substance” was broader than federal law’s. The court turned to the Black’s definition of “controlled substance” as “any type of drug whose manufacture, possession, and use is regulated by law” and concluded that the substances covered by the Virginia statute met that definition. When examining a state conviction, “we look to see how the state law defining that offense defines the punishment and the prohibited conduct.” The Guideline definition “refers neither to the federal definition of a ‘controlled substance’ nor to the federal drug schedules” and, furthermore, the Sentencing Commission has shown in other contexts it knows how to cross-reference to such statutes.

Chief Judge Gregory concurred in the result, but got there in a different way. He argued that the majority had ignored prior Fourth Circuit decisions that held that the Virginia statute at issue was divisible and that the identity of the drug involved was an element of the offense. Applying that law, and the modified categorical approach, it was clear that Ward’s prior conviction was for distributing a controlled substance (heroin) that was covered by federal law as well as Virginia’s. Instead, he argued, the majority had “ignor[ed] our recent precedent and creat[ed] an entirely new framework that requires us to split from several of our sister circuits.”