South Carolina Possession-With-Intent Convictions Not ACCA Predicates

US v. Hope: Hope pleaded guilty to being a felon in possession of a firearm. At sentencing, he faced enhanced penalties under the Armed Career Criminal Act due to three prior South Carolina convictions for possession of marijuana with intent to distribute in proximity of a school. Hope objected to their treatment as ACCA predicates. The district court overruled those objections and sentenced him to 180 months in prison, the minimum required by ACCA.

On appeal, a divided Fourth Circuit vacated Hope’s sentence. Part of the issue was the proper standard of review to apply. The Government argued that while Hope had objected to his ACCA status at sentencing, he did not specifically object on the grounds on which he now appealed and that review was for plain error. The court disagreed, concluding that Hope had raised the same argument below as before the Fourth Circuit, while noting that “counsel could have provided a better analysis to guide the district court.” Reviewing de novo, therefore, the court concluded that Hope’s prior South Carolina convictions were not “serious drug offenses” under ACCA because at the time of those convictions “marijuana” was defined by the state to include “all species or variety of the marijuana plant,” but since 2018 Congress has defined marijuana federally as excluding “plants or its parts with less than 0.3 percent THC as marijuana.” As such, because the South Carolina statute is indivisible as to drug type (although not as to conduct, as the Fourth Circuit previously held) and defined marijuana more broadly than federal law a violation of it could not be an ACCA predicate. Ultimately, the court concluded that even if plain error applied, the result would be the same – Hope’s sentence would be vacated. 

Judge Thacker dissented, arguing that plain error review applied and that while the ACCA designation was erroneous, it was not plain. Hope had argued in the district court that he had “pled to a duplicitous indictment in state court” that had “charged him with multiple offenses in a single count,” not that the prior convictions weren’t ACCA predicates. As a result, Hope “raises an entirely new claim in this appeal.” On the merits, Judge Thacker argued that the statute was divisible as to drug type, but that the result was the same – Hope’s prior convictions were not ACCA predicates. However, the error was not plain, as up until this case the Fourth Circuit had not decided whether the federal statute to be compared with the state statute was the one in effect at the time the prior convictions occurred or the time of the federal sentencing. As the “law on these key issues in this case was thus far from settled” at the time of sentencing, “it cannot be said that the district court plainly erred.”

Congrats to the Defender office in Maryland on the win!