Campbell Doesn’t Apply to Federal Drug Offenses

US v. Groves: In 2014, Groves was convicted of aiding and abetting the distribution of crack cocaine under 21 U.S.C. 841, for which he received probation. In 2020, however, Groves was discovered in possession of a firearm and charged with being a felon in possession. After his guilty plea, the main issue at sentencing was whether his 2014 drug conviction was a “controlled substance offense” under the Guidelines (thus increasing his base offense level). Groves argued that it was not under the Fourth Circuit’s decision in Campbell, which held that West Virginia drug offenses did not meet that definition. The district court rejected that argument and imposed a sentence at the bottom of the resulting advisory Guideline range.

On appeal, the Fourth Circuit affirmed Groves’ sentence. Groves argued that, like the attempt offense at issue in Campbell (as well as conspiracy), aiding and abetting is listed as part of the definition of controlled substance offense (and “crime of violence”) in the Guideline commentary and, under Campbell, that expanded definition cannot apply. The court disagreed, adopting the Government’s argument that aiding and abetting was not an offense in of itself, but only a theory of liability. Thus, “an offense prosecuted on an aiding and abetting theory can qualify as a controlled substance offense . . . in that it is the same as the underlying substantive offense.” Moving on, the court then considered whether a substantive 841 offense qualified as a controlled substance offense. The court concluded it did, adopting the distinction of other circuits between “attempted transfer,” which is included in the definition of “delivery,” and “attempted delivery,” with attempted transfer being “a completed delivery rather than an attempt crime.” This avoids rendering 21 U.S.C. 846, the drug attempt and conspiracy statute, superfluous. This allowed the court to distinguish the West Virginia statute in Campbell because it “does not criminalize attempt offenses separately from completed drug distribution offenses.” That there is a separate West Virginia attempt statute “cannot impact our interpretation of 841(a)(1)” and only bears on “the proper construction of the West Virginia drug distribution statute.” There is some suggestion that Campbell was wrong from the start, but the panel is bound by it.