United States Court of Appeals For the First Circuit No. 19-2030 UNITED STATES OF AMERICA, Appellee, v. MOHAMED ABDULAZIZ, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Leo T. Sorokin, U.S. District Judge] Before Kayatta and Barron, Circuit Judges, and Smith,* District Judge. Michael Tumposky, with whom Hedges & Tumposky, LLP, was on brief, for appellant. Christine J. Wichers, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee. June 2, 2021 * Of the District of Rhode Island, sitting by designation. BARRON, Circuit Judge. Mohamed Abdulaziz ("Abdulaziz") challenges his five-year prison sentence for committing a federal firearms offense in violation of 18 U.S.C. § 922(g). He contends that the District Court erred in applying the enhancement set forth in § 2K2.1(a)(2) of the United States Sentencing Guidelines to him at his sentencing. That guideline subjects a defendant who has been convicted of a § 922(g) offense to a higher base offense level ("BOL") under the Guidelines if he committed that offense "subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2). The question that we must decide turns on a purely legal question: what constitutes a "controlled substance" within the meaning of this guideline? Because we conclude that the District Court erred in resolving it, we vacate the judgment imposing the sentence and remand the case for further proceedings. I. On January 3, 2019, a federal grand jury in the District of Massachusetts indicted Abdulaziz on one count of possession of a firearm and ammunition by a prohibited person in violation of 18 U.S.C. § 922(g)(1). The charged conduct was alleged to have occurred on September 2, 2018. Abdulaziz pleaded guilty to the offense on June 13, 2019. The United States Probation Office prepared a presentence investigation report ("PSR"). Among other things, the - 2 - PSR calculated Abdulaziz's Guidelines Sentencing Range ("GSR") for his § 922(g) offense. The PSR based the calculation in part on the application of the § 2K2.1(a)(2) enhancement. The PSR determined that the enhancement applied based on three state law felony convictions that Abdulaziz had sustained before he committed the § 922(g) offense. The PSR determined that, under the guideline, two of those convictions were of "crime[s] of violence" and one was of "a controlled substance offense." U.S.S.G. § 2K2.1(a)(2). At the sentencing hearing on September 26, 2019, Abdulaziz did not dispute the PSR's determination that his January 2010 Massachusetts conviction of assault with a dangerous weapon (firearm) in violation of Mass. Gen. Laws ch. 265, § 15B(b) -- which he sustained prior to committing the § 922(g) offense -- qualified under § 2K2.1(a)(2) as a "felony conviction[]" of "a crime of violence." The District Court noted at the hearing, however, that the government was "not arguing" that the other conviction that Abdulaziz sustained prior to committing the § 922(g) offense and that the PSR had determined qualified …
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