FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-10448 Plaintiff-Appellee, D.C. No. v. 4:18-cr-01683- RM-DTF-1 ISAAC DANIEL BAUTISTA, Defendant-Appellant. OPINION Appeal from the United States District Court for the District of Arizona Rosemary Márquez, District Judge, Presiding Argued and Submitted September 18, 2020 San Francisco, California Filed November 23, 2020 Before: Mary M. Schroeder, William A. Fletcher, and Danielle J. Hunsaker, Circuit Judges. Opinion by Judge W. Fletcher 2 UNITED STATES V. BAUTISTA SUMMARY* Criminal Law In a case in which the defendant was convicted of possession of ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), the panel reversed the district court’s application of a recidivist sentencing enhancement under U.S.S.G. § 4B1.2(b), and remanded for resentencing. The district court applied the enhancement on the ground that the defendant’s prior state conviction for attempted transportation of marijuana under Arizona Revised Statutes § 13-3405(A)(4) qualified as a “controlled substance offense.” The Arizona statute under which the defendant was convicted included hemp in its definition of marijuana. In 2018, before the defendant’s federal conviction, Congress amended the Controlled Substances Act to exclude hemp from its definition of a controlled substance. Reviewing for plain error, the panel held that because the federal Controlled Substances Act in effect at the time of the defendant’s federal sentencing excluded hemp, the defendant’s Arizona conviction is facially overbroad and not a categorical match. The panel held that the district court therefore plainly erred in applying the § 4B1.2(b) enhancement. The panel concluded that the error affected the defendant’s substantial rights, and * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. BAUTISTA 3 if uncorrected would seriously affect the fairness, integrity, or public reputation of judicial proceedings. COUNSEL J. Ryan Moore (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Tucson, Arizona; for Defendant-Appellant. Angela W. Woolridge (argued), Assistant United States Attorney; Christina M. Cabanillas, Appellate Chief; Michael Bailey, United States Attorney; United States Attorney’s Office, Tucson, Arizona; for Plaintiff-Appellee. OPINION W. FLETCHER, Circuit Judge: Isaac Daniel Bautista appeals a sentence imposed following his conviction of possession of ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Bautista contends that the district court erred in applying a recidivist sentencing enhancement based on his prior state conviction for attempted transportation of marijuana under Arizona Revised Statutes § 13-3405(A)(4). He contends that it was not a conviction for a “controlled substance offense” under § 4B1.2(b) of the U.S. Sentencing Guidelines (“Guidelines”). The Arizona statute under which Bautista was convicted included hemp in its definition of marijuana. However, in 2018, before Bautista’s federal conviction, Congress amended the Controlled Substances Act to exclude hemp from its definition of a controlled substance. 4 UNITED STATES V. BAUTISTA Thus, in 2019, when Bautista was sentenced in this case, the ...
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