US v. Fulcar
Split Score
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Case Summary
Disposition
Affirmed
The First Circuit affirmed Rey David Fulcar’s firearm and drug convictions and 96-month sentence. While the panel found the district court erred in treating a prior Massachusetts cocaine conviction as a qualifying predicate under the career-offender guideline, it deemed the error harmless because the judge stated she would impose the same below-guidelines sentence regardless. The court also rejected challenges to the validity of Fulcar’s guilty pleas and to the constitutionality of 18 U.S.C. § 922(g)(1).
Circuit Split Identified
Legal Issue
Whether the term “controlled substance” in U.S.S.G. § 4B1.2(b)’s definition of a “controlled substance offense” is (a) keyed solely to substances listed in the federal Controlled Substances Act and determined as of the date of the defendant’s federal sentencing, or (b) includes substances controlled by the law of the convicting state even if they are not on the federal schedules (and/or should be measured as of the date of the prior conviction).
Circuit Positions
‘Controlled substance’ in § 4B1.2(b) means a substance listed on the federal CSA schedules in effect at the time of federal sentencing; state-only controlled substances do not qualify.
A predicate state offense qualifies if the substance was controlled by that state at the time of the state conviction, even if the substance is not listed on the federal schedules; timing reference is generally the date of the prior conviction.
Conflict Summary
The First, Second, Fifth and Ninth Circuits hold that § 4B1.2(b) looks only to substances controlled under federal law and that the relevant schedules are those in effect at the time of the federal sentencing. The Third, Fourth, Sixth, Seventh, Eighth, Tenth and Eleventh Circuits count any substance criminalized by the state of conviction (regardless of federal scheduling) and generally measure controlled-substance status as of the date of the prior conviction.