Whether a prior conviction involving a substance that is not a controlled substance for the purposes of federal law can render a federal defendant a 'career offender' under U.S.S.G. § 4B1.1

QUESTION PRESENTED The Sentencing Guidelines provide a significant enhancement for a federal criminal defendant deemed to be a career offender. U.S.S.G. § 4B1.1. That enhancement applies when, among other things, “the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). The Guidelines go onto to define a “controlled substance offense” as follows: an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. U.S.S.G. § 4B1.2(a). Whether a “controlled substance offense” is limited to substances prohibited under federal law or whether it also encompasses substances illegal only under relevant state law has divided the lower courts. Many Circuits refuse to provide enhanced punishment in a federal criminal case for substances that Congress has not criminalized. See, e.g., United States v. Townsend, 897 F.3d 66, 72 (2d Cir. 2018) (“In holding that a ‘controlled substance’ refers exclusively to a substance controlled by the [federal Controlled Substances Act], we are in good company. The Fifth, Eighth, and Ninth Circuits have found ‘controlled substance’ in the Guidelines to have the same meaning we now find.” (footnote and citations omitted)). But some Circuits, including the Fourth Circuit below, hold otherwise. See, e.g., United States v. Mills, 485 F.3d 219, 224 (4th Cir. i 2007) (“[T]he Sentencing Commission, by specifying that federal and state violations serve as predicate offenses for career offender status, clearly intended for repeat offenders of both state and federal counterfeit crimes to be subject to an enhanced sentence. See U.S.S.G. § 4B1.2(b).” (original emphasis)). This Petition calls upon this Court to resolve the Circuit split below by answering the following question: 1. Cana prior conviction involving a substance that is not a controlled substance for the purposes of federal law render a federal defendant a “career offender” under U.S.S.G. § 4B1.1? ii