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The 1970s in the United States were largely defined by wars, both foreign and domestic: the Vietnam War and the War on Drugs, respectively. As part of President Richard Nixon’s anti-drug offensive, Congress enacted the Controlled Substances Act (CSA), part of the Comprehensive Drug Abuse Prevention and Control Act of 1970. The CSA organized—and criminalized—various drugs into schedules based on their permissible uses and potential for abuse. As states enacted their own versions of the CSA, some states chose to criminalize additional substances that were not included in the CSA.

The Sentencing Reform Act of 1984 and the United States Sentencing Guidelines (Guidelines) followed the CSA. Under federal law, criminal defendants may be subject to a “career offender” sentencing enhancement, which can substantially increase incarceration time, if they have at least two prior felony drug or violent crime convictions. The sentencing guidelines are vague and currently allow state court drug convictions, predicated on substances that are not criminalized under the CSA, to create the basis for a career offender sentencing enhancement under federal law. This Note suggests that the United States Sentencing Commission should revise the Guidelines to make clear that only convictions for drugs that are criminalized under the CSA may serve as predicate offenses for federal sentence enhancements. That is, where states choose to enact drug laws that criminalize more substances than the CSA, convictions under those overbroad laws cannot serve as the basis for a federal career offender sentence enhancement.

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