Background
Rey David Fulcar was charged with three federal counts: unlawful firearm possession in violation of 18 U.S.C. § 922(g)(1) and two counts of drug possession with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The charges arose from a search of his home that yielded drugs, a firearm, and ammunition. Fulcar moved to suppress the evidence and to dismiss the firearms count under the Second Amendment, but both motions were denied. On December 20, 2023, Fulcar entered unconditional guilty pleas to all three counts.
At sentencing, the District Court applied three sentencing enhancements under the U.S. Sentencing Guidelines, including the career offender enhancement under § 4B1.1(b)(3), which applies when a defendant has at least two prior felony convictions for controlled substance offenses. The enhancement was based on Fulcar’s 2008 Massachusetts conviction for possession with intent to distribute cocaine. The District Court sentenced Fulcar to 96 months imprisonment, below the Guidelines range of 151 to 188 months, but stated it would have imposed the same sentence regardless of which Guidelines enhancements applied.
The Court’s Holding
The First Circuit affirmed all convictions and the sentence. On Fulcar’s challenge to his guilty pleas under Federal Rule of Criminal Procedure 11, the court held that Rule 11 does not require district courts to inform defendants that unconditional guilty pleas bar appellate review of suppression motions. The court found Fulcar failed to show plain error because First Circuit precedent, including United States v. Williams, links Rule 11’s requirements to due process and does not require notification of the suppression-appeal waiver.
Regarding the Second Amendment challenge to § 922(g)(1), the court held that Fulcar forfeited the argument by failing to develop it adequately on appeal. Fulcar merely incorporated his motion to dismiss without addressing controlling First Circuit precedent (United States v. Torres-Rosario) that the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen did not overturn.
On the sentencing issue, the court found error in applying the career offender enhancement. The court agreed with Fulcar that the Guidelines employ a “time-of-federal-sentencing” approach to determine whether a substance qualifies as a “controlled substance offense.” Because ioflupane (a cocaine derivative) was removed from Schedule II of the federal Controlled Substances Act in 2015 and remained excluded at the time of Fulcar’s 2026 federal sentencing, his 2008 Massachusetts conviction for cocaine possession did not qualify as a controlled substance offense under the career offender guideline. However, the court affirmed the sentence because it was harmless error—the District Court explicitly stated it would have imposed the same 96-month sentence regardless of the Guidelines calculation.
Key Takeaways
- Rule 11 does not require courts to inform defendants that unconditional guilty pleas preclude appellate review of suppression motion denials.
- Prior state drug convictions count as “controlled substance offenses” for sentencing enhancement purposes only if the substance was controlled under federal law at the time of federal sentencing, not at the time of the prior conviction.
- When a substance is removed from federal drug scheduling after a conviction, the prior conviction may no longer serve as a qualifying predicate for sentencing enhancements applied later.
- Errors in applying sentencing enhancements are harmless if the sentencing court indicates it would have imposed the same sentence regardless.
Why It Matters
This decision clarifies the temporal scope for determining whether prior drug convictions count as “controlled substance offenses” under federal sentencing guidelines. By adopting a “time-of-federal-sentencing” approach, the court held that substances removed from federal scheduling after conviction no longer qualify as predicates for enhancements applied years later. This ruling has significant implications for plea negotiations and sentencing calculations in cases involving drug-related predicate offenses, as prosecutors and defendants must now account for potential changes to federal drug schedules when assessing enhancement exposure.
The decision also confirms that Bruen and Heller did not invalidate categorical prohibitions on firearm possession by convicted felons, rejecting the defendant’s Second Amendment challenge. Additionally, by affirming through harmless error analysis, the court provided guidance on when sentencing errors need not be reversed when the court makes clear it would reach the same sentence under any calculation of the Guidelines.