A federal appeals court has rejected an attempt to use the 2018 federal legalization of hemp to invalidate an earlier state drug conviction that was used to increase a federal prison sentence.
In a decision issued Monday, the U.S. Court of Appeals for the Third Circuit affirmed the denial of compassionate release for Gerald Welch, who argued that changes made by the 2018 Farm Bill meant his earlier Pennsylvania conviction should no longer qualify as a predicate offense for federal sentencing purposes.
Welch pleaded guilty in 2015 to conspiracy to distribute and possession with intent to distribute five or more kilograms of cocaine. His criminal history included a Pennsylvania felony conviction for possession with intent to distribute, which contributed to both a career-offender designation and a then-mandatory 20-year minimum sentence. He ultimately received a 240-month sentence.
In seeking a sentence reduction, Welch pointed to the 2018 Farm Bill’s amendment of the federal Controlled Substances Act to exclude hemp from the federal definition of marijuana. He argued that because Pennsylvania’s definition remained broader, his state offense covered conduct that was no longer prohibited under federal law and therefore should not continue to count against him.
The Third Circuit disagreed.
For the career-offender portion of Welch’s argument, the court cited its 2023 ruling in United States v. Lewis, which held that a controlled substance under the relevant sentencing guideline can be a substance regulated under either state or federal law. As a result, the court said it did not matter that Pennsylvania’s definition of marijuana was broader than the federal definition.
The court also rejected Welch’s challenge to the conviction’s use in increasing his mandatory minimum sentence.
Citing the U.S. Supreme Court’s 2024 decision in Brown v. United States, the panel said courts look to whether the relevant state and federal drug schedules matched when the earlier state crime occurred, rather than whether federal law was subsequently changed.
Because the state and federal definitions of marijuana matched at the time of Welch’s offense, his state conviction remained a valid predicate offense “regardless of any subsequent changes to federal law,” the court said.
Welch separately argued that the First Step Act’s reduction of the applicable mandatory minimum from 20 years to 15 years supported compassionate release. The court rejected that argument as well, citing Supreme Court precedent concerning Congress’ decision not to make such sentencing changes retroactive.
The three-judge panel summarily affirmed the lower court’s decision, finding that Welch’s appeal did not present a substantial question.
The ruling in United States v. Gerald Welch, No. 25-2562.
