United States v. Fulcar

United States Court of Appeals For the First Circuit No. 24-1524 UNITED STATES, Appellee, v. REY DAVID FULCAR, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Denise J. Casper, U.S. District Judge] Before Barron, Chief Judge, Kayatta and Rikelman, Circuit Judges. Inga L. Parsons for appellant. Alexia R. De Vincentis, Assistant United States Attorney, with whom Leah B. Foley, United States Attorney, was on brief, for appellee. July 6, 2026  BARRON, Chief Judge. Rey David Fulcar ("Fulcar") challenges his three federal convictions, each of which resulted from his pleading guilty to the underlying charges. He contends that his guilty pleas to two of the charged offenses -- one for being a prohibited person in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1) and one for possession with intent to distribute certain drugs in violation of 21 U.S.C. § 841(a)(1) -- must be vacated because those pleas were unknowing and involuntary. He further argues that his firearm-possession conviction must be reversed because the Second Amendment to the United States Constitution bars it. In addition, Fulcar contends that his sentences for his three federal convictions must be vacated because the District Court erred in subjecting him to three enhancements under the United States Sentencing Guidelines (hereinafter "the Guidelines"). Although we reject most of Fulcar's contentions, we conclude that it was error to apply one of these sentencing enhancements -- namely, the enhancement set forth in what is commonly referred to as the career offender guideline -- at his sentencing. We nonetheless affirm his convictions and his sentences because we conclude that the error in subjecting him to that enhancement was harmless. I. On March 1, 2023, a grand jury sitting in the District of Massachusetts handed up an indictment that charged Fulcar with - 2 - three counts. The first count charged him with being a prohibited person in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). The other two counts charged him with possession with intent to distribute controlled substances, in violation of 21 U.S.C. § 841(a)(1).1 The first drug-related count was based on drugs that were found on Fulcar during his arrest in Boston. The second drug-related count was based on drugs that were found in Fulcar's home while it was being searched. On July 3, 2023, Fulcar moved to suppress the evidence seized from his home, arguing that the search that led to the seizure violated the Fourth Amendment to the United States Constitution. The District Court denied the motion after determining that the search was properly carried out pursuant to a valid search warrant and that, in any event, the officer executing the warrant acted in good-faith reliance on it. See United States v. Leon, 468 U.S. 897, 922 (1984) ("Searches pursuant to a warrant will rarely require any deep inquiry into reasonableness, for a warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search." (citation modified)). The facts are stated as they appear in the record. 1 See United States v. McKinney, 5 F.4th 104, 106 n.1 (1st Cir. 2021) ("The facts that follow are taken from the record, particularly the indictment, plea agreement, presentence report, and sentencing hearing transcript." (citing United States v. Santa-Soler, 985 F.3d 93, 95 (1st Cir. 2021))). - 3 -  Thereafter, Fulcar filed a motion to dismiss the firearm-related count. He did so on the ground that § 922(g)(1) violated the Second Amendment to the United States Constitution both on its face and as applied to him. The District Court denied the motion on October 27, 2023. A little less than two months later, on December 20, 2023, Fulcar entered unconditional guilty pleas to all three counts in the indictment. The United States Office of Probation then prepared a Presentence Investigation Report ("PSR"). In calculating Fulcar's recommended sentencing range under the Guidelines for each of his convictions, the PSR applied certain Guidelines sentencing enhancements based on his offense conduct. Specifically, the PSR applied a four-level enhancement under § 2K2.1(b)(6)(B) of the Guidelines in determining Fulcar's total offense level for his § 922(g)(1) conviction. At the time of sentencing, that enhancement applied when the defendant "used or possessed any firearm or ammunition in connection with another felony offense." U.S. Sent'g Guidelines Manual § 2K2.1(b)(6)(B) (U.S. Sent'g Comm'n 2023) [hereinafter "U.S.S.G."]. The PSR also applied the enhancement under § 2K2.1(a)(2) to the § 922(g)(1) conviction. Section 2K2.1(a)(2) yields a base level of twenty-four for a conviction under 18 U.S.C. § 922(g)(1) when "the defendant committed any part of the instant offense - 4 - subsequent to sustaining at least two felony convictions of . . . a controlled substance offense." U.S.S.G. § 2K2.1(a)(2). In addition, the PSR applied a four-level enhancement under § 4B1.1(b)(3) of the Guidelines -- which is commonly referred to as the career offender guideline. The PSR did so in determining Fulcar's total offense level for his two drug-related convictions. The career offender guideline's enhancement applies if the defendant has two or more qualifying prior convictions. Id. § 4B1.1(a). That Guideline treats a prior conviction for a "controlled substance offense" as a qualifying conviction. Id. Fulcar objected to the application of the enhancement in § 2K2.1(b)(6)(B) of the Guidelines on the grounds that he did not "'use or possess' the firearm/ammunition that was found inside a bin/container . . . in connection with another felony offense." Fulcar argued that the firearm in question was "kept inside [his] dwelling to protect him and his girlfriend at the time and not used in any way to facilitate the distribution of drugs." Fulcar objected to the application of both § 2K2.1(a)(2) and § 4B1.1(b)(3) on the grounds that he only had one qualifying prior conviction, not two. Specifically, he objected to the PSR's treatment of his 2008 Massachusetts law conviction for the offense of possession with intent to distribute "cocaine" as a conviction for a "controlled substance offense." - 5 -  The District Court rejected Fulcar's objection to the PSR's application of the career offender enhancement. It also determined that it did not need to rule on Fulcar's objection to the PSR's application of the enhancements under § 2K2.1(b)(6)(B) and § 2K2.1(a)(2) to his § 922(g)(1) conviction because, even if those enhancements did apply, they would not affect Fulcar's ultimate Guidelines sentencing range. That was so, according to the District Court, because Fulcar's three federal convictions had to be grouped under the Guidelines and his offense level for the two federal drug-related counts -- which was higher than even the enhanced total offense level for his conviction for the § 922(g)(1) offense -- drove the recommended sentencing range under the Guidelines for all his convictions. See U.S.S.G. §§ 3D1.2, 3D1.3. The District Court observed, however, that if it did have to reach the question of whether the firearm enhancement applied, then it "would have found . . . that it applied here."2 2 The District Court did not explicitly address whether, in the absence of grouping, it would have found that U.S.S.G. § 2K2.1(a)(2) applied to Fulcar's firearm conviction under 18 U.S.C. § 922(g)(1). It is unclear whether this was intentional or due to a misunderstanding between the parties and the District Court. Nonetheless, as we will explain, the application of U.S.S.G. § 2K2.1(a)(2) -- through a cross-reference -- in this case depends on the application of U.S.S.G. § 4B1.1(b)(3), the career offender guideline. That is so because § 2K2.1(a)(2) applies when the defendant "committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." However, § 2K2.1 indicates in its application notes that - 6 -  The District Court determined that the recommended sentencing range under the Guidelines for Fulcar's three federal convictions was 151 to 188 months of imprisonment. It ultimately imposed, however, a below-Guidelines sentence of 96 months of imprisonment. In imposing that sentence, the District Court noted that "whether or not [it] had accepted [Fulcar's] arguments about what the advisory guideline sentencing range should be, that is, if [it] had accepted them, [it] would have still reached the same sentence [that it was] imposing [t]here, having considered all of the factors under Title 18, United States Code, 3553(a)." The District Court went on to explain that it would have done so because that sentence was "a sufficient and reasonable sentence given all of the sentencing factors, but not greater than necessary, to achieve all of the goals of sentencing" that it had reviewed. "controlled substance offense" is defined in the same way it is defined in the career offender guideline. U.S.S.G. § 2K2.1 cmt. n.1. Therefore, the question of whether it would be error to apply the enhancement under § 2K2.1(a)(2) in this case likely rises and falls with the analysis of whether it would be error to apply the career offender guideline. In any event, because our reasons for finding the application of the career offender guideline harmless apply equally to any erroneous application of this guideline in this case, we need not address its application here any further. - 7 -  II. Fulcar acknowledges that if his unconditional pleas to his federal convictions that were based on evidence that was seized during the search of his home were knowing and voluntary, then he is barred from challenging those convictions on appeal based on the denial of his motion to suppress the evidence obtained during that search.3 He contends, however, that he is not so barred because the District Court did not comply with Rule 11 of the Federal Rules of Criminal Procedure. He contends that the District Court did not do so because it failed to ensure that, in entering those guilty pleas, he understood that he was waiving his ability to appeal the denial of his motion to suppress. Fulcar concedes that he did not advance this argument below. As a result, our review of the asserted error is only for plain error. See United States v. Williams, 48 F.4th 1, 5 (1st 3 Fulcar does not specify which of the three counts to which he pleaded guilty he is arguing would be invalidated by a finding that the District Court erred in failing to inform him that he could not appeal the motion to suppress if he entered unconditional pleas. However, Fulcar bases his challenge to the voluntariness of his pleas on not being informed that he would be unable to appeal the denial of his motion to suppress the evidence seized during a search of his home. Given that the evidence seized from his home -- drugs, a firearm, and ammunition -- formed the basis of count one, which charged him with being a prohibited person in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), and count three, which charged him with possession with intent to distribute certain drugs in violation of 21 U.S.C. § 841(a)(1) based on the drugs found in his home, we read this first challenge to only be aimed at his guilty pleas to those counts. - 8 - Cir. 2022) ("We review an unpreserved Rule 11 claim for plain error." (citing United States v. Vonn, 535 U.S. 55, 58-59 (2002))). "To establish plain error," Fulcar must show "that (1) an error occurred; (2) the error was clear or obvious; (3) the error affected [the appellant's] substantial rights; and (4) the error seriously affected the fairness, integrity or public reputation of the judicial proceedings." United States v. Kitts, 27 F.4th 777, 784 (1st Cir. 2022) (citation modified). Fulcar has not shown plain error here. Generally, Federal Rule of Criminal Procedure 11 "defines the contours of the plea hearing" and ensures that a defendant enters his plea knowingly and voluntarily by requiring the district court to inform the defendant of the rights that he is waiving by pleading guilty. Williams, 48 F.4th at 6; see also Fed. R. Crim. P. 11(b). Fulcar acknowledges that Rule 11 "does not expressly state that the defendant has to be advised of the right to appeal a motion to suppress only through a conditional plea." However, he insists that, even if Rule 11 does not require such a warning, "due process requires that the plea amount to a voluntary and intentional relinquishment of a known right." (Quoting United States v. Cotal-Crespo, 47 F.3d 1, 4 (1st Cir. 1995) (citation modified).) Fulcar points to no precedent suggesting that, as far as the knowing and voluntary entry of a guilty plea is concerned, due - 9 - process imposes requirements beyond those provided by Rule 11. See United States v. Romero, 906 F.3d 196, 207 (1st Cir. 2018) (finding defendant could not show supposed error was clear or obvious because he had "no binding precedent on his side"). Moreover, we have previously linked Rule 11 to the requirements of due process. See Cotal-Crespo, 47 F.3d at 4. And, in Williams, we described the "core concerns" of Rule 11 as there having been "a lack of coercion" in the defendant's decision to plead guilty, "the defendant's understanding of the charges against him, and the defendant's 'knowledge of the consequences of the guilty plea.'" 48 F.4th at 6 (quoting Cotal-Crespo, 47 F.3d at 4). We also declined in that case "to add a new core concern to that list -- namely, that the defendant must understand that by proceeding he would be waiving the right to challenge the seizure of evidence." Id. (citation modified). It follows that Fulcar has not shown that the District Court plainly erred by failing to inform him that his unconditional guilty pleas barred him from challenging the denial of his motion - 10 - to suppress.4 And so, his challenge to his convictions based on that failure necessarily falls short.5 III. Fulcar separately challenges his § 922(g)(1) conviction on the grounds that the District Court erred by denying his motion to dismiss the count of the indictment that charged him with violating that statute. He does so based on New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). He argues 4 In his opening brief, Fulcar noted that "[s]ubstantial briefing and a lengthy motion to suppress argument was held." During oral argument, Fulcar emphasized the "unique nature" of this case and seemed to argue it stemmed from the "very extensive" motion to suppress litigation that preceded the guilty pleas. To the extent Fulcar meant to argue that the lengthy motion to suppress litigation counsels in favor of finding the District Court plainly erred by not specifically advising him he could not appeal the outcome of the motion, he failed to point to any case law -- either in his brief or during oral argument -- to support that contention. That plain-error argument therefore also fails. See, e.g., United States v. Correa-Osorio, 784 F.3d 11, 21 n.12 (1st Cir. 2015) (explaining that prevailing on plain error requires clear and binding precedent). 5 Fulcar separately advances a claim of ineffective assistance of counsel based on his counsel's asserted failure to inform him that the entry of his guilty plea would preclude him from appealing the denial of his suppression motion. However, we will address on direct appeal a claim of ineffective assistance only in the rarest of cases. See, e.g., United States v. García-Pastrana, 584 F.3d 351, 388 (1st Cir. 2009) ("[T]he proper vehicle for relief for ineffective assistance of counsel is a motion under 28 U.S.C. § 2255, not direct appeal."). In the alternative, Fulcar asks us to "remand to the district court for a factual hearing on the matter." We do not think this case calls for such a discretionary remand, either. See United States v. Colon-Torres, 382 F.3d 76, 85 (1st Cir. 2004) (limiting remand to situations where the record "contain[s] sufficient indicia of ineffectiveness in the plea agreements, the PSR, and the transcripts of the change of plea and sentencing hearings"). - 11 - that, under that precedent, § 922(g)(1) violates the Second Amendment both on its face and as applied to him, because "[p]ossessing a firearm within the home is a core right protected by the Second Amendment," and "[f]or these reasons and the arguments set forth in detail in" his motion to dismiss filed below, the § 922(g)(1) count should have been dismissed. (Citing District of Columbia v. Heller, 554 U.S. 570, 626-30 (2008).) As we have explained before, however, incorporating by reference as a practice "has been 'consistently and roundly condemned,' and any incorporated argument is ordinarily deemed forfeited." United States v. Orrego-Martinez, 575 F.3d 1, 8 (1st Cir. 2009) (per curiam) (citation omitted) (quoting Gilday v. Callahan, 59 F.3d 257, 273 n.23 (1st Cir. 1995)); see also Sleeper Farms v. Agway, Inc., 506 F.3d 98, 104 (1st Cir. 2007) ("They purport to incorporate by reference their motion before the district court. That is not acceptable: this court will only consider arguments made before this court; everything else is deemed forfeited." (citation modified)). And while Fulcar does slightly more than simply incorporate his briefing before the District Court, he fails to develop any argument as to why Bruen or Heller renders § 922(g)(1) unconstitutional. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (noting the "settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are - 12 - deemed waived"). Significantly, Fulcar does not address the District Court's primary reason for denying his motion to dismiss: United States v. Torres-Rosario, the First Circuit precedent that the District Court determined foreclosed his motion and survived the Supreme Court's Bruen decision. See 658 F.3d 110 (1st Cir. 2011); cf. Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 30 (1st Cir. 2015). We therefore deem waived any argument that the District Court's ruling on this issue was in error. IV. Fulcar's challenges to his sentences concern the District Court's application of three sentencing enhancements that the Guidelines set forth. We review the District Court's interpretation and application of the Guidelines de novo and its fact-finding for clear error. See United States v. Carvajal, 85 F.4th 602, 609 (1st Cir. 2023) (quoting United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015)). If the District Court's alleged error in applying the Guidelines did not affect the ultimate sentence imposed, then we may affirm the sentence on that basis alone. See United States v. Marsh, 561 F.3d 81, 86 (1st Cir. 2009). A. We begin with Fulcar's challenge to the District Court's application of the career offender guideline, which in Fulcar's - 13 - case yields an offense level of thirty-two. U.S.S.G. § 4B1.1(b)(3). That Guideline, in relevant part, applies when "the defendant has at least two prior felony convictions of . . . a controlled substance offense." U.S.S.G. § 4B1.1(a)(3). The Guidelines define, in relevant part, a "controlled substance offense" as "an offense under federal or state law" 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." Id. § 4B1.2(b)(1) (emphasis added). As we noted at the outset, the District Court expressly stated that it would have imposed the same sentence even if it had "accepted" Fulcar's arguments "about what the advisory guideline sentencing range should be." Any error in the Guidelines calculation would, then, be harmless. See United States v. Ouellette, 985 F.3d 107, 110 (1st Cir. 2021) ("[W]e have consistently held that when a sentencing court makes clear that it would have entered the same sentence regardless of the Guidelines, any error in the court's Guidelines calculation is harmless."). But the government makes no argument to us that we must reject Fulcar's challenge to the application of the career offender guideline -- or any guideline -- on that basis. Indeed, the government does not even cite the portion of the sentencing hearing - 14 - during which the District Court states that it "would have still reached the same sentence" irrespective of whether it found that the career offender guideline or any other guideline at issue applied to Fulcar. Rather, the government urges us to address the question of whether the career offender guideline applies head-on, and so, the government necessarily contemplates that it might receive an adverse ruling on that question. Often, of course, when the record reveals that an asserted error is harmless, it makes sense to bypass the question of whether such an error occurred. But that is not our invariable practice, and here, because the government neither asks us to affirm the sentence based on the asserted error having been harmless nor even identifies the basis in the record for affirming the sentence because that claimed error was harmless, we think it prudent to resolve the question about whether there was error that the government has asked us to resolve. The issues have been thoroughly briefed and so we have full adversarial testing. It is also a question of pure law. In addition, resolving this issue will provide clarity on a recurring issue of sentencing -- and so one that inevitably bears on plea negotiations -- in which the current state of our case law is less than clear. See United States v. Soto-Sanchez, 138 F.4th 81, 90 (1st Cir. 2025). - 15 -  Thus, although, as we will explain, we ultimately conclude that Fulcar's challenge to the application of the career offender guideline to him fails on harmless error grounds, we first assess his contention that the District Court did err in applying that Guideline enhancement to him. And, as we also will explain, we agree with Fulcar that the District Court did so err. 1. The parties agree that the career offender guideline's enhancement applies only if Fulcar's 2008 Massachusetts law conviction for the offense of possession of cocaine with intent to distribute qualifies as a conviction for a "controlled substance offense" within the meaning of that Guideline. Fulcar contends that the enhancement does not so apply because the substance that he was convicted in 2008 of possessing with intent to distribute -- which Massachusetts law deemed to be "coca leaves" or a derivative thereof, and which the parties refer to as "cocaine" -- is not a "controlled substance" within the meaning of the career offender guideline. As we will explain, we agree with Fulcar. 2. The Massachusetts Controlled Substances Act ("MCSA") identifies various substances as "controlled substances," and it then assigns each of those substances to a "class" that is identified by a letter. See Mass. Gen. Laws ch. 94C, § 31. The - 16 - MCSA classifies "[c]oca leaves" and their derivatives as Class B substances, id. § 31(Class B)(a)(4); as noted above, the parties refer to such substances as "cocaine," and we do the same for ease of reference.6 At the time of Fulcar's 2008 conviction, the MCSA defined that substance -- in relevant part -- to include "ecgonine," which the parties agree includes its derivative: [123I]ioflupane ("ioflupane"). Id. § 31(Class B)(a)(4) (2008). Federal law has its own statute, the Controlled Substances Act ("CSA"), that identifies various substances as "controlled substances."7 21 U.S.C. §§ 801–904. Rather than assigning each such substance to a class identified by a letter, however, the CSA assigns each one to a "schedule" that is identified by a roman numeral. Id. § 802(6). Like the MCSA, the CSA also labels as a controlled substance -- under Schedule II -- "[c]oca leaves" and their derivatives, which the parties refer to simply as "cocaine." Id. § 812 (Schedule II)(a)(4). At the time of Fulcar's 2008 Massachusetts law conviction, Schedule II of the CSA, like the MCSA, defined this group of 6 Mass. Gen. Laws ch. 94C, § 32A sets out the terms of imprisonment for possession with intent to distribute a Class B substance. 7 The CSA defines a "controlled substance" as "a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter." 21 U.S.C. § 802(6). Part B then goes on to list the five schedules and the corresponding drugs. Id. § 812. - 17 - substances to include derivatives of ecgonine, such as ioflupane. 21 C.F.R. § 1308.12(b)(4)(ii) (2008). As a result, in 2008, when Fulcar was convicted under Massachusetts law of the offense of possession with intent to distribute a controlled substance, that conviction clearly was for an offense that involved "cocaine" under both Massachusetts and federal law. In 2015, however, things changed. That year, Schedule II of the CSA was amended to exclude "ioflupane" from the definition of "cocaine." That substance thus was excluded as of that time from being a "controlled substance" under the CSA. 21 C.F.R. § 1308.12(b)(4)(ii) (Sept. 11, 2015); Schedules of Controlled Substances: Removal of [Ioflupane] From Schedule II of the Controlled Substances Act, 80 Fed. Reg. 54715, 54717 (Sept. 11, 2015). And that exclusion persisted through the time of Fulcar's sentencing for his three federal convictions at issue in this appeal, even though the MCSA continued to define "cocaine" to include ioflupane. According to Fulcar, ioflupane's exclusion in 2015 from Schedule II, given that it persisted through the time of his sentencing for his federal convictions, means that his 2008 Massachusetts law conviction is not a conviction for a "controlled substance offense" under the career offender guideline. Fulcar reasons as follows. - 18 -  Fulcar begins by arguing that we must apply what is known as the categorical approach to determine if his assertedly qualifying prior conviction -- his 2008 Massachusetts law conviction -- is for a "controlled substance offense" under the career offender guideline. Under that approach, we must presume that this prior conviction "rested upon nothing more than the least of the acts criminalized by the statute of conviction." Thompson v. United States, 64 F.4th 412, 419 (1st Cir. 2023) (citation modified). And, under that same approach, we may determine what those acts are solely by focusing on "the elements of the [assertedly qualifying predicate] crime -- i.e., the constituent parts of the crime's legal definition (the things the prosecution must prove beyond a reasonable doubt to sustain a conviction) -- and not how a given defendant actually perpetuated [that] crime." United States v. García-Cartagena, 953 F.3d 14, 18 (1st Cir. 2020) (citation modified). Thus, Fulcar reasons that we must presume that his 2008 Massachusetts law conviction was for the offense of possession with intent to distribute ioflupane, regardless of whether, in committing the underlying offense, he actually possessed that substance rather than a different one that the MCSA also deemed to be "cocaine" but that the CSA did not exclude from its definition of "cocaine" at the time of his federal sentencing for his three federal convictions. As a result, Fulcar argues that we must - 19 - presume that he was convicted of possession with intent to distribute a substance that, as of the time of his sentencing for those three federal convictions, was not, per the CSA, "controlled" under federal law. The government does not disagree with Fulcar's arguments concerning the categorical approach. But Fulcar's challenge to the application of the career offender guideline also depends on two additional steps in his argument about what qualifies as a "controlled substance" under that Guideline, each of which the government does dispute. The first of those steps concerns the body of law -- state or federal -- under which a substance must be "controlled" to qualify as a "controlled substance" within the meaning of the career offender guideline. Fulcar contends that the Guideline directs us to conclude that a substance is so "controlled" only if it is "controlled" by federal law -- even when, as in his case, the assertedly qualifying prior conviction is for a state offense. The second of those steps concerns the time for determining whether a substance is controlled. Here, Fulcar contends that the career offender guideline directs us to look at the time that the career offender guideline is applied to the defendant -- and thus, in his case, to the time that he was sentenced for the three federal convictions at issue in this - 20 - appeal. In other words, he contends that the Guideline directs us not to look at any other time, such as the time of conviction for the alleged predicate crime, which in his case would have been 2008, when he was convicted of the assertedly qualifying Massachusetts law offense. The government does not dispute that if Fulcar is right about these last two steps in his argument, then his 2008 Massachusetts law conviction is not a conviction for a "controlled substance offense" under the career offender guideline. The government acknowledges that, at the time of Fulcar's sentencing for his three federal convictions at issue in this appeal, the body of law that defined the substances that were "controlled" under federal law did not define ioflupane to be such a substance. The government contends, however, that, in the case of an assertedly qualifying prior state law conviction, a "controlled substance" under the career offender guideline includes substances that are controlled under the law of the relevant state, whether or not those substances are also controlled under federal law. Thus, the government argues, even if Fulcar is right about the career offender guideline's time-of-federal-sentencing temporal orientation, Fulcar's 2008 Massachusetts law conviction is still a conviction for a "controlled substance offense" under the career offender guideline. And that is so, according to the government, because Massachusetts, per the MCSA, "controlled" ioflupane not - 21 - only when Fulcar's 2008 conviction was entered but also up through the time that Fulcar was sentenced for his federal convictions, which is the time when that Guideline was applied to him. The government also contends that, even if we must look only to the body of law that defines what substances the federal government controls, we still must look to that body of law as it stood at the time of the entry of the assertedly qualifying prior conviction and not at the time of the career offender guideline's application. The government then contends that we must therefore look to 2008, when Fulcar was convicted under Massachusetts law, and not to when he was sentenced for the three federal convictions at issue in this appeal. Thus, the government argues, even on Fulcar's understanding of what the relevant body of law is that determines whether a substance is "controlled," Fulcar's 2008 conviction is still a conviction for a "controlled substance offense" under the career offender guideline. And that is because, as the government points out, even Fulcar agrees that in 2008, ioflupane was "controlled" under federal law. During oral argument, the government urged us to revisit our precedent that bears on the temporal point. See United States v. Abdulaziz, 998 F.3d 519, 523 (1st Cir. 2021) (adopting a time-of-federal-sentencing approach to the definition of "controlled substance offense" under the Guidelines). It contends that the "core" and "sole" reasoning on which that precedent relied - 22 - has been rejected by an intervening Supreme Court case. See Brown v. United States, 602 U.S. 101, 123 (2024) (adopting a time-of-prior-offense approach to the definition of "serious drug offense" under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(A)(ii)). We agree with the government that there is a need to clarify our law in this area. We therefore begin with the temporal-orientation issue. As we will explain, however, we conclude that Fulcar has the better of that argument. We then address the government's contention about the body of law that defines what substances are controlled -- as here, too, our law would benefit from clarification. And here, too, we conclude that Fulcar has the better of the argument. Thus, we conclude that Fulcar is right that the District Court erred by subjecting him to the career offender guideline's enhancement. Nonetheless, as we will explain, we still must reject his challenge to his sentences insofar as that challenge is based on that error because we conclude that the error was harmless. 3. Starting with the temporal-orientation issue, the government acknowledges that a panel of this court held in Abdulaziz that in applying an enhancement applicable when an offense was committed "subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance - 23 - offense," "we must look to the version of those drug schedules that were 'in effect'" at the time of sentencing for the federal offense.8 998 F.3d 519, 521, 523 (1st Cir. 2021) (quoting United States v. Rodriguez, 630 F.3d 39, 42 (1st Cir. 2010)). The government contends, however, that the Supreme Court's subsequent decision in Brown, which addressed a similar timing issue under the Armed Career Criminal Act ("ACCA"), undermines Abdulaziz. As a result, the government argues, Brown strips Abdulaziz of its controlling force under the law of the circuit doctrine. See United States v. Guzmán, 419 F.3d 27, 31 (1st Cir. 2005) (describing instances in which "authority that postdates the original decision, although not directly controlling, may nevertheless offer a compelling reason for believing that the former panel, in light of new developments, would change its collecti