United States v. Clark

46 F.4th 404

UNITED STATES of America, Plaintiff-Appellee,

v.James CLARK, III, Defendant-Appellant.

No. 21-6038

United States Court of Appeals, Sixth Circuit.

Argued: June 15, 2022

Decided and Filed: August 18, 2022

ARGUED: M. Dianne Smothers, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant. Kevin G. Ritz, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee. ON BRIEF: M. Dianne Smothers, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant. Kevin G. Ritz, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee.

Before: GIBBONS, COOK, and THAPAR, Circuit Judges.

COOK, J., delivered the opinion of the court in which GIBBONS and THAPAR, JJ., joined. THAPAR, J. (pg. 16), delivered a separate concurring opinion.

COOK, Circuit Judge.

Defendant James Clark, III pled guilty to a drug crime in federal court. He received an enhanced sentence because he was designated a career offender under the Sentencing Guidelines based on prior marijuana convictions. Section 4B1.1 of the Guidelines states that a defendant is a career offender if, among other criteria, he has committed at least two prior felonies for a crime of violence or a "controlled substance offense." In the time between Clark's previous drug crimes and the current one, Tennessee and the federal government amended their respective drug schedules to narrow the definition of marijuana by excluding hemp. Based on this narrowed definition, Clark contests his career offender designation. He argues that his prior marijuana offenses are not categorically controlled substance offenses because hemp no longer qualifies as marijuana, and therefore, because his prior marijuana offenses could have been for hemp, those prior convictions cannot count as "controlled substance offenses" under § 4B1.1. Thus, this appeal asks us to decide whether the Guidelines’ use of the term "controlled substance" in the career offender enhancement should be defined with reference to the drug schedules in place at the time of the prior convictions at issue, or the schedules in effect at the time of sentencing on the current federal offense. We hold that the proper reference is the law in place at the time of the prior convictions.

I.

In 2019, law enforcement officers arrested Clark for obtaining and distributing controlled substances, including cocaine and heroin, and for selling heroin to undercover agents on three occasions. A grand jury indicted Clark for (1) conspiracy to distribute and possess with intent to distribute a mixture and substance containing a detectable amount of heroin, fentanyl, and cocaine in violation of 21 U.S.C. §§ 841(a) and 846, and (2) possession with intent to distribute those mixtures in violation of 21 U.S.C. § 841(a).

This was not Clark's first encounter with the law. He committed various felonies in the past, and those included two Tennessee convictions for possessing marijuana with the intent to sell or deliver. Those previous convictions had the potential to extend Clark's sentence for his most recent drug offense under the Sentencing Guidelines’ career offender enhancement. The Guidelines provide that defendants qualify as career offenders if (1) they are at least eighteen years old when they committed the instant offense; (2) the instant offense is a felony crime of violence or felony controlled substance offense; and—most important for today's purposes—(3) they have "at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a).

Clark pled guilty to the possession count of his instant offense, reserving the right to appeal the court's decision on whether his prior Tennessee marijuana convictions are controlled substance offenses qualifying him as a career offender under the Guidelines. The government agreed not to seek an aggravating role enhancement, and the parties agreed that Clark should be held accountable for a drug weight of 333 kilograms, resulting in a base offense level of 24. The Presentence Report (PSR) calculated Clark's total offense level at 29, taking into account his career offender status, among other factors. Clark's criminal history score placed him in Category V, but his career offender status raised him to Category VI. The Guidelines range was 151–188 months.

Clark objected to his career offender designation, both in a written response to the PSR and at the sentencing hearing. Critical to his objection, in December 2018, prior to Clark's arrest in the instant case, Congress passed the Agriculture Improvement Act (commonly known as the Farm Bill), which narrowed the federal definition of marijuana to exclude hemp. 21 U.S.C. § 802(16). Hemp is "the plant Cannabis sativa L. and any part of that plant ... with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis." 7 U.S.C. § 1639o (1). Tennessee narrowed its definition in a similar fashion a few months later. Tenn. Code. Ann. §§ 39-17-402(16)(C), 43-27-101(3). Clark argued that he did not qualify as a career offender because both the state and federal governments had revised their drug schedules to exclude hemp from the definition of marijuana in the time since his prior convictions, so those convictions are not categorically controlled substance offenses.

The district court overruled Clark's objections, concluding that his prior marijuana convictions qualified him as a career offender. The court sentenced Clark to 151 months of imprisonment followed by three years of supervised release. Clark appeals.

II.

The sole issue on appeal is whether a prior Tennessee marijuana conviction qualifies as a predicate "controlled substance offense" for the Guidelines’ career offender enhancement when hemp has been delisted from both the state and federal drug schedules prior to sentencing.

We review de novo whether a prior conviction qualifies as a predicate offense for a Guidelines enhancement. United States v. Havis , 927 F.3d 382, 384 (6th Cir. 2019) (en banc) (per curiam). To do so, we employ a three-step categorical approach. United States v. Garth , 965 F.3d 493, 495 (6th Cir. 2020) ; Taylor v. United States , 495 U.S. 575, 588–89, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under this approach we look only to the elements of the criminalized conduct, not the defendant's actual conduct. Havis , 927 F.3d at 384–85. First, we identify the conduct that was criminalized under the state law of conviction; then, we evaluate that relevant conduct as defined in the Guidelines; and finally, we "overlay the two." Garth , 965 F.3d at 495. "[I]f the outer edges of the state law—often the ‘least culpable conduct’ that the law proscribes—extend past the guidelines’ definition, then the conviction doesn't count" as a predicate offense. Id. "If, however, the boundaries of the state law and the guidelines’ definition are coterminous, or the guidelines’ definition sweeps more broadly, then the conviction counts." Id. We use the version of the Guidelines "in effect on the date that the defendant is sentenced." U.S.S.G. § 1B1.11(a).

Employing the categorical approach's first step—identifying the conduct criminalized by the state statute of conviction—Clark benefits from our presuming that his 2014 marijuana convictions were for the "least culpable conduct," which the parties agree in his case would be possession of hemp.

Under step two, we look to the relevant conduct defined in the Guidelines. For the career offender enhancement to apply, a defendant must have at least two prior felony convictions for "controlled substance offense[s]." Id. § 4B1.1(a). The Guidelines define a "controlled substance offense" as:

[A]n offense under federal or state law ... that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance ... or the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense.

Id. § 4B1.2(b). With the Guidelines leaving "controlled substance" otherwise undefined, the parties agree that, although state law criminalized hemp offenses at the time of Clark's prior convictions, both the state and federal drug schedules delisted hemp before the court sentenced Clark for his latest drug offenses in 2021.

We turn then to the dispute here: whether courts assess the meaning accorded the term "controlled substance" by consulting the drug schedules in place at the time of the prior conviction or the drug schedules in place at the time of the instant federal sentencing—a time-of-conviction rule, or a time-of-sentencing rule. The district court here looked to the time of conviction to enhance Clark's sentence under § 4B1.1(a) because hemp was a controlled substance under both state and federal law at the time of his state marijuana convictions in 2014. Thus, the court reasoned that the "state law and the guidelines’ definition are coterminous." See Garth , 965 F.3d at 495. If courts instead must look to the time of sentencing, hemp's delisting from the state and federal drug schedules prior to sentencing in this case means that his prior 2014 convictions are not predicate offenses under § 4B1.1(a). We adopt a time-of-conviction rule.

A.

The time-of-conviction approach flows from the Guidelines’ text. Section 4B1.1 states that a career offender is a person who has "at least two prior felony convictions" for a crime of violence or controlled substance offense. U.S.S.G. § 4B1.1(a) (emphasis added). Section 4B1.2(c), which immediately follows the definition of "controlled substance offense," further defines "two prior felony convictions" to require that the defendant's commission of the instant offense be "subsequent to sustaining at least two felony convictions" for a crime of violence or controlled substance offense.

Id. § 4B1.2(c) (emphasis added). The words "prior" and "subsequent to" direct the court's attention to events that occurred in the past. Thus, the Guidelines...