United States v. Williams

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TONY DEWAYNE WILLIAMS, Defendant-Appellant.

No. 19-6410

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

March 25, 2021

NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0156n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

OPINION

BEFORE: MOORE, COOK, and STRANCH, Circuit Judges.

JANE B. STRANCH, Circuit Judge. Tony DeWayne Williams was convicted of a Tennessee marijuana offense in 2015 and, in 2019, the federal offense of being a felon in possession of a firearm. At sentencing, the district court increased his base offense level because of the 2015 conviction, raising the low end of his Guidelines range by three years. Williams challenges the procedural reasonableness of that decision, arguing that the district court erred by counting the 2015 conviction as a "controlled substance offense" for purposes of USSG § 4B1.2. See Gall v. United States, 552 U.S. 38, 51 (2007) (holding that miscalculation of Guidelines range is "significant procedural error" constituting an abuse of discretion); Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016). Though we agree with Williams that his Guidelines range was miscalculated, because he has not satisfied the plain error review standard we must apply, we AFFIRM his sentence.

I. BACKGROUND

On July 17, 2015, Williams was convicted of possession of marijuana for resale under Tenn. Code Ann. § 39-17-417(a)(4) (2014), a felony. At that time, Tennessee's definition of "marijuana" included unlicensed hemp. Tenn. Code Ann. § 39-17-402(16) (2015); see also Rieves v. Town of Smyrna, 959 F.3d 678, 686 n.2 (6th Cir. 2020) (discussing the differences between "illegal marijuana" and hemp).

On December 20, 2018, the Agricultural Improvement Act of 2018 was enacted, removing hemp from Schedule I's list of controlled substances. Pub. L. No. 115-334, § 12619, 132 Stat. 4490, 5018 (codified at 21 U.S.C. § 812 (2018)). Consequently, the term "marihuana" in federal law explicitly excluded hemp as of December 21, 2018. 21 U.S.C. § 802(16) (2018). A few months later, Tennessee followed suit, removing hemp from its equivalent Schedule IV as of April 3, 2019, to comport with the federal definition of marijuana. 2019 Tenn. Pub. Acts ch. 87 (codified at Tenn. Code Ann. §§ 39-17-402(16)(c), -403(f)(1), -415, 43-27-101 (2019)); compare 7 U.S.C. § 1639o(1) (2018), with Tenn. Code Ann. § 43-27-101(3) (2019).

Soon after, on July 11, 2019, Williams pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), stipulating that he knew he was a felon when he possessed the gun at issue. See Rehaif v. United States, 139 S. Ct. 2191, 2195-96 (2019). The Probation Office's presentence report (PSR) calculated Williams's Guidelines range by starting with a base offense level of 14, see USSG § 2K2.1(a)(6), and increasing it by six levels on the assumption that Williams had committed the offense "subsequent to sustaining one felony conviction of . . . a controlled substance offense," id. § 2K2.1(a)(4)(a); see also id. § 4B1.2(b) (defining "controlled substance offense"). Williams, who had only one such prior conviction, was not subject to the Armed Career Criminal Act ("ACCA"). See 18 U.S.C. § 924(e)(1) (enhancing sentences for violations of § 922(g) when the person has "three previous convictions . . . for a violent felony or a serious drug offense or both").

The PSR, however, acknowledged that its application of § 2K2.1(a)(4)(a) was debatable in light of our then-recent decision in United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam). The PSR also added two levels because the firearm had been reported as stolen from a different state, added four levels because Williams had possessed the gun "in connection with another felony offense" (possession of methamphetamine during the traffic stop giving rise to his case), and then subtracted three levels for acceptance of responsibility, resulting in an offense level of 23 and a Guidelines range of 92 to 115 months. Williams objected to the "controlled substance offense" addition, arguing that the statute of conviction was overbroad for purposes of § 2K2.1(a)(4)(A) and that there was insufficient proof for the stolen firearm enhancement.

The district court sentenced Williams on November 22, 2019. After the Government conceded that there was insufficient proof to justify the stolen firearm enhancement, the district court sustained Williams's related objection. But it overruled Williams's objection to the increase in his base offense level due to his 2015 Tennessee marijuana conviction. The district court cited its decision a week earlier to count a similar Tennessee conviction as a controlled substance offense for Guidelines calculation purposes. See United States v. Goins, 828 F. App'x 324 (6th Cir. 2020) (per curiam) (affirming the district court). The court adopted the PSR's calculation, resulting in an offense level of 21 and a range of 77 to 96 months. Had Williams's 2015 conviction not counted as a controlled substance offense, his offense level would have been 15 and his range 41 to 51 months. The district court ultimately sentenced Williams to 77 months' incarceration, the low end of his Guidelines range, with three years' supervised release to follow. Williams timely appealed.

II. ANALYSIS

A. Standard of Review

The parties agree that "[w]hether a prior conviction counts as a predicate offense under the Guidelines is a question of law subject to de novo review" and that this category includes the district court's determination that Williams's 2015 conviction is a "controlled substance offense" for purposes of USSG § 4B1.2(b). Havis, 927 F.3d at 384. But the Government maintains that we should review for plain error Williams's argument that his 2015 conviction did not involve a "controlled substance," contending that Williams did not sufficiently argue the point before the district court. See United States v. Bostic, 371 F.3d 865, 871-73 (6th Cir. 2004) (holding that plain error review applies when "a party does not clearly articulate . . . the grounds upon which the objection is based" in the district court); Fed. R. Crim. P. 51(b).

A review of the record shows that though Williams objected generally to the district court's addition of six levels to his base offense level under USSG § 2K2.1(a)(4)(A), his objection focused on whether the fact that his Tennessee statute of conviction included attempt meant that Havis barred its use to enhance his § 922(g) sentence. On appeal, he raises that argument and the issue of whether the "marijuana" offense of which he was convicted was overbroad. We conclude that Williams did not "object with that reasonable degree of specificity which would have adequately apprised the trial court of the true basis for his objection," Bostic, 371 F.3d at 871 (quoting United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir. 1980)), so we review for plain error.

That inquiry asks if there was an error; if it was "clear or obvious, rather than subject to reasonable dispute"; and if it "affected the appellant's substantial rights," generally by "affect[ing] the outcome of the district court proceedings." Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)); see also Rosales-Mireles v. United States, 138 S. Ct. 1897. 1904-05 (2018). The second prong is of particular importance: "a court of appeals cannot correct an error . . . unless the error is clear under current law." Olano, 507 U.S. at 734. "[I]t is well established that courts 'should' correct a forfeited plain error that affects substantial rights 'if the error "seriously affects the fairness, integrity or public reputation of judicial proceedings."'" Rosales-Mireles, 138 S. Ct. at 1906 (quoting Olano, 507 U.S. at 736).

B. The Statute's Inclusion of Attempt

Williams first argues that because the Tennessee statute under which he was convicted in 2015 encompasses attempt, it is too broad to qualify as a "controlled substance offense" for purposes of USSG § 2K1.2(a)(4)(A). He draws on Havis, in which we applied the categorical approach to hold that a similar Tennessee statute was too broad because the least culpable conduct it criminalized was attempt—conduct falling outside the Guidelines' ambit. 927 F.3d at 385-87. But we subsequently rejected the same argument (shortly after Williams filed his opening brief). See United States v. Garth, 965 F.3d 493, 498 (6th Cir. 2020). "[A]n appellate court must apply the law in effect at the time it renders its decision." United States v. Woodruff, 735 F.3d 445, 451 (6th Cir. 2013) (alteration in original) (quoting Henderson v. United States, 568 U.S. 266, 271 (2013)). Williams concedes in his reply brief that Garth controls, as it did in Goins, 828 F. App'x at 325. The district court did not err by overruling this aspect of Williams's objection.

C. Williams's 2015 Conviction under USSG § 2K2.1(a)(4)(A)

Next, Williams contends that his 2015 conviction cannot properly be considered a "controlled substance offense" for purposes of USSG § 2K2.1(a)(4)(A) due to changes to the state and federal definitions of "marijuana" between 2015 and the date he was sentenced in this case. Section 2K2.1(a)(4)(A) specifies a base offense level of 20 for a violation of § 922(g) when "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense." It incorporates § 4B1.2(b)'s definition of "controlled substance offense" as "an offense under federal or state law, punishable by imprisonment for a term exceeding one year, 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,...