United States v. Darius Pennington, 23-13277

Darius Pennington was sentenced to 210 months’ imprisonment after being convicted by a jury for being a felon in possession of a firearm and possession with intent to distribute heroin and marijuana.
The presentence investigation report classified Pennington as a “career offender” under federal Sentencing Guidelines due to two prior 2013 Georgia drug convictions for possession with intent to distribute cocaine and marijuana.
Pennington objected to the career offender enhancement, arguing his Georgia convictions did not qualify as “controlled substance offenses” because the Georgia statute was overbroad compared to the federal Controlled Substances Act (CSA).
The district court rejected Pennington’s argument, applying the enhancement by referencing state law at the time of conviction, not federal law or current state law.
The district court sentenced Pennington as a career offender, and Pennington appealed the decision to the Eleventh Circuit, contesting the application of the enhancement.

Issue	Pennington's Argument	Government's Argument	Held
Whether prior state convictions qualify as “controlled substance offenses” under the Sentencing Guidelines if state drug schedules are broader than federal law	Georgia's drug statute is broader than the federal CSA, so his prior convictions should not trigger the career offender enhancement	State law at time of conviction controls which substances qualify; no need to compare to federal schedules	State law at time of prior conviction determines qualification; enhancement affirmed
Whether current state law affects the qualification of prior convictions as predicate offenses	Georgia no longer considers marijuana a controlled substance, so the prior conviction should not count	Law at time of prior conviction is what matters, not subsequent changes	Law at time of conviction governs; current law irrelevant
Whether the pending rehearing in Dubois affects its binding authority	Dubois decision is not binding due to pending en banc rehearing	Published opinion is binding precedent regardless of pending rehearing	Dubois is binding and forecloses Pennington’s argument
Proper interpretation of Sentencing Guidelines definition of “controlled substance offense”	Definition should require controlled substances to match federal CSA	Guidelines allow reference to state law for state convictions	Guidelines reference state law for state convictions

United States v. Dubois, 94 F.4th 1284 (11th Cir. 2024) (held that for the career offender enhancement, state law at the time of conviction defines qualifying “controlled substance offenses”)
United States v. Lange, 862 F.3d 1290 (11th Cir. 2017) (establishing standard of de novo review for whether a prior conviction qualifies under the Guidelines)
Martin v. Singletary, 965 F.2d 944 (11th Cir. 1992) (published circuit opinions are binding regardless of pending rehearing petitions)