UNITED STATES OF AMERICA v. JAMES CLARK, III
No. 21-6038
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: June 15, 2022; Decided and Filed: August 18, 2022
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 22a0193p.06. Appeal from the United States District Court for the Western District of Tennessee at Jackson. No. 1:19-cr-10027-1—S. Thomas Anderson, Chief District Judge.
Before: GIBBONS, COOK, and THAPAR, Circuit Judges.
COUNSEL
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.
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
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
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.”
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.
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 (1990). Under this approach we
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].”
[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.
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
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.
The Supreme Court‘s decision in McNeill v. United States, 563 U.S. 816 (2011), and our opinion in Mallett v. United States, 334 F.3d 491 (6th Cir. 2003), confirm the text‘s support for a time-of-conviction rule.
We begin with McNeill. Although no binding caselaw exists that directly addresses the issue presented here, the Supreme Court answered a closely related question in McNeill. There, defendant McNeill pled guilty to unlawful possession of a firearm under
The district court determined that McNeill qualified for the enhancement based on at least three prior convictions: two “violent felonies” (assault with a deadly weapon and robbery) and a “serious drug offense.”
Although McNeill interpreted the ACCA and here the panel interprets the Guidelines, the cases are remarkably similar. Both involve recidivism enhancements, which by nature concern a defendant‘s past conduct. In both cases, the defendant relied on an intervening change in state law (and here federal too) that ostensibly shifts the meaning of a provision that enhances their sentence. Both cases contemplate whether to define that term with reference to current law, or law from the time of the prior conviction. McNeill definitively held that the time of conviction is the proper reference under the ACCA.
McNeill favorably cited our decision in Mallett v. United States, 334 F.3d 491 (6th Cir. 2003). There, we addressed whether a defendant should have his sentence enhanced under the Guidelines based on a prior conviction for a “serious drug offense.” Id. at 498. To be a serious drug offense, the prior violation had to be punishable by a maximum term of imprisonment of ten years or more. Id. at 499. Ohio had amended its drug laws in the time
The McNeill/Mallett approach finds support in other contexts as well. In the immigration realm, courts have expressly adopted a time-of-conviction approach. For example, in Mellouli v. Lynch, 575 U.S. 798 (2015), the Supreme Court examined an immigration statute authorizing removal of a noncitizen “convicted of a violation of . . . any law or regulation . . . relating to a controlled substance.” Id. at 811 (quoting
Beyond the immigration context, courts apply a time-of-conviction approach to several other provisions that lengthen a defendant‘s sentence or increase the Guidelines range. See, e.g., United States v. Doran, 978 F.3d 1337, 1339–40 (8th Cir. 2020) (enhancement under
B.
Clark makes several counterarguments. None is persuasive.
Clark first contends that “controlled substance” should be interpreted similarly to its neighboring provision that defines “crime of violence.” See
Clark also emphasizes what he sees as a determinative textual argument: courts are obligated to “use the Guidelines Manual in effect on the date that the defendant is sentenced.”
Accepting that a sentencing court applies the currently effective Guidelines, however, leaves unanswered the definitional question: what the term “controlled substance” means at sentencing. Under McNeill‘s logic, courts must define the term as it exists in the Guidelines at the time of federal sentencing by looking backward to what was considered a “controlled substance” at the time the defendant received the prior conviction that triggers the enhancement. This approach tracks the purpose of recidivism enhancements. Recidivism enhancements are intended to deter future crime by punishing those future crimes more harshly if the defendant has committed certain prior felonies. See United States v. Rodriguez, 553 U.S. 377, 385 (2008) (“[A] second or subsequent offense is often regarded as more serious because it portends greater future danger
Clark raises another point about McNeill, but this one, too, lacks merit. He maintains that the McNeill approach should not govern because the term “serious drug offense” in the ACCA statute refers only to prior offenses while “controlled substance offense” in the Guidelines refers both to prior offenses and instant federal offenses. So, he argues, to adopt a rule that whether something is a “controlled substance” depends on the drug schedules at the time of conviction would create an incongruency in the Guidelines in the instances where the term refers to current offenses. The Guidelines, however, plainly distinguish between prior and current offenses. When the Guidelines refer to prior offenses, it is logical to use the prior drug schedules. When the Guidelines refer to instant offenses, the current drug schedules are an appropriate reference.
Clark also attempts to distinguish Mallett by ignoring its second justification: that the Guidelines language in
C.
Clark contends that we should follow the other circuits that have adopted a time-of-sentencing rule. See United States v. Bautista, 989 F.3d 698, 704 (9th Cir. 2021); United States v. Abdulaziz, 998 F.3d 519, 531 (1st Cir. 2021); United States v. Hope, 28 F.4th 487, 505–06 (4th Cir. 2022); but see United States v. Jackson, No. 20-3684, 2022 WL 303231, at *1–2 (8th Cir. Feb. 2, 2022) (per curiam). Those courts, however, did not adequately engage with McNeill‘s reasoning.
The Ninth Circuit first decided this issue in United States v. Bautista, 989 F.3d 698 (9th Cir. 2021). There, the district court enhanced defendant Bautista‘s sentence for possession of ammunition under the Guidelines based on a prior marijuana offense. Id. at 701. The court held that it was plain error for the district court to
The First Circuit took the same approach in United States v. Abdulaziz, 998 F.3d 519 (1st Cir. 2021). The district court enhanced defendant Abdulaziz‘s sentence for a firearm offense under the Guidelines based on prior convictions for “crime[s] of violence” and a “controlled substance offense.” Id. at 521 (quoting
The Fourth Circuit agreed in United States v. Hope, 28 F.4th 487 (4th Cir. 2022). There, the defendant pled guilty to possessing a firearm and ammunition as a felon, and his sentence was enhanced under the ACCA based on prior convictions for possession of marijuana. Id. at 492. Hemp had been delisted between his prior convictions and current sentencing. Id. at 498–99. The court held that the categorical approach requires looking to the definition of a controlled substance at the time of the instant sentencing, so the current drug schedules are the proper reference. Id. at 504–05. Like the others, the Hope court limited McNeill‘s holding to the context of a later change in state law for purposes of ascertaining the elements of the prior state law of conviction in the first step of the categorical approach.
Most recently, the Eleventh Circuit forged a slightly different path in United States v. Jackson, 36 F.4th 1294 (11th Cir. 2022). There, the court enhanced defendant Jackson‘s sentence under the ACCA for possession of a firearm. Id. at 1297–99. Jackson challenged the enhancement, arguing that his prior cocaine convictions were not “serious drug offense” predicates because the federal government delisted ioflupane (a substance derived from cocaine) from the Controlled Substances Act
These courts insufficiently grapple with the Supreme Court‘s reasoning in McNeill. For example, the Ninth Circuit in Bautista reasoned that the “present-tense text” of
This court, too, considered the issue in an unpublished opinion, and—in dicta—declined to extend McNeill and Mallett. See Williams, 850 F. App‘x at 401. In Williams, the district court enhanced defendant Williams‘s sentence for a firearm offense based on a prior marijuana conviction, despite hemp having been delisted from the drug schedules federally and in Tennessee prior to sentencing. Id. at 394–95. A majority concluded that the sentencing court should look to the nature of the prior conviction under the law at the time of sentencing to define a controlled substance. Id. at 401. Yet, because the defendant failed to properly preserve his objection, the plain error standard decided the issue. Id. at 402. Because this was an unsettled issue in the circuit, the district court‘s error was not plain. Id.; see also, e.g., United States v. Perry, 2021 WL 3662443, at *3 (6th Cir. Aug. 18, 2021) (holding that there was no plain error on similar facts); United States v. Bradley, 2022 U.S. App. LEXIS 1096, at *14 (6th Cir. Jan. 13, 2022) (same).
The Williams majority reasoned that McNeill does not compel a contrary result because it only addressed the first prong of the categorical approach. Williams, 850 F. App‘x at 399. But, once again, the majority did not fully engage the Supreme Court‘s reasoning in McNeill. The McNeill Court ascertained the current definition of a statutory term: “serious drug offense.” It determined that the proper way to define that term is by referencing state law at the time of conviction. The Court could not have applied the enhancement without assessing all steps of the categorical approach, necessarily deciding that McNeill‘s prior convictions did in fact constitute “serious drug offenses” under the meaning of the term in the current statute. Attempting to distinguish persuasive Supreme Court precedent, the Williams court draws too
D.
Both parties claim that the other‘s stance would create disparities in sentencing. Yet, the alleged disparities would exist in either scenario. If we adopt Clark‘s rule, defendants who were convicted on the same day of the same conduct but sentenced one day before and one day after an amendment to the drug schedules, respectively, would face different penalties. Likewise, adopting the government‘s rule, defendants who were convicted for the same conduct one day before and one day after an amendment to the drug schedules but who are later sentenced on the same day for the same federal offense would also face different penalties. The two rules do not exacerbate or ameliorate sentencing disparities, they merely shift the point at which the disparity originates.
E.
Finally, Clark argues that the Guidelines’ text is ambiguous so the rule of lenity should tip the scale in his favor. See United States v. Canelas-Amador, 837 F.3d 668, 674–75 (6th Cir. 2016). But the rule of lenity plays “a very limited role,” applying “only when after seizing everything from which aid can be derived, the statute is still grievously ambiguous.” Wooden v. United States, 142 S. Ct. 1063, 1075 (2022) (Kavanaugh, J., concurring) (citation omitted); see also Ocasio v. United States, 578 U.S. 282, 295 n.8 (2016) (explaining that the rule of lenity applies only when there is a “grievous ambiguity or uncertainty” such that the court “can make no more than a guess as to what” was intended) (citation omitted). Because a reasoned interpretation of the text can be reached by “exhaust[ing] all the tools of statutory interpretation,” we need not rely on the rule of lenity here. Wooden, 142 S. Ct. at 1075 (Kavanaugh, J., concurring). Moreover, the interpretation we apply here also negates any concern about “fair notice.” See Jackson, 36 F.4th at 1300. Clark was on notice that his previous convictions were controlled substance offenses at the time he was convicted of them. And under the backward-looking approach, he was on notice that those offenses could result in a greater sentence under the current Guidelines.
III.
Overall, Clark fails to raise any arguments that overcome a plain reading of the Guidelines’ text, as confirmed by the reasoning in McNeill and Mallett. Therefore, the district court properly enhanced Clark‘s sentence under
CONCURRENCE
THAPAR, Circuit Judge, concurring. The majority properly employs the categorical approach, as it must. This case demonstrates, yet again, that the whole enterprise is a sham.
Start with what‘s undisputed. All agree on the facts underlying Clark‘s two 2014 convictions. In the first instance, Clark was found with 532.7 grams of marijuana; in the second, 123.8 grams of marijuana. Clark doesn‘t argue—and nothing anywhere in the record suggests—that a single gram was anything other than marijuana.
It‘s time to stop playing pretend. See Mathis v. United States, 579 U.S. 500, 536–44 (2016) (Alito, J., dissenting). I hope, before long, Congress and the Sentencing Commission will eliminate the categorical approach and bring us all back to reality. See also United States v. Burris, 912 F.3d 386, 407–10 (6th Cir. 2019) (en banc) (Thapar, J., concurring); Lowe v. United States, 920 F.3d 414, 420 (6th Cir. 2019) (Thapar, J., concurring).