United States v. James Clark, III ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0193p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA,
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Plaintiff-Appellee, │
> No. 21-6038
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v. │
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JAMES CLARK, III, │
Defendant-Appellant. │
┘
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.
Argued: June 15, 2022
Decided and Filed: August 18, 2022
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.
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OPINION
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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
No. 21-6038 United States v. Clark Page 2
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—
No. 21-6038 United States v. Clark Page 3
(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.
No. 21-6038 United States v. Clark Page 4
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 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.
No. 21-6038 United States v. Clark Page 5
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 language indicates that the court should take a backward-looking approach and assess
the nature of the predicate offenses at the time the convictions for those offenses occurred.
No. 21-6038 United States v. Clark Page 6
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 18 U.S.C. § 922(g).
McNeill, 563 U.S. at 818. At sentencing, the district court was tasked with deciding whether he
qualified for a sentence enhancement under the Armed Career Criminal Act (ACCA). The
ACCA requires a fifteen-year mandatory minimum sentence for any person convicted under §
922(g) if they have at least three previous convictions for “a violent felony or a serious drug
offense.” 18 U.S.C. § 924(e)(1). To qualify as a “serious drug offense,” the offense must be
punishable by “a maximum sentence of ten years or more.” Id. § 924(e)(2)(A)(i).
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.” Id. § 924(e)(1). McNeill conceded that he was convicted of two
violent felonies. McNeill, 563 U.S. at 818. But he argued that none of his six previous drug
convictions was a serious drug offense. Id. Although they were punishable by a sentence of ten
years or more at the time McNeill was convicted, the state had since reduced their maximum
sentences to below ten years. Id. So, he argued, they no longer qualified as serious drug
offenses. Id. The Supreme Court rejected that argument. It unanimously held that, when
determining the maximum term of imprisonment for a prior offense, courts must look to the
punishment authorized under the statute at the time of the state conviction rather than at the time
of current federal sentencing. Id. at 825. The court explained that the statute is “concerned with
convictions that have already occurred” so the “only way to answer this backward-looking
question is to consult the law that applied at the time of that conviction.” Id. at 820.
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
No. 21-6038 United States v. Clark Page 7
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 since Mallett’s prior
violation, including the quantity element of the statute under which he was convicted. Id.Previously, a person violated the statute if he sold a controlled substance “in an amount less than
the minimum bulk amount,” measured by either weight in grams or by unit dose. Id. Ohio
revised its code to delete the terms “bulk amount” and “unit dose” so that the drug amount could
be measured only by weight in grams. Id. These changes obscured whether Mallett could have
received a ten-year sentence under the new definition. Id. at 499–500. We held that the district
court properly sentenced Mallett as a career offender, relying on two separate reasons for that
conclusion: (1) the amended Ohio drug law provided no guidance for determining how Mallett’s
offense should be classified, and (2) the Guidelines language in § 4B1.2(c) “strongly suggests
that, under the Sentencing Guidelines, the classification of a controlled-substance offense as a
felony should be determined as of the date that the defendant’s guilt of that offense was
established, not as of the time of his federal sentencing.” Id. at 504.
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 8 U.S.C. § 1227(a)(2)(B)(i)). The court looked to the
Kansas drug schedules from the time of the prior conviction to determine whether the defendant
had violated a law relating to a controlled substance. Id. at 808. Justice Ginsburg, writing for
the Court, noted that “tying immigration penalties to convictions” serves an important purpose
under the categorical approach by “limi[ting] the immigration adjudicator’s assessment of a past
No. 21-6038 United States v. Clark Page 8
criminal conviction to a legal analysis of the statutory offense” rather than examining the
underlying facts of those convictions. Id. at 805–06 (citation omitted) (emphasis in original).
This approach serves efficiency and uniformity, and “enables aliens to anticipate the immigration
consequences of guilty pleas in criminal court.” Id. at 806 (citation omitted); see also Doe v.
Sessions, 886 F.3d 203, 208–10 (2nd Cir. 2018) (“[A] ‘time-of-conviction rule’ provides both the
Government and the alien with maximum clarity at the point at which it is most critical for an
alien to assess . . . whether pending criminal charges may carry a risk of adverse immigration
consequences.”) (citation omitted); Gordon v. U.S. Att’y Gen., 962 F.3d 1344, 1350–51 & n.4
(11th Cir. 2020); Martinez v. Att’y Gen., 906 F.3d 281, 287 (3d Cir. 2018). It is true that the
justifications for a time-of-conviction rule are most compelling in the immigration context given
the immediate removal consequences that flow from criminal convictions, but citizen criminal
defendants, too, deserve the same clarity when they plead guilty to offenses that carry the
possibility of future sentencing enhancements if they reoffend.
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
U.S.S.G. § 2K2.1); United States v. Sanders, 909 F.3d 895, 901 (7th Cir. 2018) (sentencing
enhancement under 21 U.S.C. § 841(b)(1)(B)); United States v. Turlington, 696 F.3d 425, 427–
28 (3d Cir. 2012) (revocation of supervised release under 18 U.S.C. § 3583(e)(3)); United States
v. Mazza, 503 F. App’x 9, 11 (2d Cir. 2012) (order) (calculation of criminal history category
under U.S.S.G. § 4A1.1(c)); United States v. Bermudez-Zamora, 788 F. App’x 523, 524 (9th Cir.
2019) (per curiam) (sentencing enhancement under U.S.S.G. § 2L1.2(b)(3)(A)); United States v.
Moss, 445 F. App’x 632, 635 (4th Cir. 2011) (per curiam) (sentencing enhancement under
18 U.S.C. § 3559(c)(1)). The application of a time-of-conviction rule in these contexts shows
the workability and logic of the approach.
No. 21-6038 United States v. Clark Page 9
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 U.S.S.G. § 4B1.2(a). That provision
enumerates specific offenses that constitute a crime of violence. He likens the removal of
burglary from the enumerated offenses to the removal of hemp from the drug schedules; just as
burglary is no longer a predicate offense, neither is hemp. The difference Clark overlooks is that
the Commission amended the text of the Guidelines to remove burglary from the crime-of-
violence definition. See U.S.S.G. Supp. to App’x C, Amend. 798 (Aug. 1, 2016). But the
Guidelines’ text itself was not similarly amended when hemp was removed from the federal and
state drug schedules. Cf. United States v. Ruth, 966 F.3d 642, 651 (7th Cir. 2020) (noting that
“the career-offender guideline, and its definition of controlled substance offense, does not
incorporate, cross-reference, or in any way refer to the Controlled Substances Act” and its
accompanying drug schedules). Whether a substance was controlled at the time of conviction
remains the proper inquiry based on the Guidelines’ text.
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.”
U.S.S.G. § 1B1.11(a); 18 U.S.C. § 3553(a)(4)(A)(i–ii); Peugh v. United States, 569 U.S. 530,
537–38 (2013). From that, Clark extrapolates that the court must use the drug schedules in effect
on the sentencing date. After all, Clark reasons, “controlled substance offenses” become relevant
only at the time of the sentencing for the instant offense. If Clark had never committed another
offense, whether his prior convictions count as controlled substance offenses would be
inconsequential. Thus, while all parties agree that the prior convictions are frozen in time for
purposes of the first step of the categorical approach, the Guidelines themselves are subject to
amendment.
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
No. 21-6038 United States v. Clark Page 10
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. Rodriquez, 553 U.S. 377, 385 (2008)
(“[A] second or subsequent offense is often regarded as more serious because it portends greater
future danger and therefore warrants an increased sentence for purposes of deterrence and
incapacitation.”). In this context, the court inherently must consider the nature of past conduct
when sentencing for the current offenses. The basic inquiry is whether the defendant did
something in the past that makes the current offense more grievous. See id. at 386 (“When a
defendant is given a higher sentence under a recidivism statute . . . [t]he sentence is a stiffened
penalty for the latest crime, which is considered to be an aggravated offense because [it is] a
repetitive one.”) (citation omitted). Because “culpability and dangerousness” attach at the time a
defendant’s guilt is established, that question is best answered by looking to the time of
conviction. See United States v. Williams, 850 F. App’x 393, 405 (6th Cir. 2021) (Cook, J.,
concurring in the judgment) (citing McNeill, 563 U.S. at 823). It would be absurd to consult
current law to define a previous offense.
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 § 4B1.2(c) “strongly suggests” that a controlled substance felony is
classified as such at the time of conviction. Mallett, 334 F.3d at 504. He insists that “Mallett
No. 21-6038 United States v. Clark Page 11
says nothing about the timing for establishing the relevant federal definition; it holds only that
courts must look to the state definition at the time of the state conviction to establish the
maximum term of imprisonment for that conviction.” Appellant Reply Br. at 7. This view
“ignores Mallett’s construction of U.S.S.G. § 4B1.2.” Williams, 850 F. App’x at 404 (Cook, J.,
concurring in the judgment). This court considered and decided that the proper point of
reference for establishing the status of the prior offense as a controlled substance felony is the
point at which the defendant’s guilt was established. That justification cannot be ignored simply
because it was not the sole reason relied upon by the court.
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 rely on the drug schedules from the time of the prior
conviction rather than the time of the current sentencing when determining if the marijuana
offense was a “controlled substance offense.” Id. at 705. It reasoned that the state court
conviction was not a categorical match with the generic federal offense at the time of his federal
sentencing. Id. The court distinguished McNeill, stating that “McNeill nowhere implies that the
court must ignore current federal law and turn to a superseded version of the United States
Code,” and “it would be illogical to conclude that federal sentencing law attaches ‘culpability
and dangerousness’ to an act that, at the time of sentencing, Congress has concluded is not
culpable and dangerous.” Id. at 703 (emphasis in original). Further, this “would prevent
amendments to federal criminal law from affecting federal sentencing and would hamper
Congress’ ability to revise federal criminal law.” Id.No. 21-6038 United States v. Clark Page 12
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 U.S.S.G. § 2K2.1(a)(2)). Abdulaziz claimed that his
prior conviction for possession of marijuana did not qualify as a controlled substance offense
because Massachusetts had delisted hemp in the time between his prior offenses and the instant
sentencing. The court held that the proper point of reference for defining a “controlled substance
offense” is the drug schedules at the time of sentencing. Id. at 524. As in Bautista, the court
determined that McNeill did not resolve the issue because it concerned itself only with
ascertaining the elements of the state law of conviction as part of the first step of the categorical
approach. Id. at 525–26. While McNeill clarified that “the elements of the state offense of
conviction are locked in at the time of that conviction[,]” the First Circuit held that it does not
necessarily follow that the criteria under the text of the enhancement for the current sentencing
are also locked in at the time of the previous offense. Id. The court reasoned that “[a]
guideline’s enhancement for a defendant’s past criminal conduct . . . is reasonably understood to
be based in no small part on a judgment about how problematic that past conduct is when viewed
as of the time of the sentencing itself.” Id. at 528.
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
No. 21-6038 United States v. Clark Page 13
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 in 2015, prior to his instant offense. Id. at 1301–02. The
court agreed, holding that “due-process fair-notice considerations” required it to “apply the
version of the Controlled Substance Act Schedules in place when” Jackson committed the instant
offense. Id. at 1297. The court distinguished McNeill in the same way the other circuits have,
stating that the “question was not before the Court in McNeill.” Id. at 1306.
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 18 U.S.C. § 3553and U.S.S.G. § 1B1.11 dictate that the court should use a time-of-sentencing rule. Bautista, 989
F.3d at 703. But the court in McNeill expressly rejected that rationale, stating that “[d]espite
Congress’[s] use of present tense . . . we have turned to the version of state law that the
defendant was actually convicted of violating.” McNeill, 563 U.S. at 821. That is because the
present-tense argument “overlooks the fact that ACCA is concerned with convictions that have
already occurred.” Id. at 820. The same is true with the Guideline at issue here. Further, the
First Circuit in Abdulaziz reasoned that “[a] guideline’s enhancement for a defendant’s past
criminal conduct . . . is reasonably understood to be based in no small part on a judgment about
how problematic that past conduct is when viewed as of the time of the sentencing itself.” 998
F.3d at 528. But McNeill reasoned the opposite—that “culpability and dangerousness” attach at
the time of conviction. 563 U.S. at 823. Rather than contend with the Supreme Court’s
reasoning in McNeill, these courts sought to cabin the opinion to the first step of the categorical
approach and then used reasoning the Supreme Court rejected to justify their path. We decline to
adopt this flawed reasoning.
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
No. 21-6038 United States v. Clark Page 14
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. 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 fine a line between the first
and second steps of the categorical approach.
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.
No. 21-6038 United States v. Clark Page 15
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 § 4B1.1(a) because courts must define the term
“controlled substance offense” in the Guidelines with reference to the law in place at the time of
the prior conviction at issue. For these reasons, we affirm the judgment of the district court.
No. 21-6038 United States v. Clark Page 16
_________________
CONCURRENCE
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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.
The categorical approach has us replace these undisputed facts with imaginary ones. In
2014, the “least culpable conduct” the law proscribed was possession of hemp. So we must all
pretend that Clark possessed hemp instead of marijuana. Of course, no one believes that. Even
Clark can’t fully embrace the fiction: He says only that his convictions could have been for
hemp—not that he actually possessed hemp. But under the categorical approach, what could
have been is all that matters. Facts, even undisputed ones, are irrelevant.
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).