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 ┐ UNITED STATES OF AMERICA, │ Plaintiff-Appellee, │ > No. 21-6038 │ v. │ │ 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. _________________ 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 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, …
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