Sometimes a "Marijuana" Offense Is Not a "Marijuana" Offense

In United States v. Williams, No. 19-6410 (6th Cir. Mar. 25, 2021), a panel majority of the Sixth Circuit concluded that Tony Williams’s 2015 Tennessee conviction for possession of marijuana for resale does not qualify as a “controlled substance offense” for purposes of § 4B1.2(b) of the U.S. Sentencing Guidelines. The conviction does not qualify because when Mr. Williams was convicted in 2015 in state court, Tennessee defined “marijuana” to include hemp.  So under the categorical approach, the state conviction must be presumed to be a hemp offense.  By the time Mr. Williams was sentenced in federal court for being a felon in possession of a firearm, in November 2019, the definition of “marijuana” for federal Guidelines’ purposes had been amended to exclude hemp.  And hemp is excluded from the Guidelines’ current definition regardless whether the term “controlled substance” is defined by reference to federal or state law, as the federal schedule was amended to exclude hemp in December 2018 by the Agricultural Improvement Act of 2018, and Tennessee followed suit by amending its schedule to exclude hemp in April 2019.  

Because the Guidelines’ current definition of controlled substance excludes hemp, the majority held, the district court erred when it counted Mr. Williams’s prior hemp conviction as a Guideline “marijuana” offense. In reaching its conclusion, the majority agreed with the Ninth Circuit’s recent decision in United States v. Bautista, No. 19-10448, __ F.3d __, 2021 WL 769601 (9th Cir. 2020), as amended on denial of reh’g (Feb. 26, 2021).  

Judge Cook disagreed.  In her view, the district court properly compared Mr. Williams’s 2015 state hemp offense to the Guidelines’ definition of “controlled substance offense” in effect in 2015, which at the time included hemp.  Judge Cook argued that this approach is required by McNeill v. United States, 563 U.S. 816 (2011), in which the Supreme Court held that when determining whether a prior state offense is “punishable by ten years or more” for ACCA purposes, the court is to look to the state law in effect at the time of the offense.  

In response to Judge Cook’s points, the majority explained that its conclusion is consonant with McNeill’s approach, which itself reflects the categorical approach generally. Under the matching exercise of the categorical approach, the court determines the elements of the prior offense by looking at the state law in effect at the time of the offense.  The court then maps the elements of that prior offense onto the current relevant federal definition. In the case of McNeill, the federal definition was the ACCA’s definition of “felony drug offense” and its requirement that the offense be “punishable by ten years or more.”  Here, under 18 U.S.C. 3553(a)(4)(A) and U.S.S.G. § 1B1.11, the relevant federal definition is the current Guidelines definition of “controlled substance,” which is defined by reference to current drug schedules.  

Notably, the panel did not wade into the lingering question whether the Guidelines’ term “controlled substance” is defined by reference to the federal schedule only (as a number of other circuits hold and as the Sixth Circuit has held in some unpublished decisions), or also includes substances listed in state schedules. In Mr. Williams’s case, the categorical mismatch arises either way.  

The bottom line: This unpublished decision sends some good vibes to those who raise this issue in the district court.  But it’s a total buzz kill for Mr. Williams, who gets no relief because he did not raise the issue until appeal.  

This outcome is a hard reminder that a guideline calculation error—even one that increases the range by years and even after Molina-Martinez and Rosales-Mireles—does not mean the court of appeals will grant relief. Here, the panel said the error was not “clear or obvious,” as evidenced in part by Judge Cook’s concurrence, so does not meet the second prong of plain error review under United States v. Olano, 507 U.S. 725, 734 (1993).  This is despite that by the time of appellate review, the Ninth Circuit in Bautista had held that the same error was reversible plain error there, and multiple district courts around the country (including in Mr. Williams’s own district when the issue was raised while his appeal was pending), have reached the same conclusion.  

Opinion linked here: 

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0156n-06.pdf