Keep an Eye Out for Prior Marijuana Convictions

In the 2018 Farm Bill, Congress amended the federal marijuana definition to exclude anything with less than 0.3% THC (commonly called "hemp," but be careful: some sources, including some state-court decisions, use "hemp" to refer to other things). That has spurred some defendants to challenge whether a prior marijuana offense counts as a "controlled substance offense" under Guidelines § 4B1.2. The guidelines definition requires that the offense involve a "controlled substance," and if the state or federal definition did not exclude substances with less than 0.3% THC, they argue, their offenses were categorically overbroad. Two courts of appeals and the "vast majority of district courts to consider the issue" have agreed and held that certain prior marijuana offenses are not controlled substance offenses. See United States v. Perry, No. 20-6183, slip op. at 3-4 (6th Cir. Aug. 18, 2021) (collecting cases).

Enter Mr. Perry. The district court found that he had three prior controlled substance offenses: a federal conviction involving cocaine and two Tennessee convictions involving marijuana. He was thus a career offender, enhancing his guidelines range from 30-37 months in prison to 151-188 months in prison. The court sentenced him to 151 months.

On appeal, Mr. Perry argued that his two Tennessee marijuana convictions weren't controlled substance offenses because the Tennessee definition included substances with less than 0.3% THC. And the court of appeals said he made a "strong claim that he should not have been sentenced as a career offender." Id. at 4. One problem, though: he never objected in the district court. Given no published Sixth Circuit decision on the issue and at least one case deciding the question the other way, the court concluded that Mr. Perry could not establish plain error and affirmed his 151-month sentence.

The court of appeals is sure to decide this issue soon. In the meantime, take a close look at prior marijuana convictions for any objections.