A Prior Drug Conviction Constitutes a Career Offender Predicate if, Under the Categorical Approach, It Qualified as a “Controlled Substance Offense” at the Time of Conviction.

In United States v. Drake, --- F.4th --- (6th Cir. 2025), the Sixth Circuit reaffirmed its holding from United States v. Clark, 46 F.4th 404 (6th Cir. 2022), that, when determining whether a prior drug conviction constitutes a “controlled substance offense” counting towards a defendant’s designation as a “career offender” under §§ 4B1.1 and 4B1.2 of the Sentencing Guidelines, a court must consult the drug schedules in place at the time of the prior conviction, rather that those in place at the time of the instant federal sentencing.

Clark involved a defendant sentenced for a drug crime as a career offender based on prior Tennessee marijuana convictions. In the time between the prior marijuana convictions and the federal drug offense, Tennessee and the federal government amended their respective drug schedules to narrow the definition of “marijuana” by excluding hemp. The Sixth Circuit held that Mr. Clark was properly sentenced as a “career offender” because hemp was classified as “marijuana” at the time of Mr. Clark’s prior convictions, and that the subsequent change in the law was irrelevant.

Drake involved essentially the same issue. He was sentenced as a “career offender” for possession with intent to distribute fentanyl, cocaine, and methamphetamine and received a 200-month prison term. One of the predicate convictions was an Ohio conviction for marijuana trafficking from 2016. In 2016, Ohio’s definition of “marijuana” included hemp, but that was no longer true at the time of his federal sentencing.

Mr. Drake argued that the Clark opinion had been undermined by the U.S. Supreme Court’s recent decision in Brown v. United States, 602 U.S. 101 (2024). Although that case held that the definition of “serious drug offense” in the Armed Career Criminal Act incorporated the time-of-conviction approach, the Court also observed that changes in law are treated differently under the ACCA than under the Guidelines. In rejecting Mr. Brown’s argument that it should follow the ordinary practice of applying the most up-to-date version of the Guidelines Manual, the Court observed that, while 18 U.S.C. § 3553(a)(4)(A)(ii) requires courts to apply the Guidelines “in effect on the date the defendant is sentenced,” the ACCA contains no similar instruction.

The Sixth Circuit found, however, that Clark continues to apply after Brown because the requirement that courts use the current version of the Guidelines Manual doesn’t answer the question of what the term “controlled substance” in § 4B1.2 of that current manual means. It held that the text and purpose of § 4B1.2 supports a time-of-conviction approach and that the district court correctly treated Mr. Drake as a “career offender.”