Sentencing Guidelines/”Controlled Substance Offense” – Conviction for possession of marijuana under state law that included hemp in its definition of marijuana could not count as a prior “controlled substance offense” where federal law had changed to exclude hemp as a prohibited substance before the defendant’s sentencing.
Standard of Review/Plain Error – Where the appealing party objected on general grounds to the decision below but did not clearly articulate grounds for that objection review is for plain error only.
Tony Dewayne Williams pleaded guilty to being a felon in possession of a firearm in violation of federal law. The PSR for his case increased his offense level because he had a Tennessee marijuana conviction that it treated as a prior felony conviction for a “controlled substance offense.” After the Tennessee conviction, but before Williams’s sentencing in the federal case, both Tennessee law and federal law changed to exclude hemp from the definition of prohibited marijuana. Williams objected to the enhancement for a prior conviction of a “controlled substance offense” on general grounds, but the district court overruled him and sentenced him to the low-end of the resulting Guideline range.
Williams appealed his sentence. Because Williams did not sufficiently argue the grounds for his objection in the district court, the Sixth Circuit reviewed the case for plain error only.
The Sixth Circuit held that the sentencing court did commit error in applying the enhancement for a prior “controlled substance offense” to Williams’s offense level. Williams’s Tennessee conviction must be presumed to have involved the least culpable conduct criminalized by the statute at the time of his conviction, which in this case would be possession of hemp. Since that conduct was not criminalized by the controlled substance schedules that were in effect at the time of Williams’s sentencing in the instant case, the past conviction could not “count” for the enhancement.
While the sentencing court erred, the Court noted that the points raised by the Government and by the concurrence reflected that the state of the law on the issue was not obvious, however, and therefore the sentencing court’s error was not “clear or obvious,” but rather was subject to reasonable dispute. As such, the Court concluded, Williams’s sentence must be affirmed.
Judge Cook concurred in the judgement but wrote separately to indicate that she did not find any error in the sentencing court’s decision to count the Tennessee conviction as a prior “controlled substance offense.” Rejecting the majority’s reading of the case, she argued that under McNeill v. United States, it mattered only that Williams’s conviction qualified as a controlled-substance offense at the time he sustained it, rather than at the time of his sentencing on the subsequent federal conviction.
Appeal from the Eastern District of Tennessee
Opinion by Stranch, joined by Moore
Concurrence by Cook
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