NOT RECOMMENDED FOR PUBLICATION

File Name: 22a0376n.06

Case No. 21-6227

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

Sep 16, 2022

) DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA,

)

Plaintiff-Appellee, )

) ON APPEAL FROM THE UNITED v. )

STATES DISTRICT COURT FOR

)

) THE EASTERN DISTRICT OF JACQUES THRON MARCUS, ) TENNESSEE

Defendant-Appellant. )

) OPINION Before: McKEAGUE, THAPAR, and READLER, Circuit Judges.

THAPAR, Circuit Judge. Jacques Marcus pled guilty to being a felon in possession of a firearm. Since he had a previous Tennessee conviction for possessing marijuana with intent to sell, the district court enhanced his sentence. Marcus appeals and claims that his Tennessee marijuana conviction does not qualify as a “controlled substance offense,” and thus, the enhancement was improper. See Tenn. Code Ann. § 39-17-417(a); U.S.S.G. § 2K2.1(a)(4)(A).

Applying the categorical approach, as we must, we compare the state statute of conviction with the conduct criminalized under the Guidelines. United States v. Garth, 965 F.3d 493, 495 (6th Cir. 2020). “[I]f the outer edges of the state law—often the ‘least culpable conduct’ that the law proscribes—extend past the guidelines’ definition, then the conviction doesn’t count” for the enhancement. Id. Marcus benefits from our presuming that his marijuana conviction was for Case No. 21-6227, United States v. Marcus possession of hemp—the “least culpable conduct” proscribed. See United States v. Clark, __ F. 4th __, 2022 WL 3500188, *2 (6th Cir. Aug. 18, 2022).

Here, timing is everything. In 2017, when Marcus was convicted in state court, hemp was a controlled substance under both state and federal law. But by 2021, when Marcus was sentenced in federal court, both the state and federal drug schedules delisted hemp. See id. The dispositive question here is which law governs: Do we define “controlled substance” by reference to the law in place at the time of Marcus’s state-court conviction, or by reference to the law in place at the time of his federal-court sentencing? If we follow a time-of-conviction rule, Marcus loses; if a time-of-sentencing rule, he wins.

We answered this precise question in United States v. Clark, adopting a time-of-conviction rule. See id. at *8. That resolves this case. Because hemp was a controlled substance at the time of Marcus’s Tennessee marijuana conviction, that conviction is categorically a controlled- substance offense under the Guidelines. Id. at *2. Thus, the district court correctly applied U.S.S.G § 2K2.1(a)(4)(A).

AFFIRMED.

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