RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0193p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

JAMES CLARK, III, 

Defendant-Appellant.

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No. 21-6038

Appeal from the United States District Court for the Western District of Tennessee at Jackson.

No. 1:19-cr-10027-1—S. Thomas Anderson, Chief District Judge.

Argued: June 15, 2022

Decided and Filed: August 18, 2022

Before: GIBBONS, COOK, and THAPAR, Circuit Judges.

_________________

COUNSEL

ARGUED: M. Dianne Smothers, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Memphis, Tennessee, for Appellant. Kevin G. Ritz, UNITED STATES ATTORNEY’S 

OFFICE, Memphis, Tennessee, for Appellee. ON BRIEF: M. Dianne Smothers, OFFICE OF 

THE FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant. Kevin G. Ritz, 

UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.

COOK, J., delivered the opinion of the court in which GIBBONS and THAPAR, JJ., 

joined. THAPAR, J. (pg. 16), delivered a separate concurring opinion.

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OPINION

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COOK, Circuit Judge. Defendant James Clark, III pled guilty to a drug crime in federal 

court. He received an enhanced sentence because he was designated a career offender under the 

>
No. 21-6038 United States v. Clark Page 2

Sentencing Guidelines based on prior marijuana convictions. Section 4B1.1 of the Guidelines 

states that a defendant is a career offender if, among other criteria, he has committed at least two 

prior felonies for a crime of violence or a “controlled substance offense.” In the time between 

Clark’s previous drug crimes and the current one, Tennessee and the federal government 

amended their respective drug schedules to narrow the definition of marijuana by excluding 

hemp. Based on this narrowed definition, Clark contests his career offender designation. He 

argues that his prior marijuana offenses are not categorically controlled substance offenses 

because hemp no longer qualifies as marijuana, and therefore, because his prior marijuana 

offenses could have been for hemp, those prior convictions cannot count as “controlled substance 

offenses” under § 4B1.1. Thus, this appeal asks us to decide whether the Guidelines’ use of the 

term “controlled substance” in the career offender enhancement should be defined with reference 

to the drug schedules in place at the time of the prior convictions at issue, or the schedules in 

effect at the time of sentencing on the current federal offense. We hold that the proper reference 

is the law in place at the time of the prior convictions.

I.

In 2019, law enforcement officers arrested Clark for obtaining and distributing controlled 

substances, including cocaine and heroin, and for selling heroin to undercover agents on three 

occasions. A grand jury indicted Clark for (1) conspiracy to distribute and possess with intent to 

distribute a mixture and substance containing a detectable amount of heroin, fentanyl, and 

cocaine in violation of 21 U.S.C. §§ 841(a) and 846, and (2) possession with intent to distribute 

those mixtures in violation of 21 U.S.C. § 841(a). 

This was not Clark’s first encounter with the law. He committed various felonies in the 

past, and those included two Tennessee convictions for possessing marijuana with the intent to 

sell or deliver. Those previous convictions had the potential to extend Clark’s sentence for his 

most recent drug offense under the Sentencing Guidelines’ career offender enhancement. The 

Guidelines provide that defendants qualify as career offenders if (1) they are at least eighteen 

years old when they committed the instant offense; (2) the instant offense is a felony crime of 

violence or felony controlled substance offense; and—most important for today’s purposes—
No. 21-6038 United States v. Clark Page 3

(3) they have “at least two prior felony convictions of either a crime of violence or a controlled 

substance offense.” U.S.S.G. § 4B1.1(a). 

Clark pled guilty to the possession count of his instant offense, reserving the right to 

appeal the court’s decision on whether his prior Tennessee marijuana convictions are controlled 

substance offenses qualifying him as a career offender under the Guidelines. The government 

agreed not to seek an aggravating role enhancement, and the parties agreed that Clark should be 

held accountable for a drug weight of 333 kilograms, resulting in a base offense level of 24. The 

Presentence Report (PSR) calculated Clark’s total offense level at 29, taking into account his 

career offender status, among other factors. Clark’s criminal history score placed him in 

Category V, but his career offender status raised him to Category VI. The Guidelines range was 

151–188 months. 

Clark objected to his career offender designation, both in a written response to the PSR 

and at the sentencing hearing. Critical to his objection, in December 2018, prior to Clark’s arrest 

in the instant case, Congress passed the Agriculture Improvement Act (commonly known as the 

Farm Bill), which narrowed the federal definition of marijuana to exclude hemp. 

21 U.S.C. § 802(16). Hemp is “the plant Cannabis sativa L. and any part of that plant . . . with a 

delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight 

basis.” 7 U.S.C. § 1639o(1). Tennessee narrowed its definition in a similar fashion a few 

months later. Tenn. Code. Ann. §§ 39-17-402(16)(C), 43-27-101(3). Clark argued that he did 

not qualify as a career offender because both the state and federal governments had revised their 

drug schedules to exclude hemp from the definition of marijuana in the time since his prior 

convictions, so those convictions are not categorically controlled substance offenses. 

The district court overruled Clark’s objections, concluding that his prior marijuana 

convictions qualified him as a career offender. The court sentenced Clark to 151 months of 

imprisonment followed by three years of supervised release. Clark appeals. 
No. 21-6038 United States v. Clark Page 4

II.

The sole issue on appeal is whether a prior Tennessee marijuana conviction qualifies as a 

predicate “controlled substance offense” for the Guidelines’ career offender enhancement when 

hemp has been delisted from both the state and federal drug schedules prior to sentencing.

We review de novo whether a prior conviction qualifies as a predicate offense for a 

Guidelines enhancement. United States v. Havis, 927 F.3d 382, 384 (6th Cir. 2019) (en banc) 

(per curiam). To do so, we employ a three-step categorical approach. United States v. Garth, 

965 F.3d 493, 495 (6th Cir. 2020); Taylor v. United States, 495 U.S. 575, 588–89 (1990). Under 

this approach we look only to the elements of the criminalized conduct, not the defendant’s 

actual conduct. Havis, 927 F.3d at 384–85. First, we identify the conduct that was criminalized 

under the state law of conviction; then, we evaluate that relevant conduct as defined in the 

Guidelines; and finally, we “overlay the two.” Garth, 965 F.3d at 495. “[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” as a predicate offense. Id. “If, 

however, the boundaries of the state law and the guidelines’ definition are coterminous, or the 

guidelines’ definition sweeps more broadly, then the conviction counts.” Id. We use the version 

of the Guidelines “in effect on the date that the defendant is sentenced.” U.S.S.G. § 1B1.11(a). 

Employing the categorical approach’s first step—identifying the conduct criminalized by 

the state statute of conviction—Clark benefits from our presuming that his 2014 marijuana 

convictions were for the “least culpable conduct,” which the parties agree in his case would be 

possession of hemp. 

Under step two, we look to the relevant conduct defined in the Guidelines. For the career 

offender enhancement to apply, a defendant must have at least two prior felony convictions for 

“controlled substance offense[s].” Id. § 4B1.1(a). The Guidelines define a “controlled substance 

offense” as:

[A]n offense under federal or state law . . . that prohibits the manufacture, import, 

export, distribution, or dispensing of a controlled substance . . . or the possession 

of a controlled substance . . . with intent to manufacture, import, export, 

distribute, or dispense.
No. 21-6038 United States v. Clark Page 5

Id. § 4B1.2(b). With the Guidelines leaving “controlled substance” otherwise undefined, the 

parties agree that, although state law criminalized hemp offenses at the time of Clark’s prior 

convictions, both the state and federal drug schedules delisted hemp before the court sentenced 

Clark for his latest drug offenses in 2021. 

We turn then to the dispute here: whether courts assess the meaning accorded the term 

“controlled substance” by consulting the drug schedules in place at the time of the prior 

conviction or the drug schedules in place at the time of the instant federal sentencing—a time-ofconviction rule, or a time-of-sentencing rule. The district court here looked to the time of 

conviction to enhance Clark’s sentence under § 4B1.1(a) because hemp was a controlled 

substance under both state and federal law at the time of his state marijuana convictions in 2014. 

Thus, the court reasoned that the “state law and the guidelines’ definition are coterminous.” See 

Garth, 965 F.3d at 495. If courts instead must look to the time of sentencing, hemp’s delisting 

from the state and federal drug schedules prior to sentencing in this case means that his prior 

2014 convictions are not predicate offenses under § 4B1.1(a). We adopt a time-of-conviction 

rule. 

A.

The time-of-conviction approach flows from the Guidelines’ text. Section 4B1.1 states 

that a career offender is a person who has “at least two prior felony convictions” for a crime of 

violence or controlled substance offense. U.S.S.G. § 4B1.1(a) (emphasis added). Section 

4B1.2(c), which immediately follows the definition of “controlled substance offense,” further 

defines “two prior felony convictions” to require that the defendant’s commission of the instant 

offense be “subsequent to sustaining at least two felony convictions” for a crime of violence or 

controlled substance offense. Id. § 4B1.2(c) (emphasis added). The words “prior” and 

“subsequent to” direct the court’s attention to events that occurred in the past. Thus, the 

Guidelines language indicates that the court should take a backward-looking approach and assess 

the nature of the predicate offenses at the time the convictions for those offenses occurred. 
No. 21-6038 United States v. Clark Page 6

The Supreme Court’s decision in McNeill v. United States, 563 U.S. 816 (2011), and our 

opinion in Mallett v. United States, 334 F.3d 491 (6th Cir. 2003), confirm the text’s support for a 

time-of-conviction rule. 

We begin with McNeill. Although no binding caselaw exists that directly addresses the 

issue presented here, the Supreme Court answered a closely related question in McNeill. There, 

defendant McNeill pled guilty to unlawful possession of a firearm under 18 U.S.C. § 922(g). 

McNeill, 563 U.S. at 818. At sentencing, the district court was tasked with deciding whether he 

qualified for a sentence enhancement under the Armed Career Criminal Act (ACCA). The 

ACCA requires a fifteen-year mandatory minimum sentence for any person convicted under § 

922(g) if they have at least three previous convictions for “a violent felony or a serious drug 

offense.” 18 U.S.C. § 924(e)(1). To qualify as a “serious drug offense,” the offense must be 

punishable by “a maximum sentence of ten years or more.” Id. § 924(e)(2)(A)(i). 

The district court determined that McNeill qualified for the enhancement based on at 

least three prior convictions: two “violent felonies” (assault with a deadly weapon and robbery) 

and a “serious drug offense.” Id. § 924(e)(1). McNeill conceded that he was convicted of two 

violent felonies. McNeill, 563 U.S. at 818. But he argued that none of his six previous drug 

convictions was a serious drug offense. Id. Although they were punishable by a sentence of ten 

years or more at the time McNeill was convicted, the state had since reduced their maximum 

sentences to below ten years. Id. So, he argued, they no longer qualified as serious drug 

offenses. Id. The Supreme Court rejected that argument. It unanimously held that, when 

determining the maximum term of imprisonment for a prior offense, courts must look to the 

punishment authorized under the statute at the time of the state conviction rather than at the time 

of current federal sentencing. Id. at 825. The court explained that the statute is “concerned with 

convictions that have already occurred” so the “only way to answer this backward-looking 

question is to consult the law that applied at the time of that conviction.” Id. at 820. 

Although McNeill interpreted the ACCA and here the panel interprets the Guidelines, the 

cases are remarkably similar. Both involve recidivism enhancements, which by nature concern a 

defendant’s past conduct. In both cases, the defendant relied on an intervening change in state 

law (and here federal too) that ostensibly shifts the meaning of a provision that enhances their 
No. 21-6038 United States v. Clark Page 7

sentence. Both cases contemplate whether to define that term with reference to current law, or 

law from the time of the prior conviction. McNeill definitively held that the time of conviction is 

the proper reference under the ACCA.

McNeill favorably cited our decision in Mallett v. United States, 334 F.3d 491 (6th Cir. 

2003). There, we addressed whether a defendant should have his sentence enhanced under the 

Guidelines based on a prior conviction for a “serious drug offense.” Id. at 498. To be a serious 

drug offense, the prior violation had to be punishable by a maximum term of imprisonment of 

ten years or more. Id. at 499. Ohio had amended its drug laws in the time since Mallett’s prior 

violation, including the quantity element of the statute under which he was convicted. Id. 

Previously, a person violated the statute if he sold a controlled substance “in an amount less than 

the minimum bulk amount,” measured by either weight in grams or by unit dose. Id. Ohio 

revised its code to delete the terms “bulk amount” and “unit dose” so that the drug amount could 

be measured only by weight in grams. Id. These changes obscured whether Mallett could have 

received a ten-year sentence under the new definition. Id. at 499–500. We held that the district 

court properly sentenced Mallett as a career offender, relying on two separate reasons for that 

conclusion: (1) the amended Ohio drug law provided no guidance for determining how Mallett’s 

offense should be classified, and (2) the Guidelines language in § 4B1.2(c) “strongly suggests 

that, under the Sentencing Guidelines, the classification of a controlled-substance offense as a 

felony should be determined as of the date that the defendant’s guilt of that offense was 

established, not as of the time of his federal sentencing.” Id. at 504. 

The McNeill/Mallett approach finds support in other contexts as well. In the immigration 

realm, courts have expressly adopted a time-of-conviction approach. For example, in Mellouli v. 

Lynch, 575 U.S. 798 (2015), the Supreme Court examined an immigration statute authorizing 

removal of a noncitizen “convicted of a violation of . . . any law or regulation . . . relating to a 

controlled substance.” Id. at 811 (quoting 8 U.S.C. § 1227(a)(2)(B)(i)). The court looked to the 

Kansas drug schedules from the time of the prior conviction to determine whether the defendant 

had violated a law relating to a controlled substance. Id. at 808. Justice Ginsburg, writing for 

the Court, noted that “tying immigration penalties to convictions” serves an important purpose 

under the categorical approach by “limi[ting] the immigration adjudicator’s assessment of a past 
No. 21-6038 United States v. Clark Page 8

criminal conviction to a legal analysis of the statutory offense” rather than examining the 

underlying facts of those convictions. Id. at 805–06 (citation omitted) (emphasis in original). 

This approach serves efficiency and uniformity, and “enables aliens to anticipate the immigration 

consequences of guilty pleas in criminal court.” Id. at 806 (citation omitted); see also Doe v. 

Sessions, 886 F.3d 203, 208–10 (2nd Cir. 2018) (“[A] ‘time-of-conviction rule’ provides both the 

Government and the alien with maximum clarity at the point at which it is most critical for an 

alien to assess . . . whether pending criminal charges may carry a risk of adverse immigration 

consequences.”) (citation omitted); Gordon v. U.S. Att’y Gen., 962 F.3d 1344, 1350–51 & n.4 

(11th Cir. 2020); Martinez v. Att’y Gen., 906 F.3d 281, 287 (3d Cir. 2018). It is true that the 

justifications for a time-of-conviction rule are most compelling in the immigration context given 

the immediate removal consequences that flow from criminal convictions, but citizen criminal 

defendants, too, deserve the same clarity when they plead guilty to offenses that carry the 

possibility of future sentencing enhancements if they reoffend. 

Beyond the immigration context, courts apply a time-of-conviction approach to several 

other provisions that lengthen a defendant’s sentence or increase the Guidelines range. See, 

e.g., United States v. Doran, 978 F.3d 1337, 1339–40 (8th Cir. 2020) (enhancement under 

U.S.S.G. § 2K2.1); United States v. Sanders, 909 F.3d 895, 901 (7th Cir. 2018) (sentencing 

enhancement under 21 U.S.C. § 841(b)(1)(B)); United States v. Turlington, 696 F.3d 425, 427–

28 (3d Cir. 2012) (revocation of supervised release under 18 U.S.C. § 3583(e)(3)); United States 

v. Mazza, 503 F. App’x 9, 11 (2d Cir. 2012) (order) (calculation of criminal history category 

under U.S.S.G. § 4A1.1(c)); United States v. Bermudez-Zamora, 788 F. App’x 523, 524 (9th Cir. 

2019) (per curiam) (sentencing enhancement under U.S.S.G. § 2L1.2(b)(3)(A)); United States v. 

Moss, 445 F. App’x 632, 635 (4th Cir. 2011) (per curiam) (sentencing enhancement under 

18 U.S.C. § 3559(c)(1)). The application of a time-of-conviction rule in these contexts shows 

the workability and logic of the approach. 
No. 21-6038 United States v. Clark Page 9

B.

Clark makes several counterarguments. None is persuasive.

Clark first contends that “controlled substance” should be interpreted similarly to its 

neighboring provision that defines “crime of violence.” See U.S.S.G. § 4B1.2(a). That provision 

enumerates specific offenses that constitute a crime of violence. He likens the removal of 

burglary from the enumerated offenses to the removal of hemp from the drug schedules; just as 

burglary is no longer a predicate offense, neither is hemp. The difference Clark overlooks is that 

the Commission amended the text of the Guidelines to remove burglary from the crime-ofviolence definition. See U.S.S.G. Supp. to App’x C, Amend. 798 (Aug. 1, 2016). But the 

Guidelines’ text itself was not similarly amended when hemp was removed from the federal and 

state drug schedules. Cf. United States v. Ruth, 966 F.3d 642, 651 (7th Cir. 2020) (noting that 

“the career-offender guideline, and its definition of controlled substance offense, does not 

incorporate, cross-reference, or in any way refer to the Controlled Substances Act” and its 

accompanying drug schedules). Whether a substance was controlled at the time of conviction 

remains the proper inquiry based on the Guidelines’ text. 

Clark also emphasizes what he sees as a determinative textual argument: courts are 

obligated to “use the Guidelines Manual in effect on the date that the defendant is sentenced.” 

U.S.S.G. § 1B1.11(a); 18 U.S.C. § 3553(a)(4)(A)(i–ii); Peugh v. United States, 569 U.S. 530, 

537–38 (2013). From that, Clark extrapolates that the court must use the drug schedules in effect 

on the sentencing date. After all, Clark reasons, “controlled substance offenses” become relevant 

only at the time of the sentencing for the instant offense. If Clark had never committed another 

offense, whether his prior convictions count as controlled substance offenses would be 

inconsequential. Thus, while all parties agree that the prior convictions are frozen in time for 

purposes of the first step of the categorical approach, the Guidelines themselves are subject to 

amendment. 

Accepting that a sentencing court applies the currently effective Guidelines, however, 

leaves unanswered the definitional question: what the term “controlled substance” means at 

sentencing. Under McNeill’s logic, courts must define the term as it exists in the Guidelines at 
No. 21-6038 United States v. Clark Page 10

the time of federal sentencing by looking backward to what was considered a “controlled 

substance” at the time the defendant received the prior conviction that triggers the enhancement. 

This approach tracks the purpose of recidivism enhancements. Recidivism enhancements are 

intended to deter future crime by punishing those future crimes more harshly if the defendant has 

committed certain prior felonies. See United States v. Rodriquez, 553 U.S. 377, 385 (2008) 

(“[A] second or subsequent offense is often regarded as more serious because it portends greater 

future danger and therefore warrants an increased sentence for purposes of deterrence and 

incapacitation.”). In this context, the court inherently must consider the nature of past conduct 

when sentencing for the current offenses. The basic inquiry is whether the defendant did 

something in the past that makes the current offense more grievous. See id. at 386 (“When a 

defendant is given a higher sentence under a recidivism statute . . . [t]he sentence is a stiffened 

penalty for the latest crime, which is considered to be an aggravated offense because [it is] a 

repetitive one.”) (citation omitted). Because “culpability and dangerousness” attach at the time a 

defendant’s guilt is established, that question is best answered by looking to the time of 

conviction. See United States v. Williams, 850 F. App’x 393, 405 (6th Cir. 2021) (Cook, J., 

concurring in the judgment) (citing McNeill, 563 U.S. at 823). It would be absurd to consult 

current law to define a previous offense. 

Clark raises another point about McNeill, but this one, too, lacks merit. He maintains that 

the McNeill approach should not govern because the term “serious drug offense” in the ACCA 

statute refers only to prior offenses while “controlled substance offense” in the Guidelines refers 

both to prior offenses and instant federal offenses. So, he argues, to adopt a rule that whether 

something is a “controlled substance” depends on the drug schedules at the time of conviction 

would create an incongruency in the Guidelines in the instances where the term refers to current 

offenses. The Guidelines, however, plainly distinguish between prior and current offenses. 

When the Guidelines refer to prior offenses, it is logical to use the prior drug schedules. When 

the Guidelines refer to instant offenses, the current drug schedules are an appropriate reference. 

Clark also attempts to distinguish Mallett by ignoring its second justification: that the 

Guidelines language in § 4B1.2(c) “strongly suggests” that a controlled substance felony is 

classified as such at the time of conviction. Mallett, 334 F.3d at 504. He insists that “Mallett
No. 21-6038 United States v. Clark Page 11

says nothing about the timing for establishing the relevant federal definition; it holds only that 

courts must look to the state definition at the time of the state conviction to establish the 

maximum term of imprisonment for that conviction.” Appellant Reply Br. at 7. This view 

“ignores Mallett’s construction of U.S.S.G. § 4B1.2.” Williams, 850 F. App’x at 404 (Cook, J., 

concurring in the judgment). This court considered and decided that the proper point of 

reference for establishing the status of the prior offense as a controlled substance felony is the 

point at which the defendant’s guilt was established. That justification cannot be ignored simply 

because it was not the sole reason relied upon by the court. 

C.

Clark contends that we should follow the other circuits that have adopted a time-ofsentencing rule. See United States v. Bautista, 989 F.3d 698, 704 (9th Cir. 2021); United States 

v. Abdulaziz, 998 F.3d 519, 531 (1st Cir. 2021); United States v. Hope, 28 F.4th 487, 505–06 (4th 

Cir. 2022); but see United States v. Jackson, No. 20-3684, 2022 WL 303231, at *1–2 (8th Cir. 

Feb. 2, 2022) (per curiam). Those courts, however, did not adequately engage with McNeill’s 

reasoning. 

The Ninth Circuit first decided this issue in United States v. Bautista, 989 F.3d 698 (9th 

Cir. 2021). There, the district court enhanced defendant Bautista’s sentence for possession of 

ammunition under the Guidelines based on a prior marijuana offense. Id. at 701. The court held 

that it was plain error for the district court to rely on the drug schedules from the time of the prior 

conviction rather than the time of the current sentencing when determining if the marijuana 

offense was a “controlled substance offense.” Id. at 705. It reasoned that the state court 

conviction was not a categorical match with the generic federal offense at the time of his federal 

sentencing. Id. The court distinguished McNeill, stating that “McNeill nowhere implies that the 

court must ignore current federal law and turn to a superseded version of the United States 

Code,” and “it would be illogical to conclude that federal sentencing law attaches ‘culpability 

and dangerousness’ to an act that, at the time of sentencing, Congress has concluded is not

culpable and dangerous.” Id. at 703 (emphasis in original). Further, this “would prevent 

amendments to federal criminal law from affecting federal sentencing and would hamper 

Congress’ ability to revise federal criminal law.” Id. 
No. 21-6038 United States v. Clark Page 12

The First Circuit took the same approach in United States v. Abdulaziz, 998 F.3d 519 (1st 

Cir. 2021). The district court enhanced defendant Abdulaziz’s sentence for a firearm offense 

under the Guidelines based on prior convictions for “crime[s] of violence” and a “controlled 

substance offense.” Id. at 521 (quoting U.S.S.G. § 2K2.1(a)(2)). Abdulaziz claimed that his 

prior conviction for possession of marijuana did not qualify as a controlled substance offense 

because Massachusetts had delisted hemp in the time between his prior offenses and the instant 

sentencing. The court held that the proper point of reference for defining a “controlled substance 

offense” is the drug schedules at the time of sentencing. Id. at 524. As in Bautista, the court 

determined that McNeill did not resolve the issue because it concerned itself only with 

ascertaining the elements of the state law of conviction as part of the first step of the categorical 

approach. Id. at 525–26. While McNeill clarified that “the elements of the state offense of 

conviction are locked in at the time of that conviction[,]” the First Circuit held that it does not 

necessarily follow that the criteria under the text of the enhancement for the current sentencing 

are also locked in at the time of the previous offense. Id. The court reasoned that “[a] 

guideline’s enhancement for a defendant’s past criminal conduct . . . is reasonably understood to 

be based in no small part on a judgment about how problematic that past conduct is when viewed 

as of the time of the sentencing itself.” Id. at 528. 

The Fourth Circuit agreed in United States v. Hope, 28 F.4th 487 (4th Cir. 2022). There, 

the defendant pled guilty to possessing a firearm and ammunition as a felon, and his sentence 

was enhanced under the ACCA based on prior convictions for possession of marijuana. Id. at 

492. Hemp had been delisted between his prior convictions and current sentencing. Id. at 498–

99. The court held that the categorical approach requires looking to the definition of a controlled 

substance at the time of the instant sentencing, so the current drug schedules are the proper 

reference. Id. at 504–05. Like the others, the Hope court limited McNeill’s holding to the 

context of a later change in state law for purposes of ascertaining the elements of the prior state 

law of conviction in the first step of the categorical approach. 

Most recently, the Eleventh Circuit forged a slightly different path in United States v. 

Jackson, 36 F.4th 1294 (11th Cir. 2022). There, the court enhanced defendant Jackson’s 

sentence under the ACCA for possession of a firearm. Id. at 1297–99. Jackson challenged the 
No. 21-6038 United States v. Clark Page 13

enhancement, arguing that his prior cocaine convictions were not “serious drug offense” 

predicates because the federal government delisted ioflupane (a substance derived from cocaine) 

from the Controlled Substances Act in 2015, prior to his instant offense. Id. at 1301–02. The 

court agreed, holding that “due-process fair-notice considerations” required it to “apply the 

version of the Controlled Substance Act Schedules in place when” Jackson committed the instant 

offense. Id. at 1297. The court distinguished McNeill in the same way the other circuits have, 

stating that the “question was not before the Court in McNeill.” Id. at 1306. 

These courts insufficiently grapple with the Supreme Court’s reasoning in McNeill. For 

example, the Ninth Circuit in Bautista reasoned that the “present-tense text” of 18 U.S.C. § 3553 

and U.S.S.G. § 1B1.11 dictate that the court should use a time-of-sentencing rule. Bautista, 989 

F.3d at 703. But the court in McNeill expressly rejected that rationale, stating that “[d]espite 

Congress’[s] use of present tense . . . we have turned to the version of state law that the 

defendant was actually convicted of violating.” McNeill, 563 U.S. at 821. That is because the 

present-tense argument “overlooks the fact that ACCA is concerned with convictions that have 

already occurred.” Id. at 820. The same is true with the Guideline at issue here. Further, the 

First Circuit in Abdulaziz reasoned that “[a] guideline’s enhancement for a defendant’s past 

criminal conduct . . . is reasonably understood to be based in no small part on a judgment about 

how problematic that past conduct is when viewed as of the time of the sentencing itself.” 998 

F.3d at 528. But McNeill reasoned the opposite—that “culpability and dangerousness” attach at 

the time of conviction. 563 U.S. at 823. Rather than contend with the Supreme Court’s 

reasoning in McNeill, these courts sought to cabin the opinion to the first step of the categorical 

approach and then used reasoning the Supreme Court rejected to justify their path. We decline to 

adopt this flawed reasoning. 

This court, too, considered the issue in an unpublished opinion, and—in dicta—declined 

to extend McNeill and Mallett. See Williams, 850 F. App’x at 401. In Williams, the district court 

enhanced defendant Williams’s sentence for a firearm offense based on a prior marijuana 

conviction, despite hemp having been delisted from the drug schedules federally and in 

Tennessee prior to sentencing. Id. at 394–95. A majority concluded that the sentencing court 

should look to the nature of the prior conviction under the law at the time of sentencing to define
No. 21-6038 United States v. Clark Page 14

a controlled substance. Id. at 401. Yet, because the defendant failed to properly preserve his 

objection, the plain error standard decided the issue. Id. at 402. Because this was an unsettled 

issue in the circuit, the district court’s error was not plain. Id.; see also, e.g., United States v. 

Perry, 2021 WL 3662443, at *3 (6th Cir. Aug. 18, 2021) (holding that there was no plain error 

on similar facts); United States v. Bradley, 2022 U.S. App. LEXIS 1096, at *14 (6th Cir. Jan. 13, 

2022) (same). 

The Williams majority reasoned that McNeill does not compel a contrary result because it 

only addressed the first prong of the categorical approach. 850 F. App’x at 399. But, once 

again, the majority did not fully engage the Supreme Court’s reasoning in McNeill. The McNeill 

Court ascertained the current definition of a statutory term: “serious drug offense.” It determined 

that the proper way to define that term is by referencing state law at the time of conviction. The 

Court could not have applied the enhancement without assessing all steps of the categorical 

approach, necessarily deciding that McNeill’s prior convictions did in fact constitute “serious 

drug offenses” under the meaning of the term in the current statute. Attempting to distinguish 

persuasive Supreme Court precedent, the Williams court draws too fine a line between the first 

and second steps of the categorical approach.

D.

Both parties claim that the other’s stance would create disparities in sentencing. Yet, the 

alleged disparities would exist in either scenario. If we adopt Clark’s rule, defendants who were 

convicted on the same day of the same conduct but sentenced one day before and one day after 

an amendment to the drug schedules, respectively, would face different penalties. Likewise, 

adopting the government’s rule, defendants who were convicted for the same conduct one day 

before and one day after an amendment to the drug schedules but who are later sentenced on the 

same day for the same federal offense would also face different penalties. The two rules do not 

exacerbate or ameliorate sentencing disparities, they merely shift the point at which the disparity 

originates.
No. 21-6038 United States v. Clark Page 15

E.

Finally, Clark argues that the Guidelines’ text is ambiguous so the rule of lenity should 

tip the scale in his favor. See United States v. Canelas-Amador, 837 F.3d 668, 674–75 (6th Cir. 

2016). But the rule of lenity plays “a very limited role,” applying “only when after seizing 

everything from which aid can be derived, the statute is still grievously ambiguous.” Wooden v. 

United States, 142 S. Ct. 1063, 1075 (2022) (Kavanaugh, J., concurring) (citation omitted); see 

also Ocasio v. United States, 578 U.S. 282, 295 n.8 (2016) (explaining that the rule of lenity 

applies only when there is a “grievous ambiguity or uncertainty” such that the court “can make 

no more than a guess as to what” was intended) (citation omitted). Because a reasoned 

interpretation of the text can be reached by “exhaust[ing] all the tools of statutory interpretation,” 

we need not rely on the rule of lenity here. Wooden, 142 S. Ct. at 1075 (Kavanaugh, J., 

concurring). Moreover, the interpretation we apply here also negates any concern about “fair 

notice.” See Jackson, 36 F.4th at 1300. Clark was on notice that his previous convictions were 

controlled substance offenses at the time he was convicted of them. And under the backwardlooking approach, he was on notice that those offenses could result in a greater sentence under 

the current Guidelines.

III.

Overall, Clark fails to raise any arguments that overcome a plain reading of the 

Guidelines’ text, as confirmed by the reasoning in McNeill and Mallett. Therefore, the district 

court properly enhanced Clark’s sentence under § 4B1.1(a) because courts must define the term 

“controlled substance offense” in the Guidelines with reference to the law in place at the time of 

the prior conviction at issue. For these reasons, we affirm the judgment of the district court.
No. 21-6038 United States v. Clark Page 16

_________________

CONCURRENCE

_________________

THAPAR, Circuit Judge, concurring. The majority properly employs the categorical 

approach, as it must. This case demonstrates, yet again, that the whole enterprise is a sham.

Start with what’s undisputed. All agree on the facts underlying Clark’s two 2014 

convictions. In the first instance, Clark was found with 532.7 grams of marijuana; in the second, 

123.8 grams of marijuana. Clark doesn’t argue—and nothing anywhere in the record suggests—

that a single gram was anything other than marijuana.

The categorical approach has us replace these undisputed facts with imaginary ones. In 

2014, the “least culpable conduct” the law proscribed was possession of hemp. So we must all 

pretend that Clark possessed hemp instead of marijuana. Of course, no one believes that. Even 

Clark can’t fully embrace the fiction: He says only that his convictions could have been for 

hemp—not that he actually possessed hemp. But under the categorical approach, what could 

have been is all that matters. Facts, even undisputed ones, are irrelevant.

It’s time to stop playing pretend. See Mathis v. United States, 579 U.S. 500, 536–44 

(2016) (Alito, J., dissenting). I hope, before long, Congress and the Sentencing Commission will 

eliminate the categorical approach and bring us all back to reality. See also United States v. 

Burris, 912 F.3d 386, 407–10 (6th Cir. 2019) (en banc) (Thapar, J., concurring); Lowe v. United 

States, 920 F.3d 414, 420 (6th Cir. 2019) (Thapar, J., concurring).