RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 19a0136p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RENERTO LAMAR MAYES,

Defendant-Appellant.

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No. 18-5902

Appeal from the United States District Court

for the Western District of Kentucky at Paducah.

No. 5:17-cr-00014-1—Thomas B. Russell, District Judge.

Decided and Filed: June 27, 2019

Before: WHITE, BUSH, and LARSEN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Christian J. Grostic, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for 

Appellant. L. Jay Gilbert, UNITED STATES ATTORNEY’S OFFICE, Louisville, Kentucky, 

for Appellee.

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OPINION

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HELENE N. WHITE, Circuit Judge. After a jury convicted defendant-appellant Renerto

Mayes of being a felon in possession of a firearm, the district court sentenced him to 180 

months’ imprisonment under the Armed Career Criminal Act (ACCA) based on five previous 

convictions for serious drug offenses under Kentucky law. Mayes appeals, arguing that because 

>
No. 18-5902 United States v. Mayes Page 2

the Kentucky legislature reduced the maximum penalty for three of his offenses from ten years to 

five years, the district court erred in sentencing him as an armed career criminal. We AFFIRM.

I. Background

Under the ACCA, a defendant who violates 18 U.S.C. § 922(g) and has “three previous 

convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions 

different from one another . . . shall be . . . imprisoned not less than fifteen years.” 18 U.S.C. 

§ 924(e)(1). A serious drug offense includes “an offense under State law, involving 

manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled 

substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by 

law.” 18 U.S.C. § 924(e)(2)(A)(ii).

Because at the time of sentencing each of Mayes’s five previous Kentucky convictions 

for trafficking cocaine carried a maximum prison term of ten years, the probation office 

determined the offenses qualified as “serious drug offense[s]” under the ACCA, 18 U.S.C. 

§ 924(e)(2)(A)(ii). Mayes objected to the PSR’s armed career criminal designation, asserting 

that the maximum ten-year sentence for his three 2006 offenses had been reduced to five years 

by the Kentucky legislature in 2011. As a result, Mayes argued, only two of his previous 

convictions qualified as serious drug offenses and the ACCA’s mandatory minimum sentence 

did not apply.

The district court rejected Mayes’s arguments, relying on McNeill v. United States, 

563 U.S. 816 (2011), which held that a court must consult the law that applied at the time of the 

previous conviction to determine whether that conviction qualifies as a serious drug offense 

within the meaning of ACCA. The district court determined that Mayes is an armed career 

criminal and sentenced him below the guidelines range to the fifteen-year statutory mandatory 

minimum term under the ACCA. Mayes now appeals.
No. 18-5902 United States v. Mayes Page 3

II. Discussion

A. Standard of Review and Applicable Law 

The court reviews de novo whether a prior conviction is a “serious drug offense” under 

the ACCA. United States v. Stafford, 721 F.3d 380, 395–96 (6th Cir. 2013).

To determine whether a particular offense qualifies as a serious drug offense, the court 

applies a “categorical approach,” which looks “only to the statutory definitions—i.e., the 

elements—of a defendant’s prior offenses, and not to the particular facts underlying those 

convictions.” Descamps v. United States, 570 U.S. 254, 261 (2013) (internal quotation marks 

and citation omitted). Further, the inquiry turns on the elements of the offense, and not the label 

state law places on it. Taylor v. United States, 495 U.S. 575, 588–89 (1990) (“Congress intended 

that the enhancement provision [of the ACCA] be triggered by crimes having certain specified 

elements, not by crimes that happened to be labeled ‘robbery’ or ‘burglary’ by the laws of the 

State of conviction.”). 

B. Analysis

In 2006, Mayes was convicted of three counts of trafficking cocaine, in violation of Ky. 

Rev. Stat. § 218A.1412(1) (2006). At the time, the statute stated that “[a] person is guilty of 

trafficking in a controlled substance in the first degree when he knowingly and unlawfully 

traffics in: a controlled substance, that is classified in Schedules I or II which is a narcotic drug.” 

Ky. Rev. Stat. § 218A.1412(1) (2006). The statute further stated that “[a]ny person who violates 

the provisions of subsection (1) of this section shall: [f]or the first offense be guilty of a Class C 

felony.” Ky. Rev. Stat. § 218A.1412(2)(a) (2006). Class C felonies were punishable by up to 

ten years in prison. Ky. Rev. Stat. § 532.060(2)(c) (2006).

In 2011, the Kentucky legislature amended the statute, reducing the maximum term of 

imprisonment from ten years to five years for offenses involving less than a certain quantity of 

controlled substances. The revised statute stated:
No. 18-5902 United States v. Mayes Page 4

(1) A person is guilty of trafficking in a controlled substance in the first degree when he 

or she knowingly and unlawfully traffics in:

(a) Four (4) grams or more of cocaine;

(b) Two (2) grams or more of methamphetamine;

(c) Ten (10) or more dosage units of a controlled substance that is classified 

in Schedules I or II and is a narcotic drug, or a controlled substance 

analogue;

(d) Any quantity of lysergic acid diethylamide; phencyclidine; gamma 

hydroxybutyric acid (GHB), including its salts, isomers, salts of isomers, 

and analogues; or flunitrazepam, including its salts, isomers, and salts of 

isomers; or

(e) Any quantity of a controlled substance specified in paragraph (a), (b), or 

(c) of this subsection in an amount less than the amounts specified in those 

paragraphs.

Ky. Rev. Stat. § 218A.1412(1) (2011). Mayes claims his three 2006 offenses fall within subsection (e).1

 The revised law further stated that “[a]ny person who violates the provisions of 

subsection (1)(e) of this section: [s]hall be guilty of a Class D felony for the first offense and a 

Class C felony for a second or subsequent offense.” Ky. Rev. Stat. § 532.060(2)(c) (2011). 

A Class D felony is punishable by a maximum term of imprisonment of five years. Id. at 

§ 532.060(2)(d).

Mayes admits that he has at least three Kentucky convictions for trafficking in a 

controlled substance. He also acknowledges that at the time of his 2006 convictions, these 

offenses subjected him to a ten-year maximum term of imprisonment. Nonetheless, Mayes 

argues that the Kentucky legislature’s reclassification of his 2006 offenses from Class C to Class 

D felonies—and reduction of the maximum term from ten years to five—applies to render his 

2006 convictions ineligible to serve as predicate offenses under the ACCA. In support, Mayes 

cites Kentucky’s retroactivity statute, Ky. Rev. Stat. § 446.110, which states: 

 

1At the time of his 2006 convictions, Ky. Rev. Stat. § 218A.1412 and Ky. Rev. Stat. § 532.060 did not 

distinguish between trafficking in different quantities of cocaine. Mayes asserted in his objections to the PSR, and 

asserts again on appeal, that each of his three 2006 offenses involved less than one gram of cocaine. Neither the 

probation office nor the government has disputed this claim. Thus, we assume for purposes of this appeal that 

Mayes falls within sub-section (e). 
No. 18-5902 United States v. Mayes Page 5

No new law shall be construed to repeal a former law as to any offense committed 

against a former law, nor as to any act done, or penalty, forfeiture or punishment 

incurred, or any right accrued or claim arising under the former law, or in any 

way whatever to affect any such offense or act so committed or done, or any 

penalty, forfeiture or punishment so incurred, or any right accrued or claim arising 

before the new law takes effect, except that the proceedings thereafter had shall 

conform, so far as practicable, to the laws in force at the time of such proceedings. 

If any penalty, forfeiture or punishment is mitigated by any provision of the new 

law, such provision may, by the consent of the party affected, be applied to any 

judgment pronounced after the new law takes effect.

Mayes asserts that the “limited retroactivity provision applies here” because his ACCA 

enhancement is “mitigated by [a] provision of [a] new law”—the 2011 amendments lowering the 

maximum penalties for selling less than four grams of cocaine—and his ACCA sentence is a 

“judgment pronounced after the new law takes effect.” (Appellant Br. at 6-7.) 

We disagree. In sentencing Mayes, the district court correctly concluded that Mayes’s 

argument is foreclosed by McNeill v. United States, 563 U.S. 816 (2011), which held that a 

federal sentencing court “must determine whether ‘an offense under State law’ is a ‘serious drug 

offense’ by consulting the ‘maximum term of imprisonment’ applicable to a defendant’s 

previous drug offense at the time of the defendant’s state conviction for that offense.” Id. at 825 

(citing § 924(e)(2)(A)(ii)). The Supreme Court explained that: 

It cannot be correct that subsequent changes in state law can erase an earlier 

conviction for ACCA purposes. A defendant’s history of criminal activity—and 

the culpability and dangerousness that such history demonstrates—does not cease 

to exist when a State reformulates its criminal statutes in a way that prevents 

precise translation of the old conviction into the new statutes. 

Id. at 823. However, the Court qualified its holding in a footnote: 

As the Government notes, this case does not concern a situation in which a State 

subsequently lowers the maximum penalty applicable to an offense and makes 

that reduction available to defendants previously convicted and sentenced for that 

offense. We do not address whether or under what circumstances a federal court 

could consider the effect of that state action.

Id. at 825 n.1.
No. 18-5902 United States v. Mayes Page 6

Mayes relies on this footnote together with the final sentence of Ky. Rev. Stat. 

§ 446.110—“[i]f any penalty, forfeiture or punishment is mitigated by any provision of the new 

law, such provision may, by the consent of the party affected, be applied to any judgment 

pronounced after the new law takes effect”—to argue that because the district court sentenced 

him as an armed career criminal in 2018, his judgment was “pronounced” after the new law took 

effect in 2011, and the new provisions apply. (Appellant Br. at 7, citing Ky. Rev. Stat. 

§ 446.110.) 

The problem with Mayes’s argument is that the Kentucky Supreme Court has held on at 

least two occasions that Ky. Rev. Stat. § 446.110 does not retroactively mitigate sentences that 

were “pronounced” before the legislature changed the law in 2011. See Rogers v. 

Commonwealth, 366 S.W.3d 446, 456 (Ky. 2012) (“Because [the revised penalty statute] had not 

gone into effect at the time the judgment against Rogers was pronounced, Rogers may not now 

invoke the new law’s penalty provisions.”); Conyers v. Commonwealth, 530 S.W.3d 413, 434 

(Ky. 2017) (stating that “the problem with Conyers’ reliance on [Ky. Rev. Stat. § 446.110] is that 

the judgment to which he wants to apply the new, ‘penalty-mitigating’ version of the statute—his 

2004 trafficking conviction—was pronounced some seven years before the new law took effect. 

The KRS 446.110 exception, by its own terms, does not apply in this situation.”) (citing Rogers, 

366 S.W. at 456). Thus, the Kentucky statute does not apply retroactively and McNeill controls. 

III. CONCLUSION

For the reasons above, we AFFIRM the district court’s application of the ACCA’s 

sentencing enhancement.