UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. TEDRIC LEMAY SMITH, Defendant - Appellant. No. 21-6012 (D.C. No. 5:19- CR-00412-F-1) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , CARSON , and ROSSMAN , Circuit Judges.

________________ _________________ Tedric Lemay Smith pled gu ilty to one count of being a felon in possession of a firearm and ammunition in viola tion of 18 U.S.C. § 922(g)(1). He was sentenced to 70 months in prison to be followed by th ree years of supervised release. On appeal, he challenges his sentence, arguing the district court erred when it found that his two prior Oklahoma drug convi ctions qualified as “controlled substance offenses” under United States Sentencing Guide line § 4B1.2(b). The issue he presents is

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 3, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-6012 Document: 010110762817 Date Filed: 11/03/2022 Page: 12 “Whether the definition of a ‘controlled su bstance offense’ in U.S.S.G. § 4B1.2(b) requires the substance to be federally controlled.” Aplt. Br. at 2. This appeal was previously abated pending this court’s decision in United States v. Patrick Jones , No. 20-6112, which raised the same issue presented by this appeal.

 On October 19, 2021, this c ourt entered a decision in favor of the government in Patrick Jones . It held that the definition of a “controlled substance offense” in U.S.S.G. § 4B1.2(b) does not require th e substance to be federally controlled.

 On May 9, 2022, this c ourt denied Mr. Jones’s pe tition for rehearing and the petition for rehearing en banc.

 On October 3, 2022, the Supreme Court denied a petition for writ of certiorari. United States v. Patrick Jones , 15 F.4th 1288 (10th Cir. 2021); pet. for reh’g denied , 32 F.4th 1290 (10th Cir. 2021); cert. denied , 22-5342, 2022 WL 4657048 (U.S. Oct. 3, 2022). On October 11, 2022, this court asked the parties to file written responses addressing the status of furthe r proceedings in this appeal in light of the denial of certiorari in Patrick Jones . In response,

 Mr. Smith said: “Mr. Smith conc edes this Court’s decision in Jones and the Supreme Court’s subsequent denial of a petit ion for writ of certiorari in that matter forecloses Mr. Smith’s ar gument in this appeal.”

 The Government said: “[T]he decision in [ Patrick Jones ] is dispositive of the sole issue presented in this appeal, [and] the deni al of certiorari in that case forecloses any further proceedings.” Appellate Case: 21-6012 Document: 010110762817 Date Filed: 11/03/2022 Page: 23 Based on the decision in Patrick Jones and the parties’ foregoing responses, we affirm the district court’ s judgment and sentence. We di rect the Clerk’s Office to vacate oral argument set for November 18, 2022.

Entered for the Court

Per Curiam Appellate Case: 21-6012 Document: 010110762817 Date Filed: 11/03/2022 Page: 321-6012, United States v. Smith ROSSMAN , J., concurring. This appeal asks whether the definiti on of a “controlled substance offense” in U.S.S.G. § 4B1.2(b) requires the substance to be federally controlled. The panel’s decision in United States v. Jones , 15 F.4th 1288 (10th Cir. 2021), answered that question in our circuit. Invoking plain-language analysis, the Jones panel concluded a “controlled substance offense” in § 4B1.2(b) is not lim ited to federally controlled substances but includes substances controlled by state law. As the partie s acknowledge, that holding compels affirmance here. While I must concur in the disposition, I write separately to respectfully voice my continued disagreement with Jones

. See United States v. Jones , 15 F.4th 1288 (10th Cir. 2021), reh’g denied , 32 F.4th 1290 (10th Cir. 2 022) (Rossman, J., dissenting). Jones cannot be squared with the purpose of the Guidelines; the categorical approach; the longstanding requirement of national unifo rmity in federal sentencing law; and the presumption that federal, not state, standa rds define federal sentencing provisions. Not surprisingly, as demonstrated by this case and others like it, the issue in Jones recurs regularly—and so does our mistaken resolution of it. 1

1 A survey of case law in our circu it reveals the widespread impact of Jones

. See United States v. Mask , No. 21-6076, 2022 WL 3041102, at *1 (10th Cir. Aug. 2, 2022) (“Petitioner recognizes our holding in [ Jones ] forecloses his argument, but appeals ‘[i]n the event the law changes.’”); United States v. Babcock , 40 F.4th 1172, 1176 n.2 (10th Cir. 2022) (“Defendant concedes that this argument has since been resolved to the contrary in [ Jones ], which held that the guidelines do not limit controlled substances to only those substances so de fined under federal law.”); United States v. Blattel , No. 21-8018, 2022 WL 2062461, at *2 n.1 (10th Cir. June 8, 2022) (“Mr. Blattel concedes that this issue is now for eclosed by our decision in [ Jones ], which was filed shortly after Appellate Case: 21-6012 Document: 010110762817 Date Filed: 11/03/2022 Page: 42 The circuits remain divided on th e consequential que stion decided in Jones , 2 resulting in significant and unwarranted sent encing disparities base d essentially on the

his opening brief.”); United States v. Nichols , No. 20-6198, 2022 WL 1569129, at *3 (10th Cir. May 18, 2022) (“We first reject Nichols’s argument that the definition of ‘controlled substance’ in U.S.S.G. § 4B1.2 is limited to the federal definition in the Controlled Substances Act (CSA), and ther efore his Oklahoma convictions did not qualify as predicate offenses to enhance his base offense level under U.S.S.G. § 2K2.1(a)(2). That argument is forecl osed by our rece nt decision in [ Jones ].”), cert. denied , No. 22-5427, 2022 WL 6572997 (U.S. Oct. 11, 2022); United States v. Russey , No. 20-6036, 2021 WL 4979819, at *3 (10th Cir. Oct. 27, 2021) (“This court has recently rejected the argument that a prior state drug offense onl y qualifies as a controlled substance offense under § 4B1.2(b) if th e state criminalizes the same controlled substances identified in the CSA.”), cert. denied , No. 22-5461, 2022 WL 6573175 (U.S. Oct. 11, 2022); United States v. Ritchie , No. 20-6069, 2021 WL 4889801, at *1 (10th Cir. Oct. 20, 2021) (“Unfortunately for Defendant, our recent decision in [ Jones ] forecloses his argument.”), cert. denied sub nom. Russey v. United States , No. 22-5461, 2022 WL 6573175 (U.S. Oc t. 11, 2022); see also United States v. Brown , No. CR-20-277-G, 2021 WL 5980774, at *3 (W.D. Ok la. Dec. 16, 2021) (“Defendant’s position therefore is foreclosed by Jones

. The Court overrules Defendant’s objection and finds that Defendant’s conviction in Carter County Dist rict Court Case No. CF-2007-108 satisfies the criteria of U.S.S.G. § 4B1.2(b) and is a prior felony conviction of ‘a controlled substance offense’ within the mean ing of U.S.S.G. § 2K2.1(a)(2).”).

2 In Jones , our court joined th e Fourth, Seventh, Eighth, and Eleventh Circuits in holding the definition of “controlled substance” can in clude those substances controlled either by federal or state law. See United States v. Ward , 972 F.3d 364, 372 (4th Cir. 2020); United States v. Ruth , 966 F.3d 642, 654 (7th Cir. 2020); United States v. Henderson , 11 F.4th 713, 718 (8th Cir. 2021); United States v. Howard , 767 F. App’x 779, 784 n.5 (11th Cir. 2019) (unpublished). But in the Second, Fift h, and Ninth Circuits , “controlled substance” refers only to substances defined under federal law. See United States v. Townsend , 897 F.3d 66, 70-72 (2d Cir. 2018); United States v. Gomez-Alvarez , 781 F.3d 787, 793-94 (5th Cir. 2015); United States v. Bautista , 989 F.3d 698, 702 (9th Cir. 2021). The Sixth Circuit has been on both sides of this issue. Compare United States v. Pittman , 736 F. App’x 551, 553 (6th Cir. 2018) (unpublished) (finding the term “controlled substance” in U.S.S.G. § 4B1.2(b) to be defined by the Controlled Substances Act), with United States v. Smith , 681 F. App’x 483, 489 (6th Cir. 2017) (unpublished) (“[T]here is no requirement that the particular controlled subs tance underlying a state conviction also be controlled by the federal government . . . .”). Appellate Case: 21-6012 Document: 010110762817 Date Filed: 11/03/2022 Page: 53 location of the sentencing court. Yet the Supr eme Court, practicing a sort of sentencingguidelines abstention, has refused to weigh in. 3
Since this court denied en banc rehearing in Jones , the Senate confirmed a full slate of bipartisan Commissioners, allowing the Sentencing Commission to operate with a quorum for the first time in several years. Press Release, Acting Chair Judge Charles Breyer, Incoming Chair Judge Ca rlton W. Reeves Applaud Se nate Confirmation of New
Commissioners , U.S. Sentencing Commission (Aug. 5, 2022), https://www.ussc.gov/about/n ews/press-releases/august- 5-2022. Among its policy priorities for the next amendment cycle, the Sentencing Commi ssion has identified “[c]ontinuation of its multiyear work on § 4B1.2.” See Proposed Priorities for Amendment Cycle, 87 Fed. Reg. 60,438 (Oct. 5, 2022). The Sentencing Commission hopefully will address the meaning of a “contr olled substance offense” in § 4B1.2(b) and clarify federal law supplies the definition to a federal sentencing enhancement.

3 The Supreme Court denied certiorari in Jones

. United States v. Jones , 15 F.4th 1288 (10th Cir. 2021), cert. denied , No. 22-5342, 2022 WL 4657048 (U.S. Oct. 3, 2022). In several of the subsequent cases foreclosed by Jones , certiorari was also sought and denied. See supra note 1. Appellate Case: 21-6012 Document: 010110762817 Date Filed: 11/03/2022 Page: 6