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 guilty to one count of being a felon in possession of a 

firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 70 

months in prison to be followed by three years of supervised release. 

On appeal, he challenges his sentence, arguing the district court erred when it 

found that his two prior Oklahoma drug convictions qualified as “controlled substance 

offenses” under United States Sentencing Guideline § 4B1.2(b). The issue he presents is 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive 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

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“Whether the definition of a ‘controlled substance 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 court 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 the substance to be federally controlled. 

 On May 9, 2022, this court denied Mr. Jones’s petition 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 further proceedings in this appeal in light of the denial of 

certiorari in Patrick Jones. In response, 

 Mr. Smith said: “Mr. Smith concedes this Court’s decision in Jones and the 

Supreme Court’s subsequent denial of a petition for writ of certiorari in that matter 

forecloses Mr. Smith’s argument in this appeal.” 

 The Government said: “[T]he decision in [Patrick Jones] is dispositive of the sole 

issue presented in this appeal, [and] the denial of certiorari in that case forecloses 

any further proceedings.” 

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Based on the decision in Patrick Jones and the parties’ foregoing responses, 

we affirm the district court’s judgment and sentence. We direct the Clerk’s Office to 

vacate oral argument set for November 18, 2022. 

Entered for the Court 

Per Curiam 

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21-6012, United States v. Smith 

ROSSMAN, J., concurring. 

This appeal asks whether the definition 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 limited to federally controlled substances but 

includes substances controlled by state law. As the parties 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. 2022) (Rossman, J., dissenting). Jones 

cannot be squared with the purpose of the Guidelines; the categorical approach; the 

longstanding requirement of national uniformity in federal sentencing law; and the 

presumption that federal, not state, standards 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 circuit 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 defined 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 foreclosed by our decision in [Jones], which was filed shortly after 

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The circuits remain divided on the consequential question decided in Jones,

2

resulting in significant and unwarranted sentencing disparities based 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 therefore 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 foreclosed by our recent 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 only qualifies as a controlled 

substance offense under § 4B1.2(b) if the 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. Oct. 11, 2022); see also United States v. Brown, No. CR-20-277-G, 2021 

WL 5980774, at *3 (W.D. Okla. 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 District 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 meaning of U.S.S.G. § 2K2.1(a)(2).”). 

2

 In Jones, our court joined the Fourth, Seventh, Eighth, and Eleventh Circuits in holding 

the definition of “controlled substance” can include 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, Fifth, 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 substance underlying a state conviction also be 

controlled by the federal government . . . .”). 

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location of the sentencing court. Yet the Supreme 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 Carlton W. Reeves Applaud Senate Confirmation of New 

Commissioners, U.S. Sentencing Commission (Aug. 5, 2022), 

https://www.ussc.gov/about/news/press-releases/august-5-2022. Among its policy 

priorities for the next amendment cycle, the Sentencing Commission 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 “controlled 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. 

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