Sentencing; “Career-offender” enhancement (USSG § 4B1.1); Whether a prior drug conviction involving hemp could trigger the enhancement; “Time-of-conviction” rule; § 4B1.2; United States v Clark; Brown v United States; Substantive reasonableness challenge; Deference to a district court’s conclusions about the 18 USC § 3553(a) factors that matter most in a case; Appellate presumption of reasonableness for a within-Guidelines sentence

The court affirmed defendant-Drake’s 200-month drug-crime sentence, holding that the district court properly applied the “career offender” enhancement pursuant to the time-of-conviction rule. Drake was convicted of several drug offenses. His 200-month sentence was in the bottom half of his Guidelines range. It included a career-offender enhancement based on his prior marijuana conviction. Drake argued that this prior conviction was not the type of offense that could trigger the enhancement. The court noted that in determining “whether a state drug crime qualifies as a ‘controlled substance offense’ under § 4B1.2(b)’s definition, we apply the ‘categorical approach.’” In this case, a hypothetical defendant could have committed the state crime in question “by distributing hemp because Ohio’s definition of ‘marijuana’ included that substance back in 2016.” Thus, the court had to determine “whether this hemp crime falls within § 4B1.2’s definition of ‘controlled substance offense.’” This in turn depended “on the time that matters for § 4B1.2’s definition.” Drake asserted a time-of-sentencing approach applied, which “asks whether all the substances that could have supported his 2016 marijuana offense would fall within the federal and state drug schedules as they existed in 2023 when the district court sentenced him.” But the court previously held in Clark “that § 4B1.2 adopted a time-of-conviction rule[,]” which takes an “approach that asks whether all the substances that could have supported Drake’s state-law offense would have fallen within the federal and state drug schedules as they existed in 2016 at the time of his prior crime.” The court disagreed that the intervening Supreme Court decision in Brown required a different result, finding that “Brown’s footnote does not permit us to depart from Clark.” It also rejected Drake’s substantive reasonableness challenge to his sentence. The court deferred to the district court’s determinations as to which § 3553(a) factors mattered most here. And he failed to overcome the presumption of reasonableness given to his within-Guidelines sentence.