United States of America v. Jacques Thron Marcus

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0376n.06
Case No. 21-6227
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JACQUES THRON MARCUS,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
TENNESSEE
OPINION
Before: McKEAGUE, THAPAR, and READLER, Circuit Judges.
THAPAR, Circuit Judge. Jacques Marcus pled guilty to being a felon in possession of a
firearm. Since he had a previous Tennessee conviction for possessing marijuana with intent to
sell, the district court enhanced his sentence. Marcus appeals and claims that his Tennessee
marijuana conviction does not qualify as a “controlled substance offense,” and thus, the
enhancement was improper. See Tenn. Code Ann. § 39-17-417(a); U.S.S.G. § 2K2.1(a)(4)(A).
Applying the categorical approach, as we must, we compare the state statute of conviction
with the conduct criminalized under the Guidelines. United States v. Garth, 965 F.3d 493, 495
(6th Cir. 2020). “[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” for the
enhancement. Id. Marcus benefits from our presuming that his marijuana conviction was for

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Case No. 21-6227, United States v. Marcus
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possession of hemp—the “least culpable conduct” proscribed. See United States v. Clark, __ F.
4th __, 2022 WL 3500188, *2 (6th Cir. Aug. 18, 2022).
Here, timing is everything. In 2017, when Marcus was convicted in state court, hemp was
a controlled substance under both state and federal law. But by 2021, when Marcus was sentenced
in federal court, both the state and federal drug schedules delisted hemp. See id. The dispositive
question here is which law governs: Do we define “controlled substance” by reference to the law
in place at the time of Marcus’s state-court conviction, or by reference to the law in place at the
time of his federal-court sentencing? If we follow a time-of-conviction rule, Marcus loses; if a
time-of-sentencing rule, he wins.
We answered this precise question in United States v. Clark, adopting a time-of-conviction
rule. See id. at *8. That resolves this case. Because hemp was a controlled substance at the time
of Marcus’s Tennessee marijuana conviction, that conviction is categorically a controlled-
substance offense under the Guidelines. Id. at *2. Thus, the district court correctly applied
U.S.S.G § 2K2.1(a)(4)(A).
AFFIRMED.

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