United States of America v. Marquan Shaneal Tornes

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0405n.06
Case No. 22-1252
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARQUAN SHANEAL TORNES,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
MICHIGAN
OPINION
Before: KETHLEDGE, THAPAR, and MATHIS, Circuit Judges.
THAPAR, Circuit Judge. In 2022, a federal district court sentenced Marquan Tornes for
possessing a gun as a felon. See 18 U.S.C. § 922(g)(1). It enhanced his sentence because Tornes
had a prior “controlled substance offense”: a 2014 marijuana conviction in Michigan. See
U.S.S.G. § 2K2.1(a)(3). Tornes appeals, claiming the district court shouldn’t have enhanced his
sentence. We review that question de novo. United States v. Clark, 46 F.4th 404, 407 (6th Cir.
2022).
Tornes’s enhancement turns on the reference point for defining “controlled substance”
under the Sentencing Guidelines’ categorical approach. Tornes argues the correct point is the time
of his federal sentencing—here, 2022. If we use that time, his argument goes, the enhancement
won’t apply.

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Case No. 22-1252, United States v. Tornes
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That argument immediately faces a problem: we rejected it just last year in Clark. There,
we held that the proper reference point is the time of the predicate state conviction—here, 2014.
Id. at 408; see also United States v. Long, No. 22-6041, 2023 WL 5242509, at *1 (6th Cir. July
28, 2023). Because that’s the point the district court used, it correctly enhanced Tornes’s sentence.
Tornes acknowledges that Clark forecloses his argument and merely seeks to preserve it for en
banc review. He has.
Alternatively, Tornes asks us to hold this case until the Supreme Court decides two similar
cases involving a provision of the Armed Career Criminal Act (“ACCA”). See Jackson v. United
States, 143 S. Ct. 2457, 2457 (2023) (mem.); Brown v. United States, 143 S. Ct. 2458, 2458 (2023)
(mem.). We decline this invitation. The ACCA and the Sentencing Guidelines are different
enactments with different structures and purposes. That’s why “longstanding principles of
statutory interpretation allow different results under the Guidelines as opposed to under the
ACCA.” United States v. Jackson, 55 F.4th 846, 856 n.7 (11th Cir. 2022), cert. granted, 143 S.
Ct. at 2457; United States v. Brown, 47 F.4th 147, 154 (3d Cir. 2022) (citing Dorsey v. United
States, 567 U.S. 260, 291 (2012) (Scalia, J., dissenting)), cert. granted, 143 S. Ct. at 2458. So
even if we hold this case, it’s far from certain to make a difference. See Ne. Ohio Coal. for the
Homeless v. Husted, 831 F.3d 686, 720–21 (6th Cir. 2016) (intervening Supreme Court case must
be “directly applicable” for panel to disregard binding precedent). We don’t see the benefit in
waiting for the Court to address different cases involving different provisions.
We affirm.

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