USA v. Jason Vashon Jones

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13442
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASON VASHON JONES,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:19-cr-00009-HL-TQL-1
____________________
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2 Opinion of the Court 22-13442
Before NEWSOM, G RANT , and ANDERSON , Circuit Judges.
PER CURIAM:
Jason Jones appeals his sentence of 151 months’ imprison-
ment for conspiracy to possess with intent to distribute a controlled
substance. On appeal, he argues that the district court erred in ap-
plying a career offender enhancement when calculating his guide-
line range, because a conspiracy conviction does not constitute a
“controlled substance offense” under U.S.S.G. § 4B1.2. The gov-
ernment concedes error on this issue in light of our decision in
United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc).
Jones also argues that his prior Georgia marijuana convictions do
not constitute “controlled substance offenses” because the Georgia
definition of “marijuana” is overbroad compared to the federal def-
inition. Jones further argues that his prior Georgia marijuana con-
victions are not “controlled substance offenses” under § 4B1.2 be-
cause the Georgia definition of marijuana included hemp at the
time of his convictions, while the federal definition at the time of
his sentencing for the instant offense excludes hemp.
I.
We review de novo a district court’s decision to classify a de-
fendant as a career offender pursuant to § 4B1.2. United States v.
Gibson, 434 F.3d 1234, 1243 (11th Cir. 2006). We are not bound by
a concession of law. United States v. Colston, 4 F.4th 1179, 1187 (11th
Cir. 2021). Likewise, we need not accept the government’s
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22-13442 Opinion of the Court 3
concession of error “when the law and record do not justify it.”
United States v. Linville, 228 F.3d 1330, 1331 n.2 (11th Cir. 2000).
The Sentencing Guidelines provide that
[a] defendant is a career offender if (1) the defendant
was at least [18] years old at the time the defendant
committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either
a crime of violence or a controlled substance offense;
and (3) the defendant has at least [2] prior felony con-
victions of either a crime of violence or a controlled
substance offense.
U.S.S.G. § 4B1.1(a). “Career offender” status warrants a set offense
level based on the statutory maximum of the underlying offense.
Id. § 4B1.1(b). In Dupree, we ruled that the text of § 4B1.2(b)—
which defines “controlled substance offense”—unambiguously ex-
cludes inchoate crimes, including conspiracy. Dupree, 57 F.4th at
1277-79 (vacating and remanding for resentencing without a career
offender enhancement, holding that conspiracy to possess with in-
tent to distribute heroin and cocaine was not a “controlled sub-
stance offense”). Moreover, Dupree overruled prior precedent of
this Court that relied on Application Note 1 of § 4B1.2 in holding
that a conspiracy offense can trigger a career offender enhance-
ment. Id. at 1279-80.
A defendant with a pending appeal is entitled to receive the
benefit of a change in the law by having any intervening law-chang-
ing decision applied retroactively to his case. See Griffith v. Ken-
tucky, 479 U.S. 314, 328 (1987).
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4 Opinion of the Court 22-13442
Here, the district court erred in applying a career offender
enhancement. We have stated explicitly that inchoate crimes, such
as Jones’s conspiracy conviction, are not “controlled substance of-
fenses” under § 4B1.2. Thus, because Jones’s instant conviction is
neither a “controlled substance offense” nor a “crime of violence,”
he is ineligible for career offender status under § 4B1.1(a). Lastly,
because Dupree provides a sufficient basis to vacate and remand in
this case, we do not address Jones’s arguments related his prior
Georgia state convictions. Accordingly, this we vacate Jones’s sen-
tence and remand for resentencing consistent with Dupree.
VACATED AND REMANDED.
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