United States of America v. Diante Turman

United States Court of Appeals
For the Eighth Circuit
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No. 21-3190
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United States of America
Plaintiff - Appellee
v.
Diante Turman
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: October 17, 2022
Filed: December 9, 2022
[Unpublished]
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Before SMITH, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
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PER CURIAM.
After Diante Turman pled guilty to one count of possession of cocaine base
with intent to distribute, in violation of 21 U.S.C. § 841, the district court1 sentenced
him to 120 months imprisonment, followed by 3 years of supervised release.
1 The Honorable Stephen R. Clark, United States District Judge for the Eastern
District of Missouri.

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-2-
Turman appeals, arguing that the district court erroneously applied the United States
Sentencing Guidelines (USSG) § 4B1.1 “career offender” provision in calculating
his Guidelines range. Having jurisdiction under 28 U.S.C. § 1291, we affirm.
Turman was indicted on five separate counts arising from the discovery of
significant amounts of crack cocaine, cocaine, and marijuana, as well as several
firearms in his vehicle and home. Turman entered a guilty plea to one count of
possession of cocaine base, and, at sentencing, the district court adopted the
Presentence Investigation Report (PSR) prepared by the United States Probation
Office. The PSR determined that Turman qualified as a career offender under USSG
§ 4B1.1(a), based on two previous convictions under Missouri law for a crime of
violence and, as relevant to this appeal, a controlled substance offense: possession
of marijuana with intent to distribute, in violation of Missouri Revised Statutes
§ 195.211 (2016). The district court ultimately calculated Turman’s total offense
level at 29, with a criminal history category of VI, resulting in a Guidelines range of
151 to 188 months imprisonment. The district court then varied downward and
imposed a sentence of 120 months. Finally, the district court dismissed the
remaining counts against Turman.
On appeal, Turman asserts that the district court erroneously applied the
career-offender provision because his previous marijuana conviction cannot qualify
as the requisite controlled substance offense. Specifically, Turman argues that, at
the time of his marijuana conviction, Missouri law defined marijuana to include
hemp, but both Missouri and federal law have since revised the definition of
marijuana to exclude hemp. According to Turman, a prior conviction must qualify
as a controlled substance offense under the Guidelines in effect at the time of the
federal sentencing, not at the time of the prior conviction, so his marijuana
conviction is categorically overbroad and cannot qualify as a controlled substances
offense. “We review de novo whether a prior conviction is a sentencing
enhancement predicate.” United States v. Henderson, 11 F.4th 713, 716 (8th Cir.
2021), cert. denied, 142 S. Ct. 1696 (2022).

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This Court has recently rejected similar claims regarding the delisting of hemp
as part of the definition of marijuana under other states’ statutes and federal law. In
United States v. Jackson, No. 20-3684, 2022 WL 303231 (8th Cir. Feb. 2, 2022) (per
curiam), cert. denied, No. 21-8127, 2022 WL 4653426 (Oct. 3, 2022), we stated the
following:
We determined in Henderson that U.S.S.G. § 4B1.2(b) contains “no
requirement that the particular substance underlying the state offense is
also controlled under [the CSA].” Instead, we agreed with the Fourth
Circuit’s interpretation that the “ordinary meaning of . . . ‘controlled
substance,’ is any type of drug whose manufacture, possession, and use
is regulated by law.” Jackson concedes he was convicted of delivering
and possessing with intent to deliver marijuana, a drug regulated by
Iowa law. Whether the statute additionally proscribed hemp within the
definition of marijuana is immaterial.
Attempting to distinguish Henderson, Jackson emphasizes that Iowa,
too, has removed hemp from its marijuana definition since his
convictions occurred. But we may not look to “current state law to
define a previous offense.” Jackson’s uncontested prior marijuana
convictions under the hemp-inclusive version of Iowa Code
§ 124.401(1)(d) categorically qualified as controlled substance offenses
for the career offender enhancement.
Id. at *1-2 (alterations in original) (citations omitted). Although Jackson was not
precedential, see 8th Cir. R. 32.1A, in United States v. Bailey, 37 F.4th 467 (8th Cir.
2022), we “adopt[ed Jackson’s] reasoning” in a published, precedential opinion. Id.
at 469. This reasoning is equally applicable to Turman’s claims. However Turman’s
argument may be construed, he does not meaningfully distinguish it from the
argument we considered and rejected in Jackson. We thus reject Turman’s claims
that his previous conviction was overbroad and could not serve as a basis for
application of the career offender provision.
For the foregoing reasons, we affirm the judgment of the district court.
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