NOT RECOMMENDED FOR PUBLICATION File Name: 21a0156n.06 No. 19-6410 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Mar 25, 2021 UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) v. UNITED STATES DISTRICT ) COURT FOR THE EASTERN ) TONY DEWAYNE WILLIAMS, DISTRICT OF TENNESSEE ) ) Defendant-Appellant. OPINION ) BEFORE: MOORE, COOK, and STRANCH, Circuit Judges. JANE B. STRANCH, Circuit Judge. Tony DeWayne Williams was convicted of a Tennessee marijuana offense in 2015 and, in 2019, the federal offense of being a felon in possession of a firearm. At sentencing, the district court increased his base offense level because of the 2015 conviction, raising the low end of his Guidelines range by three years. Williams challenges the procedural reasonableness of that decision, arguing that the district court erred by counting the 2015 conviction as a “controlled substance offense” for purposes of USSG § 4B1.2. See Gall v. United States, 552 U.S. 38, 51 (2007) (holding that miscalculation of Guidelines range is “significant procedural error” constituting an abuse of discretion); Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016). Though we agree with Williams that his Guidelines range was miscalculated, because he has not satisfied the plain error review standard we must apply, we AFFIRM his sentence. No. 19-6410, United States v. Williams I. BACKGROUND On July 17, 2015, Williams was convicted of possession of marijuana for resale under Tenn. Code Ann. § 39-17-417(a)(4) (2014), a felony. At that time, Tennessee’s definition of “marijuana” included unlicensed hemp. Tenn. Code Ann. § 39-17-402(16) (2015); see also Rieves v. Town of Smyrna, 959 F.3d 678, 686 n.2 (6th Cir. 2020) (discussing the differences between “illegal marijuana” and hemp). On December 20, 2018, the Agricultural Improvement Act of 2018 was enacted, removing hemp from Schedule I’s list of controlled substances. Pub. L. No. 115-334, § 12619, 132 Stat. 4490, 5018 (codified at 21 U.S.C. § 812 (2018)). Consequently, the term “marihuana” in federal law explicitly excluded hemp as of December 21, 2018. 21 U.S.C. § 802(16) (2018). A few months later, Tennessee followed suit, removing hemp from its equivalent Schedule IV as of April 3, 2019, to comport with the federal definition of marijuana. 2019 Tenn. Pub. Acts ch. 87 (codified at Tenn. Code Ann. §§ 39-17-402(16)(c), -403(f)(1), -415, 43-27-101 (2019)); compare 7 U.S.C. § 1639o(1) (2018), with Tenn. Code Ann. § 43-27-101(3) (2019). Soon after, on July 11, 2019, Williams pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), stipulating that he knew he was a felon when he possessed the gun at issue. See Rehaif v. United States, 139 S. Ct. 2191, 2195–96 (2019). The Probation Office’s presentence report (PSR) calculated Williams’s Guidelines range by starting with a base offense level of 14, see USSG § 2K2.1(a)(6), and increasing it by six levels on the assumption that Williams had committed the offense “subsequent to sustaining one felony …
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