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United States v. Harbin.

No. 21-8038. 12/27/2022. D.Wyo. Judge Murphy. US Sentencing Guidelines—Career Offender—Controlled Substance—Clear or Obvious Error.

December 26, 2022


Harbin pleaded guilty to various drug and firearm offenses. The district court enhanced his sentence under US Sentencing Guideline (USSG) § 4B1.1 based, in part, on his prior Wyoming conviction for possession of marijuana with intent to deliver.

On appeal, Harbin argued that the district court plainly erred by enhancing his sentence under USSG § 4B1.1 because the term “controlled substance” in the guideline must be defined by reference to the state’s controlled-substance law at the time of the federal sentencing. He maintained that when he was convicted in Wyoming, that state’s marijuana definition included hemp but at the time of his federal sentencing, that definition excluded hemp, so his prior conviction no longer qualifies as a prior controlled-substance conviction under §§ 4B1.1 and 4B1.2(b). USSG § 4B1.1 provides that a defendant with at least two prior felony convictions of either a crime of violence or a controlled substance offense is a career offender. USSG § 4B1.2(b) defines a controlled-substance offense as a state law offense that prohibits the possession of a controlled substance “with intent to manufacture, import, export, distribute, or dispense.” In support of his argument, Harbin cited cases from other circuits and a recent Tenth Circuit decision involving an Armed Career Criminal Act enhancement. However, the recent Tenth Circuit decision did not resolve whether a prior state drug conviction should be defined by reference to current rather than former state law, the only published opinions to consider this specific issue have rejected Harbin’s position, and the US Supreme Court has not directly addressed this issue. Further, the USSG language does not clearly and obviously support Harbin’s position. Accordingly, Harbin did not satisfy his burden of demonstrating a clear or obvious error in the district court’s application of the enhancement.

The sentencing decision was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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