United States v. Marquan Shaneal Tornes

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 14, 2023
• Docket: 22-1252
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0405n.06

Case No. 22-1252 FILED UNITED STATES COURT OF APPEALS Sep 14, 2023 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk

) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF MARQUAN SHANEAL TORNES, ) MICHIGAN Defendant-Appellant. ) ) 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. Case No. 22-1252, United States v. Tornes

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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