Does McNeill require courts to define 'controlled substance offenses' under Section 4B1.2(b) to include convictions under laws encompassing substances no longer deemed criminal at the time of the current federal sentencing?

QUESTION PRESENTED Congress and the U.S. Sentencing Commission require judges to impose criminal sentences that take account of a penalty range advised by the Sentencing Guidelines Manual in effect on the date of sentencing. The Guidelines advise but do not mandate longer sentences if one has a prior conviction for a “Controlled Substance Offense,” (“CSO”) defined as “an offense under federal or state law .. . that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the possession of a controlled substance . .. with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. §4B1.2(b). Three Circuits hold that this definition incorporates federal or state schedules defining CSOs as of the date of the new federal sentencing. Ifa prior offense could have been based on a substance the same jurisdiction no longer deems criminal, it is not a CSO now. Other circuits hold that McNeill v. United States, 563 U.S. 816 (2011), requires courts to impose higher sentences for illegal gun possession based on prior drug offenses regardless of intervening amendments to the drug schedule. McNeill did not involve the Sentencing Guidelines or address the mandates requiring courts to apply the Guidelines Manual and definitions used therein in effect at the time of the new sentencing. The question presented here is: Does McNei/ require courts to define “controlled substance offenses” under Section 4B1.2(b) to include convictions under laws encompassing substances no longer deemed criminal at the time of the current federal sentencing?! ' This Court will decide a closely related question of whether McNeill requires courts to follow superseded drug schedules in identifying “serious drug offenses” under the Armed Career Criminal Act, 18 U.S.C. in Justin Brown v. United States, No. 22-6389, consolidated with Eugene Jackson v. United States, No. 22-6640. 2