Does McNeill require courts to define 'controlled substance' under § 4B1.2 of the federal sentencing guidelines by consulting superseded state schedules that had been in effect at the time of a prior state conviction?

QUESTION PRESENTED Sections 4B1.1 and 4B1.2 of the federal sentencing guidelines recommend additional punishment for “career offenders.” Certain types of prior state drug convictions may trigger this enhancement if they involved a “controlled substance.” The relevant guidelines provisions do not define “controlled substance,” and instead borrow the meaning of that term from state law. Congress and the U.S. Sentencing Commission require courts to apply the law in effect as of the date of the federal sentencing when calculating the guidelines range. Despite this directive, the Eighth Circuit interprets “controlled substance” to include substances that the state does not control. So here, the sentencing court increased Petitioner’s guidelines range by more than a decade because of two prior Missouri convictions that encompassed a substance Missouri has not controlled for years. The Eighth Circuit believes this Court’s decision in McNeill v. United States, 563 U.S. 816 (2011) compels this result. The question presented is: Does McNeill require courts to define “controlled substance” under § 4B1.2 of the federal sentencing guidelines by consulting superseded state schedules that had been in effect at the time of a prior state conviction?! 1 This Court has granted a petition for a writ of certiorari in case no. 22-6640 (now consolidated with case no. 22-6389) on the closely related question of whether McNeill requires courts to consult superseded schedules to determine if a conviction qualifies as a “serious drug offense” under the Armed Career Criminal Act, 18 U.S.C. §924(e). Petitioner respectfully requests that the Court hold this petition pending a decision in consolidated case nos. 22-6389 and 22-6640. Petitioner is also aware of a similar request in case no. 22-3224. i