Whether the definition of 'controlled substance offense' in U.S.S.G. § 4B1.2(b) should be interpreted according to federal standards or permits application of varying state law standards, and whether the Jerome presumption requires resolution of this circuit split in favor of federal standards

in this petition for certiorari — the meaning of “controlled substance offense” in U.S.S.G. § 4B1.2(b). See Guerrant v. United States, 142 S.Ct. 640, 641 (2022) (Statement of Sotomayor, J., and Barrett, J., respecting denial of certiorari). The circuit split is still causing defendants like petitioner to be “subject to far higher terms of imprisonment for the same offenses as compared to defendants similarly situated” based solely on the happenstance of geography. Jd. Approximately 18 months ago, in January 2022, this Court implored that it was the “responsibility of the Sentencing Commission” to resolve this circuit split. Jd. But the Sentencing Commission still hasn’t done its job, and it is unclear if and when it will. 4. The Eighth Circuit has incorrectly held that because the definition 0 of “controlled substance offense” in U.S.S.G. § 4B1.2(b) begins with the phrase "[a]n offense under federal or state law," this means that any such offenses qualify. United States v. Henderson, 11 F.4th 713, 718-19 (8th Cir. 2021). This is wrong, as pointed out by the Second Circuit, because “to do so would undermine the presumption that federal standards define federal sentencing provisions.” United States v. Townsend, 897 F.3d 66, 70-71 (2nd Cir. 2018). Id. “Because the Guidelines presume the application of federal standards unless they explicitly provide otherwise, the ambiguity in defining ‘controlled substance’ must be resolved according to federal—not state—standards.” Id. When interpreting the Guidelines, which “represent the Federal Government’s authoritative view of the appropriate sentence for specific crimes,” Peugh v. United States, 569 U.S. 530, 545 (2013), this Court “must generally assume, in the absence of a plain indication to the contrary, that” their application does not “depend[ ] on state law.” Jerome v. United States, 318 U.S. 101, 104 (1943). The Jerome presumption should be applied to resolve this circuit split. 5. Mr. Robinson timely sought rehearing or rehearing en banc, seeking reconsideration of the same question presented here. The Eighth Circuit denied rehearing by the panel, and rehearing en banc. See Exhibit B. 6. Petitioner respectfully requests an extension of time to file a petition for a writ of certiorari. Undersigned counsel has a number of pending matters with proximate due dates that will interfere with counsel’s ability to file the petition on or before August 14, 2023. Specifically, in August, counsel currently has two pending brief deadlines in the Eighth Circuit Court of Appeals: United States v. Hardin, 232576 (due on August 9) in United States v. Taylor (due August 23). Counsel also has a variety of other pending deadlines in the United States District Court for the Western District of Missouri. Wherefore, Petitioner respectfully requests that an order be entered extending the time to file a petition for a writ of certiorari to and including October 12, 2023. Respectfully submitted, LAINE CARDARELLA Federal Public Defender Western District of Missouri /s/ Daniel P. Goldberg Daniel P. Goldberg Counsel of Record 1000 Walnut, Suite 600 Kansas City, Missouri 64106 Tel: (816) 471-8282 Dan Goldberg@fd.org Counsel for Petitioner EXHIBIT A UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No: 22-3646 United States of America Plaintiff Appellee v. Tyrone Robinson, also known as Tyrone R. Robinson Defendant Appellant Appeal from U.S. District Court for the Western District of Missouri Kansas City JUDGMENT Before SHEPHERD, GRASZ, and KOBES, Circuit Judges. The Appellee’s Motion for Summary Affirmance and Appellant’s Response have been considered by the court, and the motion for summary affirmance is granted. The district court’s judgment is affirmed. March 31, 2023 Order Entered at the Direction of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit. /s/ Michael E. Gans Appellate Case: 22-3646 Page: 1 Date Filed: 03/31/2023 Entry ID: 5260794 EXHIBIT B UNITED STATES COURT OF APPEALS FOR TH