United States v. Wilkes, No. 22-1436 (6th Cir. 2023)
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Wilkes pleaded guilty as a felon in possession of a firearm, 18 U.S.C. 922(g)(1), 921(a), 924(a).
His prior convictions included four Michigan convictions for the delivery/manufacture of cocaine from 1995, 2006, and 2007. The district court accepted Wilkes’s plea and applied the 15-year mandatory minimum sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e).
Wilkes challenged the ACCA sentence, arguing that Michigan’s law includes ioflupane and federal law does not and that Michigan includes all the stereoisomers of cocaine, while federal law does not, so his prior convictions are not serious drug offenses. Wilkes also argued that the district court improperly overruled his objection to the inclusion of proffer-protected information in the PSR.
The Sixth Circuit affirmed a finding that federal law covers the same isomers of cocaine as Michigan law and the rejection of Wilkes’s objection to the inclusion of proffer-protected information as harmless error. The court retained jurisdiction over Wilkes’s challenge to his ACCA enhancement based on ioflupane, noting the Supreme Court’s 2023 grant of certiorari in “Jackson.” on the issue of “[w]hether the classification of a prior state conviction as a ‘serious drug offense’ under the [ACCA] depends on the federal controlled-substance schedules in effect at the time of the defendant’s prior state crime, the time of the federal offense for which he is being sentenced, or the time of his federal sentencing.”
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