Petition for Writ of Certiorari — Tommy Lee Hubbard, Jr., Petitioner v. United States

NO.

____________

IN THE UNITED STATES SUPREME COURT

______________________________________________________________________

TOMMY LEE HUBBARD, JR.,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

______________________________________________________________________

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

__________________________________________________________

Erin P. Rust

Assistant Federal Defender

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

835 Georgia Avenue, Suite 600

Chattanooga, Tennessee 37402

(423) 756-4349

Attorney for Mr. Tommy Hubbard

QUESTIONS PRESENTED FOR REVIEW

By April of 2019 both the state of Tennessee and the federal government excluded low-THC

(delta-9 tetrahydrocannabinol) marijuana from the definition of illegal “marijuana” as a

controlled substance. That resulted in the proliferation of legal, low-THC marijuana products

(often termed “hemp” by statute), which look, smell, and function the same as the illegal, highTHC variant of the same plant.

The question presented here is:

Can the federal courts rely exclusively upon circumstantial evidence to decide that a marijuana

substance is illegal, when the circumstances surrounding use of illegal marijuana are identical

to the circumstances surrounding use of legal marijuana?

ii

PARTIES TO THE PROCEEDINGS

All parties appear in the caption of the case on the cover page.

RELATED CASES

There are no related cases.

All relevant opinions below are included in the Appendix filed herewith.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ........................................................................... ii

PARTIES TO THE PROCEEDINGS ................................................................................... iii

RELATED CASES................................................................................................................ iii

TABLE OF CONTENTS .......................................................................................................iv

TABLE OF AUTHORITIES ................................................................................................... v

OPINIONS BELOW ............................................................................................................... 1

JURISDICTIONAL STATEMENT ........................................................................................ 2

PRAYER FOR RELIEF……………………………………………………………………...3

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .............................. 3

STATEMENT OF THE CASE AND FACTS ...................................................................... 4

REASONS FOR GRANTING OF THE WRIT .................................................................... 6

I. The Sixth Circuit’s approach is wrong…………………………..………………………..6

A. The physical characteristics and method of use of legal and illegal marijuana

make the two substances indistinguishable absent a lab test………………………….….6

B. The Sixth Circuit’s test for determining the illegality of a substance through

circumstantial evidence does not work in the context of legal versus illegal

marijuana………………………………………………………………………………….7

II. This is a widespread and consistently recurring question of exceptional

importance…………………………………………………………………………......12

CONCLUSION ................................................................................................................ …14

iv

TABLE OF AUTHORITIES

Page

Federal Court Cases:

Molina-Martinez v. United States, 578 U.S. 189 (2016)……………………………...………4

United States v. Malone, 846 F. App’x 355 (6th Cir. 2021)……………………….………….5

United States v. Schrock, 855 F.2d 327 (6th Cir. 1988)………………………..………..……5

United States v. Scott, 725 F.2d 43 (4th Cir. 1984)…………………………….…..………7-8

United States v. Swift, 276 F. App’x 439 (6th Cir. 2008)………………………….………….5

United States v. Thomas, 939 F.3d 1121 (10th Cir. 2019)…………………………….……..10

United States v. Wright, 16 F.3d 1429 (6th Cir. 1994)…………………………..…..……..7-8

Federal Statutes:

7 U.S.C. § 1639o(1)…………………………………...………………..………………….3, 6

18 U.S.C. § 922(g)(1)……………………………………………..………………………..2, 4

21 U.S.C. § 802(7)…………………………………………………………………………..10

21 U.S.C. § 802(16)…………………………………………………………………………..6

21 U.S.C. § 802(16)(A)……………………………...……………………………………….3

21 U.S.C. § 802(16)(B)(i)……………………………...………………….………………….3

21 U.S.C. § 812……………………………………………………………...………………..6

21 U.S.C. § 841(a)(1)……………………………………...……………...…………………..6

21 U.S.C. § 841(d)………………………………………………………………..…………..6

28 U.S.C. § 1254(1)…………………………………………………………..………………2

v

State Statutes:

Tenn. Code Ann. § 39-17-402(16)(A)……………………………..……...………………….3

Tenn. Code Ann. § 39-17-402(16)(C)……………………………….....………………….3, 6

Tenn. Code Ann. § 39-17-403(f)(1)………………………..……………...………………….6

Tenn. Code Ann. § 39-17-415(a)(1)……………………….………………………………..12

Tenn. Code Ann. § 39-17-417(a)(4)……………………………...……………..……………6

Tenn. Code Ann. § 39-17-417(g)(1)……………………………...…………………..………6

Tenn. Code Ann. § 39-17-423(a)(3)…………………………….……………….………10, 12

Tenn. Code Ann. § 43-27-101(3)……………………………………………..……………3, 6

Rules:

Supreme Court Rule 13………………………………………..…….………………………..2

Supreme Court Rule 29.4…………………………..………...……………………………….2

Sentencing Guidelines:

U.S.S.G. § 2K2.1………………………………….………………………………….………4

U.S.S.G. § 2K2.1(b)(6)(B)…………………….………………………….………………4, 12

Other Sources:

Megan Brenan, Gallup, Wellbeing, “14% of American Say They Use CBD Products”

(Aug. 7, 2019) ........................................................................................................9, 13

Sian Ferguson, Hemp vs. Marijuana: What’s the Difference?,

Healthline (Aug. 27, 2020)....................................................................................... 6-7

Merriam-Webster, “Marijuana” .............................................................................................11

Merriam-Webster, “Speed” ....................................................................................................11

vi

Merriam-Webster, “Weed” ....................................................................................................11

Sentencing Commission, Use of Guidelines and Specific Offense Characteristics,

Guideline Calculation Based at 131 (Fiscal Year 2021) ............................................12

Tenn. Comp. R. & Regs. 0080-06-28-.07 (2021) ..................................................................10

TN Dept. of Agriculture, Resources for Producers,

“Hemp FAQ—Do I need a license to sell hemp flower or oil?” ...............................10

United States Census Bureau, U.S. and World

Population Clock (June 22, 2023) ..............................................................................13

vii

OPINIONS BELOW

United States v. Hubbard, Opinion and Judgment, No. 21-6219, Doc. 49-2

(6th Cir. Jan. 19, 2023)…..……………………………………………..…….............1a-9a

United States v. Hubbard, Sentencing Judgment, 1:21-cr-47, R. 31,

(E.D. Tenn. Dec. 9, 2021)………………………………………….…....................11a-17a

1

JURISDICTIONAL STATEMENT

Tommy Hubbard was sentenced to serve 60 months of imprisonment for being a felon

in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1). That sentence was enhanced

based on the district court’s conclusion that Mr. Hubbard also possessed illegal marijuana. Mr.

Hubbard filed a timely notice of appeal from that judgment on December 21, 2021, and the

United States Court of Appeals for the Sixth Circuit affirmed his sentence on January 19, 2023.

This Court's jurisdiction is invoked under 28 U.S.C. § 1254(1). Pursuant to Rule 13 of

the Supreme Court the time for filing a petition for certiorari review is 90 days from the

judgment of the Court of Appeals. Accordingly, this petition is timely filed.

Pursuant to Rule 29.4(a), appropriate service is made to the Solicitor General of the

United States and to Assistant United States Attorney Brian Samuelson, who appeared in the

United States Court of Appeals for the Sixth Circuit on behalf of the United States Attorney’s

Office, a federal office which is authorized by law to appear before this Court on its own behalf.

2

PRAYER FOR RELIEF

Petitioner, Tommy Hubbard, respectfully prays that a writ of certiorari issue to review

the opinion and judgment of the United States Court of Appeals for the Sixth Circuit.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

21 U.S.C. § 802(16)(A):

Subject to subparagraph (B), the terms “marihuana” and “marijuana” mean all parts of

the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin

extracted from any part of such plant; and every compound, manufacture, salt,

derivative, mixture, or preparation of such plant, its seeds or resin.

21 U.S.C. § 802(16)(B)(i):

The terms “marihuana” and “marijuana” do not include--(i) hemp, as defined in section

1639o of Title 7 . . . .

7 U.S.C. § 1639o(1):

The term “hemp” means the plant Cannabis sativa L. and any part of that plant,

including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids,

salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol

concentration of not more than 0.3 percent on a dry weight basis.

Tenn. Code Ann. § 39-17-402(16)(A):

“Marijuana” means all parts of the plant cannabis, whether growing or not; the seeds

of the plant; the resin extracted from any part of the plant; and every compound,

manufacture, salt, derivative, mixture, or preparation of the plant, including

concentrates and oils, its seeds or resin

Tenn. Code Ann. § 39-17-402(16)(C):

“Marijuana” also does not include hemp, as defined in § 43-27-101

Tenn. Code Ann. § 43-27-101(3):

“Hemp” means the plant cannabis sativa L. and any part of that plant, including the

seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts

of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (THC)

concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis

3

STATEMENT OF THE CASE AND FACTS

Tommy Hubbard was at a friend’s home when law enforcement arrived to arrest him

on an outstanding warrant.

(Pet. Appx, at 1a-2a.) The apartment’s resident answered the

door and gave consent for law enforcement to search the apartment.

(Id. at 2a.) Inside the

bathroom closet officers found a gun along with baggies that appeared to contain marijuana.

(Id.) Mr. Hubbard voluntarily surrendered to law enforcement and later gave a statement

where he admitting to possessing “weed,” but not identifying whether the marijuana was legal

or illegal.

(Id. at 2a, 8a.) Law enforcement also spoke to the resident, who stated that when

officers knocked on the door, Mr. Hubbard ran onto the balcony, then over to the “bathroom

area” where both the gun and marijuana were located.

(Id. at 2a.)

Based on this incident, Mr. Hubbard later pled guilty in federal court to being a felon

in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Id.) That guilty plea, which

was not based on a plea agreement nor otherwise waived his right to appeal, triggered a

sentencing hearing and the calculation of the applicable guidelines range. The United States

Sentencing Guidelines (“U.S.S.G.”) provides a recommended range of incarceration for

individuals convicted of federal crimes. This guideline range is the federal judge’s starting

point and “lodestar” when determining the appropriate sentence. Molina-Martinez v. United

States, 578 U.S. 189, 200 (2016). As such, the Guidelines have a dramatic impact on an

individual’s ultimate sentence. Id.

The applicable guideline for convictions under § 922(g) is U.S.S.G. § 2K2.1. The

guideline starts out at a base offense level of 14, which can be increased if various

enhancements are applied. One such enhancement is U.S.S.G. § 2K2.1(b)(6)(B), which

increases the base offense level by 4-points if the district court finds that the firearm was

4

possessed “in connection with another felony offense.” Here, the United States Probation

Office recommended application of this enhancement based on the presence of the marijuana

substance in proximity to the firearm. (Pet. Appx. at 2a-3a.) That 4-point enhancement

increased his base offense level from a 17 to a 21, and when combined with his criminal history

category of V increased his guideline range from 46 to 57 months to a range of 70 to 87 months.

(Pet. Appx. at 2a-3a.) In other words, the enhancement added 2-years onto Mr. Hubbard’s

guideline range.

Mr. Hubbard objected to this enhancement, arguing that a lab test was required to

determine whether the substance was in fact illegal—as opposed to legal—marijuana given

the identical characteristics of both.

But his objection was overruled, as the district court

concluded it could determine the illegality of the substance based on Mr. Hubbard’s actions.

(Id. at 1a, 3a.)

On appeal he maintained that objection, arguing that due to the unique

relationship between illegal marijuana and its legal counterpart, circumstantial evidence was

insufficient as a matter of law conclude that the substance was illegal—particularly where, as

here, law enforcement recovered the marijuana substance and was fully capable of conducting

a lab test but inexplicably chose not to. (Id. at 4a-7a; Appellant Br., at 13-22; Reply, at 1-9.)

But, the Sixth Circuit held that a lab test was not required, relying upon case law addressing

other street drugs to hold that circumstantial evidence was also sufficient in the legal versus

illegal marijuana context. (Pet. Appx. at 8a-9a 8-9 (citing United States v. Malone, 846 F.

App’x 355, 361 (6th Cir. 2021) (addressing powder cocaine); United States v. Schrock, 855

F.2d 327, 334 (6th Cir. 1988) (addressing methamphetamine); United States v. Swift, 276 F.

App’x 439, 442 (6th Cir. 2008) (addressing crack cocaine).)

5

REASONS FOR GRANTING OF THE WRIT

I. The Sixth Circuit’s approach is wrong.

A. The physical characteristics and method of use of legal and illegal marijuana

make the two substances indistinguishable absent a lab test.

In Tennessee, and under federal law, it is legal to possess cannabis with a THC (delta9 tetrahydrocannabinol) concentration of 0.3% or less (“legal marijuana”).

Tenn. Code Ann.

§ 39-17-402(16)(C); Tenn. Code Ann. § 39-17-403(f)(1); Tenn. Code Ann. § 43-27-101(3);

21 U.S.C. § 802(16); 7 U.S.C. § 1639o(1).

By contrast, cannabis with a THC concentration

higher than 0.3% is a controlled substance by statute in both jurisdictions (“illegal marijuana”).

21 U.S.C. § 812; 21 U.S.C. § 802(16); Tenn. Code Ann. § 39-17-415(a)(1). Thus, possession

of illegal marijuana with intent to distribute is a felony offense, while possession of legal

marijuana, having 0.3% THC or less is not a crime at all—and certainly not a felony.

Tenn. Code Ann. § 39-17-417(a)(4) and (g)(1); 21 U.S.C. § 841(a)(1) and (d).

See

This has only

been true since April of 2019.

The only difference between legal and illegal marijuana is the concentration of THC—

the two substances are derived from the same plant and are otherwise identical. “It’s a common

misconception that hemp [legal marijuana] and [illegal] marijuana are two different species of

plant,” but “[t]hey’re just two different names for cannabis, a type of flowering plant in the

Cannabaceae family.”

Ferguson, Sian, Hemp vs. Marijuana: What’s the Difference?,

Healthline (Aug. 27, 2020) 1

While “[l]egally, the key difference between the two is

1

Available at https://www.healthline.com/health/hemp-vs-marijuana (last visited June 22,

2023).

6

tetrahydrocannabinol (THC),” “science doesn’t differentiate between ‘hemp’ and ‘marijuana’

. . . .” Id.

This is a sharp difference between marijuana and street drugs such as heroin, cocaine,

or methamphetamine. Unlike illegal marijuana, none of these other illegal drugs has a

corresponding legal variant that not only looks identical but is also used identically. Thus, the

circumstantial evidence relied upon by the Sixth Circuit when addressing heroin, cocaine, or

methamphetamine does not work the context of legal versus illegal marijuana.

Circumstantial evidence is less probative of illegality in the marijuana context to such a large

degree that its use should be rejected entirely. Unlike heroin, cocaine, or methamphetamine, a

lab test is necessary to determine illegality.

B. The Sixth Circuit’s test for determining the illegality of a substance through

circumstantial evidence does not work in the context of legal versus illegal

marijuana.

The Sixth Circuit concluded that the marijuana involved here was illegal based

exclusively on circumstantial evidence and based on caselaw addressing other, distinguishable,

street drugs. That test is neither effective nor sufficient in the unique context of illegal versus

legal marijuana.

In United States v. Wright, 16 F.3d 1429, 1439 (6th Cir. 1994), the Sixth Circuit

discussed six circumstantial factors that indicate a substance is in fact an illegal drug.

are:

(1)

evidence of the physical appearance of the substance involved in the

transaction,

(2)

evidence that the substance produced the expected effects when

sampled by someone familiar with the illicit drug,

7

Those

(3)

evidence that the substance was used in the same manner as the illicit

drug,

(4)

testimony that a high price was paid in cash for the substance,

(5)

evidence that transactions involving the substance were carried on with

secrecy or deviousness, and

(6)

evidence that the substance was called by the name of the illegal

narcotic by the defendant or others in his presence.

16 F.3d at 1439 (quoting United States v. Scott, 725 F.2d 43, 45-46 (4th Cir. 1984)).

Taken

in turn, each of these factors is either entirely meaningless in the unique context of legal versus

illegal marijuana, or its probative value is dramatically reduced. This means that lab testing is

necessary to adequately distinguish between the legal and illegal variants.

The first factor, “evidence of the physical appearance of the substance involved in the

transaction,” is completely meaningless in the legal/illegal marijuana context, because the

legal and illegal marijuana variants look and smell identical. Indeed, Mr. Baldwin, the agent

who testified at Mr. Hubbard’s sentencing, stated that in order to tell the difference between

unpackaged legal and illegal marijuana the substance “would have to be submitted to the lab

for determination.”

(TR Sent., Dist. Ct. R. 36, PageID #223.)

Thus, this factor cannot

support a conclusion that cannabis was illegal marijuana.

The second factor, “evidence that the substance produced the expected effects when

sampled by someone familiar with the illicit drug,” is arguably the only meaningful evidence

that could support a finding (absent a lab test) that marijuana contained a sufficient THC

quantity and was therefore illegal. But, even this factor is significantly undermined in the

legal versus illegal marijuana context, because there is no accurate way to determine that the

physical effects of the cannabis in fact reflect a THC quantity of 0.31% instead of 0.3%.

8

Unlike fake cocaine or methamphetamine for example, which is unlikely to cause any physical

reaction similar to the actual illegal drug, legal marijuana is used for the same reasons as illegal

marijuana, precisely for its ability to relax one’s anxieties, or as pain management.

See

Megan Brenan, Gallup, Wellbeing, “14% of American Say They Use CBD Products” (Aug. 7,

2019) (reporting that most users of legal marijuana used CBD for pain, anxiety or sleep). 2 At

the same time, even if this fact was relevant, there is no evidence here as to the physical effects

the marijuana substance had on a person.

The third factor, “evidence that the substance was used in the same manner as the

illicit drug,” is also completely useless here, because illegal marijuana and legal marijuana are

used in exactly the same way—both are smoked, vaped or baked into snacks. This factor

cannot support a conclusion that marijuana is illegal instead of legal.

The fourth factor, “testimony that a high price was paid in cash for the substance,” is

similarly meaningless here. First, there is no testimony as to the price paid for the marijuana

substance at issue—in fact there was no evidence of any actual instances of distribution.

There were no controlled buys, nor any witness testimony as to purchases from or sales to Mr.

Hubbard. But, second, even if there was such evidence, and even if it can be assumed that

illegal marijuana is more expensive than its legal counterpart, the seller and buyer could readily

be wrong as to the actual THC quantity.

And, it is not a crime, and certainly not a felony to

2

Available at https://news.gallup.com/poll/263147/americans-say-cbd-products.aspx (last

visited June 22, 2023)).

9

sell (or buy) low-THC, legal marijuana even if one thinks it’s illegal marijuana. 3 So, even if

illegal marijuana costs substantially more than designer hemp (legal marijuana), that goes only

to show what the parties to the sale believed they were distributing. But, because no one can

tell the THC level of a marijuana substance by its physical characteristics alone, what a buyer

or seller thought they were exchanging tells us nothing about what the actual substance was.

It tells us nothing as to whether the substance was illegal marijuana or not.

The fifth factor, “evidence that transactions involving the substance were carried on

with secrecy or deviousness,” suffers from the same flaws as the fourth factor—even if the

people involved in the transaction believe they are distributing illegal marijuana, they could

easily be mistaken. Moreover, they are not actually doing anything illegal (let alone felony

conduct) if the substance is in fact legal marijuana.

3

The sale of low-THC cannabis by an individual such as Mr. Hubbard does not garner felony

criminal charges, as Tennessee does not even require a license to sell hemp flow or oils. TN

Dept. of Agriculture, Resources for Producers, “Hemp FAQ—Do I need a license to sell hemp

flower

or

oil?”,

available

at

https://www.tn.gov/agriculture/farms/hempindustry/hemp/getting-started (last visited June 22, 2023). At the same time, the Tennessee

Department of Agriculture has promulgated an administrative rule prohibiting individuals

from “[m]arket[ing] or represent[ing] hemp or hemp products to be marijuana or any illicit

substance in any form,” See Tenn. Comp. R. & Regs. 0080-06-28-.07 (2021). But, while

criminal penalties apply to some violations (such as culpable production of illegal high-THC

marijuana), undersigned was unable to find any criminal penalty for representing low-THC

marijuana to be illegal, high-TCH marijuana. Nor does legal marijuana fall under either the

Tennessee or federal statutes prohibiting the sale of counterfeit substances. See Tenn. Code

Ann. § 39-17-423(a)(3); 21 U.S.C. § 802(7); United States v. Thomas, 939 F.3d 1121, 112425 (10th Cir. 2019) (explaining that under federal law the term “counterfeit substance” is

limited to a controlled substance, such as a pharmaceutical, that has been mislabeled or

misbranded fraudulently or without authorization (citation omitted)).

10

And, finally, the sixth factor, “evidence that the substance was called by the name of

the illegal narcotic by the defendant or others in his presence,” is similarly unhelpful because

the terms “marijuana” and “weed” are regularly used to mean cannabis—regardless of the

THC content—and can refer to both illegal and legal forms of it. Merriam-Webster, “Weed;” 4

Merriam-Webster, “Marijuana.” 5

The terms “marijuana” and “weed” are thus unlike

“cocaine,” “methamphetamine,” “heroin” or even “speed,” 6 because each of those terms

refers only to illegal substances. Thus, the circumstantial evidence test applied by the Sixth

Circuit does not work in the marijuana context.

To illustrate, when someone is snorting or injecting a substance for recreational

purposes, it is logical to assume that the substance is in fact an illegal drug.

But when

someone is recreationally smoking a green, leafy substance that smells like marijuana, it could

just as readily be legal low-THC marijuana. Unlike with cocaine, methamphetamine, or heroin

use is not logical to assume that the green, leafy substance is illegal, because there is an equally

valid—and entirely legal—explanation for the exact same conduct.

The only way to prove

that one is engaged in illegal conduct in the marijuana context, is by testing the THC quantity.

4

Available at https://www.merriam-webster.com/dictionary/weed (last visited June 22,

2023).

5

Available at https://www.merriam-webster.com/dictionary/marijuana (incorporating into

the definition of “marijuana” the definition of low THC “hemp,” and vice versa) (last visited

June 22, 2023).

6

The Merriam-Webster dictionary defines “speed” in the context of physical substances as

only “METHAMPHETAMINE” or “a related stimulant drug and especially an amphetamine.”

It does not encompass any legal substances. Merriam-Webster, “Speed” (available at

https://www.merriam-webster.com/dictionary/speed (last visited June 22, 2023)).

11

At the same time, in the context of other drugs like methamphetamine, cocaine, and

heroine, a defendant’s own belief about whether he possesses an illegal substance is a

reasonable, even determinative, indication that he is doing something illegal.

For those

drugs, (1) it is highly unlikely that the defendant will be mistaken, precisely because there are

no legal alternatives that look and function the same way, and (2) it is a felony to distribute or

possess with intent to distribute a counterfeit substance that resembles an illegal Schedule I,

II, III or IV substance (marijuana falls under none of these schedules).

Tenn. Code Ann.

§ 39-17-423(a)(3); Tenn. Code Ann. § 39-17-415(a)(1).

In short, while circumstantial evidence can be a reliable way to determine whether

individuals were distributing or possessing other illegal drugs, it is not reliable in the new,

post-2019 marijuana context. A lab test was necessary here. And it is inexplicable that the

government failed to order one when they had the marijuana substance in their possession.

II.

This is a widespread and consistently recurring question of exceptional

importance.

The specific guideline enhancement at issues here—for possessing a firearm in

furtherance of another felony (U.S.S.G. § 2K2.1(b)(6)(B))—is perhaps one of the most

frequently applied enhancements in all of federal sentencing. In fiscal year 2021 alone, the

enhancement was applied in 2,264 cases, many of which undoubtedly involved a marijuana

substance.

Sentencing Commission, Use of Guidelines and Specific Offense Characteristics,

Guideline Calculation Based at 131 (Fiscal Year 2021). 7

7

Available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federalsentencing-statistics/guideline-application-frequencies/2021/Ch2_Guideline_Based.pdf (last

visited June 22, 2023).

12

Moreover, a Gallop poll from 2019 found that 14% of Americans use CBD (i.e. “hemp”

or “legal marijuana”) products, including hemp flower. Megan Brenan, Gallup, Wellbeing,

“14% of American Say They Use CBD Products” (Aug. 7, 2019). 8 That would equate to

approximately 46,892,863 Americans today. United States Census Bureau, U.S. and World

Population Clock (June 22, 2023) (listing the US population at 334,949,023). 9 Thus, not only

are countless people in the federal system receiving enhancements based on their possession

of a marijuana substance which could be purely legal, but the general public is using legal lowTCH products on an increasingly regular basis. The continued application to the marijuana

context of an outmoded set of assumptions surrounding circumstantial evidence risks

subjecting thousands, if not millions of Americans engaged in legal conduct to wrongful

convictions or wrongfully enhanced sentences.

8

Available at https://news.gallup.com/poll/263147/americans-say-cbd-products.aspx (last

visited June 22, 2023).

9

Current population numbers available at https://www.census.gov/popclock/ (last visited

June 22, 2023).

13

CONCLUSION

In consideration of the foregoing, Mr. Tommy Hubbard submits that the petition for

certiorari should be granted so the Court can address this exceptionally important issue.

Respectfully submitted,

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

By:_ /s/ Erin Rust

Erin P. Rust

Assistant Federal Community Defender

835 Georgia Avenue, Suite 600

Chattanooga, Tennessee 37402

(423) 756-4349

14