In United States v. Dupree, Case No. 19-13776 (Feb. 18, 2022), the Court agreed to rehear Mr. Dupree’s appeal en banc, vacating the panel’s prior unpublished opinion. The panel, in affirming Mr. Dupree’s sentence, found itself bound by the Court’s opinion in United States v. Weir, 51 F.3d 1031 (11th Cir. 1995).
The issue raised concerns whether a conviction under 21 U.S.C. § 846 (conspiracy to possess with intent to distribute a controlled substance) qualifies as a “controlled substance offense” for purposes of the career offender enhancement under U.S.S.G. § 4B1.1. Mr. Dupree, in his petition for rehearing en banc, argued both that a § 846 conspiracy is not a “controlled substance offense” because Application Note 1 adds to, rather than interprets, § 4B1.2’s text, and that a § 846 conspiracy is not a “controlled substance offense” because a § 846 conspiracy covers more conduct than a generic conspiracy.