STEPHANIE DAWKINS DAVIS, Circuit Judge. Defendant Idris Quintell Wilkes was convicted of being a felon in possession of a firearm in the district court for the Western District of Michigan. He received the mandatory minimum sentence of 15 years’ imprisonment under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), based on the district court’s determination that his four previous cocaine-related Michigan convictions met the definition of a “serious drug offense.” Wilkes contends, however, that Michigan law covers more cocaine-related substances than federal law in two ways: (1) Michigan’s law includes [123I] ioflupane and federal law does not, and (2) Michigan includes all the stereoisomers of cocaine and federal law does not. Accordingly, he argues that when the court applies the categorical approach under the ACCA, it must find that his prior convictions are not predicate serious drug offenses under the statute. The government maintains that the ACCA enhancement was properly applied because the state law is co-extensive with federal law, so there is no categorical mismatch.

Wilkes also argues that the district court improperly overruled his objection to the inclusion of proffer-protected information in the presentence report. According to the government, to the extent this error was raised below, it was harmless. And to the extent Wilkes raises new arguments to support this claim, he has failed to establish plain error.

For the reasons set forth below, we AFFIRM the decision of the district court in part and hold the appeal in abeyance in part, retaining jurisdiction to later resolve one of Wilkes’s two challenges to the ACCA enhancement.

The Tennessee Board of Professional Responsibility issued two new ethics opinions last week. The first, 2023-F-169, addresses what steps lawyers should take when departing a law firm and what steps firms should take to protect clients. The second, 2023-F-170, addresses acceptance of credit card payments and the use of payment platforms such as Venmo. TBA CLE ethics speaker Brian Faughnan provides his take on the opinions in his blog Faughnan on Ethics.

Memphis lawyer Patrick H. Morris, a senior employment llitigator at Federal Express and a member of the TBA Young Lawyers Division Board, was elected assembly clerk of the American Bar Association Young Lawyers Division (ABA YLD) at the group’s meeting in Denver last week. As clerk, Morris will chair the ABA YLD Credentials Board and sit on the ABA YLD Executive Committee, Executive Board and Elections Committee. The position also puts him in the line of succession for ABA YLD speaker, a position he will assume for the 2024-2025 bar year. Morris also recently was appointed to the ABA Commission on Governance by ABA President Mary L. Smith. In this role, Morris will take part in the decennial review of the ABA House of Delegates, Board of Governors and Nominating Committee.

RONALD LEE GILMAN, Circuit Judge. Baha Jaffal was indicted by a federal grand jury on two counts of possessing controlled substances with the intent to distribute the drugs, in violation of 21 U.S.C. § 841(a)(1). Count 1 involved the distribution of 35.69 grams of a mixture containing heroin and carfentanil that was found in Jaffal’s coat pocket on November 11, 2019. Count 2 involved 27 pills containing fentanyl and 4-ANPP (a schedule II controlled substance) that were found in Jaffal’s pocket on December 12, 2019. The grand jury also indicted Jaffal for using or carrying a firearm in relation to a drug-trafficking crime (Count 3), in violation of 18 U.S.C. § 924(c), and for being a felon in possession of a firearm (Count 4), in violation of 18 U.S.C. § 922(g)(1). We refer to the counts as they were numbered at trial, not as they were numbered in the indictment (which included an additional count that was later dismissed). A jury convicted Jaffal on all four counts.

On appeal, Jaffal argues that his convictions for Counts 1, 2, and 3 should be overturned because the district court erroneously admitted (1) “other acts” evidence, in violation of Rule 404(b) of the Federal Rules of Evidence (Fed. R. Evid.); (2) hearsay evidence; and (3) expert opinion testimony about Jaffal’s mental state. Jaffal also argues that these three convictions should be overturned because he was entitled to a lesser-included-offense instruction for simple possession of the drugs. He does not appeal his conviction on Count 4.

For the reasons set forth below, we AFFIRM all of the district court’s evidentiary rulings, REVERSE its failure to give the lesser-included-offense instruction, and REMAND for a new trial on Counts 1, 2, and 3.

Shaun Alexander Hodge, Petitioner, filed a petition for writ of error coram nobis (the Petition) seeking relief from his 2002 conviction for first degree premeditated murder and his life sentence. The coram nobis court summarily dismissed the Petition after finding that the Petition was not timely filed; that the Petition failed to set forth with particularity facts demonstrating that Petitioner was entitled to equitable tolling; that the evidence of a witness’s prior criminal conviction was not newly discovered; and that there was no reasonable basis to conclude that, if the claimed newly discovered evidence had been presented to the jury, the result might have been different. After a thorough review of the record and applicable law, we affirm.

The defendant, Janet Elaine Hinds, appeals her Hamilton County Criminal Court jury convictions of vehicular homicide by intoxication, driving under the influence (“DUI”), leaving the scene of an accident, and other driving-related offenses, for which she received an effective sentence of 11 years’ incarceration. On appeal, the defendant challenges the sufficiency of the evidence supporting her convictions for vehicular homicide by intoxication and DUI, the denial of her motions to suppress evidence obtained from the searches of her home and vehicle, the admission of a life photograph of the victim and videos of the crime scene, the limitation of cross-examination and exclusion of evidence related to the defense’s calculation of blood alcohol levels, the jury instructions on flight and proximate cause, and comments made by the prosecution during closing arguments. The defendant also argues that her sentence is excessive and that the cumulative effect of the errors entitles her to a new trial. Discerning no error, we affirm.

In April of 2019, Petitioner, Jeremy Alexander, pleaded guilty to several drug-related offenses. He received an effective 27-year sentence suspended to probation, supervised by community corrections after the service of 120 days in incarceration. Petitioner quickly violated the terms of his probation and was ordered to serve his entire 27-year sentence in incarceration. Petitioner appealed the revocation and this Court affirmed. State v. Alexander, No. W2020-00953-CCA-R3-CD, 2021 WL 3440542, at *1 (Tenn. Crim. App. Aug. 6, 2021), no perm. app. filed. Petitioner then sought post-conviction relief on the basis that his guilty plea was unknowing and involuntary and that he received ineffective assistance of counsel at the guilty plea hearing. The post-conviction court dismissed the petition as untimely. We affirm the dismissal of the petition.

The mother of a minor filed suit against a county and county employees, alleging that the minor was sexually assaulted by a county employee while in custody at a county-run juvenile detention center. The trial court granted the county’s motion for summary judgment on several grounds, including that the county retained immunity under the Governmental Tort Liability Act because the claims against the county arose out of civil rights claims. Finding no error, we affirm the judgment of the trial court.

Week of August 7, 2023 - August 11, 2023

The Nashville Business Journal has awarded its 2023 Lifetime Achievement distinction to Nashville lawyer Charles W. Bone, a founding partner of Bone McAllester Norton, which merged with Spencer Fane in 2021. According to the Journal, Bone was selected as this year’s honoree for the critical role he has played in Middle Tennessee’s growth, noting that he has provided counsel to more than 100 financial institutions and was responsible for forming the first community bank holding company in Tennessee. He also was a leader in the campaign that defeated the 2009 “English only” referendum in Nashville, an adviser for Al Gore and instrumental in the release of Cyntoia Brown, a juvenile convicted of murder. The Journal sat down with Bone for an interview about the state of the legal profession, what law schools should be teaching and some of his most memorable cases.