UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ UNITED STATES OF AMERICA, │ Plaintiff-Appellee, │ > No. 22-1436 │ v. │ │ IDRIS QUINTELL WILKES, │ Defendant-Appellant. │ ┘

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:21-cr-00042-1—Janet T. Neff, District Judge.

Argued: January 12, 2023

Decided and Filed: August 11, 2023

Before: STRANCH, MURPHY, and DAVIS, Circuit Judges _________________

COUNSEL ARGUED: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids, Michigan, for Appellant. Kathryn M. Dalzell, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids, Michigan, for Appellant. Kathryn M. Dalzell, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee. _________________

OPINION _________________

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 No. 22-1436 United States v. Wilkes Page 2

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.

I.

A federal grand jury indicted Wilkes on the single charge of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 921(a), and 924(a). He pleaded guilty to the offense, acknowledging that he might be subject to a 15-year mandatory minimum sent