United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C Reeves, Chief Judge United States District Court
August 30, 2019, Defendant Walter Powell pleaded guilty to
possessing with the intent to distribute fentanyl. [Record
No. 87] He is scheduled to be sentenced on December 13, 2019.
The Presentence Investigation Report (“PSR”)
assigns Powell a Total Offense Level of 31 and places him in
Criminal History Category of VI under the applicable United
States Sentencing Guidelines, resulting in an advisory
guidelines range of 188 to 235 months' imprisonment. The
statutory minimum term of imprisonment for Powell's
conviction is five years and the maximum is forty years,
pursuant to 21 U.S.C. § 841(b)(1)(B).
calculating Powell's Total Offense Level and Criminal
History Category, the probation officer classified Powell as
a Career Offender under section 4B1.1 of the 2018 United
States Sentencing Guidelines Manual (“USSG”).
Under that section, “[a] defendant is a career offender
if (1) the defendant was at least eighteen years old at the
time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance
offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” Powell contends that his criminal
history does not satisfy the third prong.
4B1.2 defines a “controlled substance offense” as
“an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that prohibits
the manufacture, import, distribution, or dispensing of a
controlled substance (or a counterfeit substance) or the
possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export,
distribute, or dispense.” U.S.S.G. § 4B1.2(b). The
commentary to this section provides that a “controlled
substance offense” includes “the offenses of
aiding and abetting, conspiring, and attempting to commit
such crimes.” § 4B1.2 cmt. 1.
was convicted of controlled substance delivery/manufacture
(cocaine or other narcotic), less than 50 grams, in Michigan
state court in March 2010. See Mich. Comp. Laws
§ 333.7401(2)(a)(iv) (punishable by up to 20 years'
imprisonment). He was sentenced 36 months' probation;
however, his probation was later revoked and he was committed
to county jail for one year, with 17 days' credit for
time served. Powell was convicted of the same offense in the
same court (except this time, cocaine and heroin were
involved) in February 2013. He was sentenced to 18
months' imprisonment and received 113 days' credit
for time served.
argues that the Sixth Circuit's recent decision in
United States v. Havis, 927 F.3d 382 (6th Cir.
2019), precludes application of the career-offender
enhancement under § 4B1.1 Jeffery Havis pleaded guilty
to being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). A person convicted under §
922(g)(1) begins with a base offense level of 14 under the
sentencing guidelines, but the level increases to 20 if the
defendant has a prior conviction for a “controlled
substance offense.” See U.S.S.G. §2K2.1.
Havis received the six-level increase based on a previous
Tennessee conviction for selling/delivering cocaine.
See Tenn. Code. Ann. § 39-17-417(a)(2)-(3).
Havis' charging documents did not specify whether his
conviction was for sale, delivery, or both. Accordingly, the
court employed the categorial approach and looked to the
least of the acts criminalized by the elements of the
statute. Havis, 927 F.3d at 384.
Tennessee law, “delivery” of drugs means
“the actual, constructive, or attempted transfer from
one person to another of a controlled substance.”
§ 39-17-402(6). The parties agreed that the least
culpable conduct covered by the statute was the attempted
delivery of a controlled substance. Havis, 927 F.3d
at 385. Therefore, Havis argued that his conviction was not a
controlled substance offense within the meaning of section
4B1.2 of the guidelines because it encompassed the mere
attempt to sell cocaine. The Sixth Circuit agreed.
reaching this conclusion, the Sixth Circuit focused on the
language of the guideline provision, its commentary, and the
role of the United States Sentencing Commission. Id.
Ultimately, the court observed that the commentary has
“no independent legal force” and “serves
only to interpret the Guidelines' text, not to replace or
modify it.” Id. at 386. Since
“attempt” was not included in the text of §
4B1.2, the commentary impermissibly broadened the definition
of “controlled substance offense.” Id.
relies on this decision in support of his argument that
§ 4B1.1 does not apply to him. Powell is correct that
the Michigan statutes under which he was convicted are
substantially similar to the Tennessee statutes at issue in
Havis. Michigan Compiled Statute § 333.7401
provides, in relevant part, that “a person shall not
manufacture, create, deliver, or possess with intent to
manufacture, create, or deliver a controlled
substance.” “Deliver” or
“delivery” is defined as “the actual,
constructive, or attempted transfer from 1 person to another
of a controlled substance, whether or not there is an agency
relationship.” Mich. Comp. Laws § 333.7105(1).
Court's acceptance of Powell's superficial reading of
Havis would produce a straightforward ruling in his
favor. However, the government's response to Powell's
objection provides a more nuanced, commonsense resolution of
this issue. [Record No. 103] The United States Attorney
sought en banc reconsideration in Havis, which was
denied. But Judge Sutton authored a concurring opinion
explaining why Havis' prior conviction very well could
have fallen within the guidelines definition of
“controlled substance offense.” United States
v. Havis, 929 F.3d 317 (6th Cir. 2019) (Mem.).
Sutton focused on the relevant statutory definitions and the
distinctions between completed and attempted offenses. The
Controlled Substances Act makes it unlawful to
“manufacture, distribute, or dispense” certain
drugs. 21 U.S.C. 841(a)(1). The Act defines
“distribute” as “to deliver.” 21
U.S.C. § 802(11). “Deliver” is defined as
“the actual, constructive, or attempted
transfer” of a controlled substance. § 802(8)
(emphasis added). Accordingly, as Judge Sutton correctly
noted, an individual can complete the offense of distributing
drugs by attempting to transfer drugs. “This does not
make the crime of conviction under § 841 an
attempted distribution. Instead, [21 U.S.C. §
846] criminalizes attempted drug offenses, such as attempted
distribution.” Havis, 929 F.3d at 319.
“The two constitute distinct offenses, one greater and
one lesser, one complete and one attempted.”
Havis, 929 F.3d at 319 (citing Costco v. United
States, 904 F.2d 344, 348 (6th Cir. 1990)).
guidelines do not define distribution, and Judge Sutton saw
no reason to give the term a different meaning from the
definition provided in the Controlled Substances Act.
Id. As relevant here, Michigan law parallels federal
law and Tennessee law in that the completed offense of
delivery is defined as “the actual, constructive, or
attempted transfer . . . of a controlled substance.”
See Mich. Comp. Law §§ 333.7401,
333.7105(1). And, just like federal law (and Tennessee law in
Havis), Michigan law separately criminalizes
attempting to violate the drug laws. See Mich. Comp.
Law § 750.92.
Judge Sutton pointed out previously, it would be bizarre if
an offense that violated the primary provision of the
Controlled Substances Act turned out not to be a controlled
substance offense under the guidelines. Havis, 929
F.3d at 320. Notwithstanding the Sixth Circuit's
invalidation of the commentary to U.S.S.G. § 4B1.2 in
Havis, 927 F.3d 382, Powell remains eligible for the
career-offender enhancement under § 4B1.1. For these
reasons, it is hereby
that Defendant Powell's objection to the PSR concerning
application of the career-offender enhancement ...