United States v. Miller
| Decision Date | 12 May 2022 |
| Docket Number | 21-5598 |
| Citation | 34 F.4th 500 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Daniel Frank MILLER, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Kevin G. Ritz, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellant. M. Dianne Smothers, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellee. ON BRIEF: Kevin G. Ritz, William Joshua Morrow, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellant. M. Dianne Smothers, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellee.
Before: MOORE, COLE, and NALBANDIAN, Circuit Judges.
COLE, J., delivered the opinion of the court in which NALBANDIAN, J., joined. MOORE, J. (pgs. 506–07), delivered a separate dissenting opinion.
Daniel Miller pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the government objected to United States Probation and Pretrial Services’ recommended offense level, arguing Miller's prior convictions for Tennessee drug delivery were "controlled substance offenses" under the United States Sentencing Guidelines. But the district court rejected the government's argument, reasoning our decision in United States v. Havis , 927 F.3d 382 (6th Cir. 2019) (per curiam) (en banc), reconsideration denied 929 F.3d 317 (Mem.), controlled. Sitting en banc, we accepted the Havis parties’ agreement that "the least culpable conduct" proscribed by Tennessee's drug delivery statute was "the attempted delivery of a controlled substance" and unanimously held that attempt crimes were not "controlled substance offenses" because they were omitted from the Guidelines’ text. Id. at 385, 387. Since then, however, we have repeatedly acknowledged that "the parties’ assumption in Havis was wrong." United States v. Booker , 994 F.3d 591, 596 (6th Cir. 2021) (collecting cases). In this case, we clarify that the parties in Havis were mistaken about the scope of Tennessee's drug delivery statute. Because our legal determinations cannot be dictated by parties’ stipulations, we evaluate the statute anew and conclude it is a controlled substance offense. Accordingly, we vacate Miller's sentence and remand to the district court for resentencing.
Just before 10 p.m. on March 23, 2019, law enforcement arrested Miller at his home for failure to appear in McNairy County General Sessions Court. Police woke Miller up in his bedroom and searched his room and his person. They found methamphetamine, marijuana, and a shotgun at the end of his bed. Miller pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Probation recommended a base offense level of 14.
The government objected to Probation's recommendation. It argued Miller's three prior Tennessee felony convictions for drug delivery were "controlled substance offenses" under § 4B1.2(b) of the Guidelines. In the government's view, Miller's base offense level should have been set at 24. Probation, however, stood firm. It maintained that our en banc decision in Havis foreclosed the government's position.
Havis is an unusual case. There, we granted en banc review to consider the "narrow" question of what role the Guidelines’ commentary plays in interpreting its text. Havis , 927 F.3d at 384. After describing the function of the Sentencing Commission, we explained that "commentary to the Guidelines ... has no independent legal force" because it does not "pass[ ] through the gauntlets of congressional review or notice and comment." Id. at 386 (citing, e.g. , Stinson v. United States , 508 U.S. 36, 44–46, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) ). For that reason, we unanimously held the Guidelines’ definition of "controlled substance offense" does not include attempt crimes because the Guideline's text included only completed offenses. Id. at 387. To reach that conclusion, we first accepted the parties’ agreement that the least culpable conduct criminalized under Tennessee's drug delivery statute, Tenn. Code Ann. § 39-17-417, was the attempted delivery of a controlled substance. Id. at 385. Based on that representation, we concluded that Tennessee's drug delivery statute was not a "controlled substance offense." Id. at 387.
When the government moved for reconsideration, one member of the en banc panel suggested the parties’ stipulation about § 39-17-417 ’s scope may have been wrong. See 929 F.3d at 320 ( Havis II ) (Sutton, J., concurring in denial of en banc reconsideration). Tennessee defines "delivery" as "the actual, constructive, or attempted transfer from one person to another of a controlled substance."
Tenn. Code Ann. § 39-17-402(6). After analyzing the various provisions in play, the separate writing explained that "[s]omeone who attempts to transfer drugs in Tennessee has committed the completed offense of delivery under § 39-17-417(a)(2)," but "someone who attempts to deliver drugs ... has committed the lesser-included, but distinct, offense of attempted delivery under § 39-12-101(a)." Havis II , 929 F.3d at 320 (). As a result, "a person who commit[ted] a completed delivery offense under Tennessee law"—like Havis—"may merit a guidelines bump" after all. Id. "But the government, even in its motion for reconsideration, did not make this argument," so the issue was left for "future cases" to resolve. Id.
Since then, subsequent decisions have consistently stressed that the parties’ agreement in Havis was wrong while reiterating that Havis ’s ultimate holding—that the Guidelines’ commentary cannot add offenses to the Guidelines themselves—was correct. See, e.g. , Booker , 994 F.3d at 596 (); United States v. Elliott , 835 F. App'x 78, 81 (6th Cir. 2020) (same); United States v. Thomas , 969 F.3d 583, 585 (6th Cir. 2020) (per curiam) (same); United States v. Garth , 965 F.3d 493, 497 (6th Cir. 2020) (discussing Tennessee's possession-with-intent-to-deliver statute). These observations have come most often in the context of Michigan law. Like Tennessee, Michigan defines "deliver" or "delivery" as "the actual, constructive, or attempted transfer ... of a controlled substance[.]" Mich. Comp. Laws § 333.7105(1). We have made clear that, under this provision, "an ‘attempted transfer’ " is not an attempt crime; rather, it "constitutes a completed delivery [.]" Booker , 994 F.3d at 596 (citations omitted). But we have not had an opportunity to clarify the same with respect to Tennessee's delivery statute. But see Garth , 965 F.3d at 497–98 ().
This brings us back to the instant case. Left to muddle through Havis and its conflicting progeny, the district court observed it was still "constrained ... to follow Havis " and ultimately concluded that Miller's previous Tennessee convictions for completed drug delivery were not controlled substance offenses under the Guidelines. As a result, it adopted Probation's recommended base offense level of 14. After decreasing Miller's offense level by two for acceptance of responsibility, the district court imposed a 36-month sentence. The government appealed.
Whether a prior conviction counts as a "controlled substance offense" is a question of law we review de novo. Havis , 927 F.3d at 384.
We use a three-step categorical approach to determine whether prior convictions count as a controlled-substance offense under the Guidelines. Garth , 965 F.3d at 495. We start by "map[ping] out what conduct is criminalized under the [G]uidelines’ definition." Id. Then, we "do the same" for the Id. The third and final step requires us to "overlay the two" to assess whether "the [G]uidelines ... fully envelop the state law of conviction." Id. If it does, then the conviction qualifies as a controlled substance offense. If it does not, then the statute does not "categorically qualif[y] as a controlled substance offense," and it cannot be used to enhance the defendant's base offense level. Havis , 927 F.3d at 385.
We begin at step one. Section 4B1.2(b) of the Guidelines defines "controlled substance offense" as:
[A]n offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, 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). Stated differently, a controlled substance offense is "a federal or state felony conviction for possessing a controlled substance with intent to distribute[.]" Garth , 965 F.3d at 496. Under federal law, "distribute" means "to deliver," and "deliver" means "the actual, constructive, or attempted transfer of a controlled substance[.]" 21 U.S.C. § 802(8), (11). As we have mentioned, only completed crimes fall within the ambit of a controlled substance offense; attempt crimes do not. Havis , 927 F.3d at 387.
Next, we confront step two. Tennessee's delivery statute in part provides: "It is an offense for a defendant to knowingly ... [d]eliver a controlled substance." Tenn. Code Ann. § 39-17-417(a)(2). Tennessee also criminalizes "knowingly ... deliver[ing] methamphetamine[.]" Id. § 39-17-434(a)(2). And just like federal (and Michigan) law, Tennessee defines "deliver" and "delivery" in both as "the actual, constructive, or attempted transfer ... of a controlled substance." Compare id. § 39-17-402(6), with 21 U.S.C. § 802(8), (11), and Mich. Comp. Laws § 333.7105(1) ; see also Garth , 965 F.3d at 496 ().
Neither party disputes that Miller was previously convicted under Tenn. Code Ann. §...
To continue reading
Request your trial