United States v. Bankhead
5:17-cr-00333
N.D. OhioApr 13, 2020Background:
- Michael Powell was indicted on August 22, 2017, and pled guilty on December 6, 2017 to conspiracy to possess with intent to distribute cocaine base (Count 1).
- Powell was initially sentenced with a career-offender enhancement based on prior convictions; he appealed his sentence.
- While the appeal was pending, the Sixth Circuit decided United States v. Havis, which held that attempt crimes are not "controlled substance offenses" under U.S.S.G. §4B1.2(b) because Application Note 1 cannot add offenses beyond the guideline text.
- The Court considered whether the Havis reasoning should extend to conspiracy convictions listed in Application Note 1 to §4B1.2(b).
- Relying on Havis and similar authority (including United States v. Norman and United States v. Cooper), the Court concluded conspiracy convictions do not qualify as "controlled substance offenses" under §4B1.2(b).
- As a result, at resentencing on February 5, 2020, the Court declined to apply the career-offender enhancement to Powell; the Court discussed an upward variance at the hearing but did not restate those sentencing terms in the written order.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a conspiracy conviction counts as a "controlled substance offense" under U.S.S.G. §4B1.2(b) for career-offender enhancement | Application Note 1 includes conspiracy, so the conviction should qualify | The guideline text controls; commentary cannot add new offenses—Havis rejects attempts, so conspiracy should be excluded | Conspiracy does not qualify; Powell is not a career offender and was resentenced without that enhancement |
Key Cases Cited
- United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (held attempt crimes are not "controlled substance offenses" under §4B1.2(b) because commentary cannot add offenses beyond guideline text)
- United States v. Norman, 935 F.3d 232 (4th Cir. 2019) (conspiracy under 21 U.S.C. §846 is not a categorical controlled-substance offense for enhancement purposes)
- United States v. Cooper, 410 F. Supp. 3d 769 (S.D.W. Va. 2019) (observed that listing conspiracy in commentary improperly adds an offense beyond the Guideline text)