950 F.3d 329
6th Cir.2020Background
- In 2017 Pedro Cavazos and Christopher Serrano transported cocaine from Texas to Kentucky and pleaded guilty to one count of conspiracy to distribute >=500 grams of cocaine (21 U.S.C. §§ 841(a)(1), 846).
- The government gave both notice that prior felony drug convictions triggered enhanced statutory penalties under 21 U.S.C. § 841(b)(1)(B).
- Cavazos objected that the prior 2004 federal methamphetamine conviction could not be used because of the Double Jeopardy Clause; the district court rejected the challenge and applied the enhancement; Cavazos received the 120-month statutory minimum.
- Serrano affirmed his priors; the district court labeled him a career offender under USSG § 4B1.1 based on a prior federal drug conspiracy and a Texas conviction under Tex. Health & Safety Code § 481.112 (possession with intent to deliver), producing an offense level 37 and a 262-month sentence.
- On appeal Cavazos argued his prior conviction was constitutionally infirm; the Sixth Circuit held 21 U.S.C. § 851(e)’s five‑year time bar foreclosed the collateral challenge and affirmed Cavazos’s sentence.
- Serrano argued § 481.112 is not a categorical "controlled substance offense" because it criminalizes "offers to sell" (an attempt); the Sixth Circuit concluded current precedent (Havis overruling the relevant portion of Evans) makes applying § 4B1.1 plain error, vacated Serrano’s sentence, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cavazos may collaterally attack his prior federal conviction used to enhance § 841(b)(1)(B) under the Double Jeopardy Clause | Cavazos: prior conviction unconstitutional; cannot be used to enhance | Gov: dual-sovereignty doctrine permits prior federal conviction; § 851(e) bars challenges after five years | Held: § 851(e) time‑bar prevents the challenge; Cavazos’s sentence affirmed |
| Whether Serrano’s Texas § 481.112 conviction is a categorical "controlled substance offense" under USSG § 4B1.2 because it criminalizes offers to sell (attempts) | Serrano: § 481.112 is too broad (includes offers/attempts) and thus not a predicate under the categorical approach | Gov: § 481.112 qualifies; offer-to-sell counts as attempt and fits § 4B1.2 (relying on earlier Evans) | Held: Current Sixth Circuit law (Havis) rejects treating application‑note attempts as part of § 4B1.2; § 481.112 is too broad; career‑offender designation was plain error; Serrano’s sentence vacated and remanded |
Key Cases Cited
- Gamble v. United States, 139 S. Ct. 1960 (2019) (dual‑sovereignty doctrine bears on successive sovereign prosecutions)
- Custis v. United States, 511 U.S. 485 (1994) (limits collateral attacks on prior convictions used for sentence enhancement; narrow exception for absence of counsel)
- United States v. Reed, 141 F.3d 644 (6th Cir. 1998) (upholding Congress’s restriction on collateral attacks except in limited circumstances)
- Molina‑Martinez v. United States, 136 S. Ct. 1338 (2016) (improper Guidelines calculation ordinarily affects substantial rights)
- Rosales‑Mireles v. United States, 138 S. Ct. 1897 (2018) (plain Guidelines error undermines fairness and integrity of proceedings)
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach for determining whether prior convictions are predicates)
- Descamps v. United States, 570 U.S. 254 (2013) (modified categorical approach for divisible statutes)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishing alternative elements from alternative means for divisibility)
- United States v. Evans, 699 F.3d 858 (6th Cir. 2012) (held an offer to sell equates to an attempt and could fit § 4B1.2 predicate — later limited by Havis)
- United States v. Havis, 927 F.3d 382 (6th Cir. en banc 2019) (rejected treating application‑note attempts as part of § 4B1.2; limited Evans and clarified attempt crimes not included in § 4B1.2)
- United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017) (addressed divisibility of Texas § 481.112 and held the statute indivisible for categorical analysis)
- United States v. Gonzales, 484 F.3d 712 (5th Cir. 2007) (interpreted § 481.112 as covering conduct beyond the Guidelines’ predicate definition)