965 F.3d 493
6th Cir.2020Background
- Willie Garth pled guilty in federal court to possessing crack cocaine with intent to distribute; initial Guidelines range 70–87 months.
- At sentencing the court applied the career-offender enhancement based on two prior Tennessee convictions: aggravated assault and possession of marijuana with intent to deliver, raising the range to 151–188 months; court sentenced Garth to 110 months.
- Garth appealed, arguing his Tennessee possession-with-intent-to-deliver conviction is not a "controlled-substance offense" under U.S.S.G. § 4B1.2(b), in light of this court’s en banc decision in Havis.
- The Sixth Circuit applied the categorical approach: define the Guidelines offense, define the state offense, and compare whether the state offense is coterminous with (or narrower than) the Guidelines definition.
- Tennessee law defines possession with intent to deliver as knowing possession plus intent to sell or deliver; delivery is an actual, constructive, or attempted transfer, and intent can be inferred from quantity and surrounding facts.
- The court concluded Tennessee possession with intent to deliver matches the Guidelines’ definition of possession with intent to distribute and therefore counts as a controlled-substance offense, affirming the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tenn. possession with intent to deliver is a "controlled-substance offense" under U.S.S.G. § 4B1.2(b) | Garth: Havis shows Tennessee "delivery" includes attempted delivery, so the Tennessee statute covers attempted crimes (or mere intent), falling outside the Guidelines' completed-offense definition. | Gov't: Tennessee elements (knowing possession + intent to sell/deliver) are coterminous with federal possession-with-intent-to-distribute; lexical differences immaterial; Havis does not show the Tennessee offense is an attempted crime. | The court held Tennessee possession with intent to deliver is categorically a controlled-substance offense under § 4B1.2(b); career-offender enhancement applies. |
| Whether the Havis decision controls here because Tennessee "delivery" covers attempted delivery | Garth: Havis held Tennessee delivery includes attempted delivery; that reasoning extends to possession-with-intent-to-deliver, rendering it outside § 4B1.2(b). | Gov't: The right analytical substitution yields possession-with-intent-to-attempt-to-transfer (a completed possession offense), not an attempted possession offense; Havis does not negate § 4B1.2(b) coverage. | Court rejected Garth's extension of Havis and explained Havis arose from the parties' framing; the substitution relied on by Garth produces untenable consequences, so Havis does not bar coverage here. |
| Whether possession-with-intent-to-deliver is a completed offense or an attempt | Garth: Argues statutory language could reach "attempt" forms of delivery. | Gov't: Possession plus intent completes the crime; no delivery need occur. | Court: Possession with intent is a completed crime under Tennessee law and therefore fits the Guidelines' completed-offense definition. |
| Whether there is a realistic probability Tennessee prosecutes/punishes an "intent-to-attempt" offense under the statute | Garth: Contends Tennessee law could be applied to convict for mere intent-to-attempt. | Gov't: No precedent shows Tennessee convicts under § 39-17-417(a)(4) for attempt-to-attempt; Tennessee law rejects the concept of "intent to attempt." | Court: No realistic probability exists; Tennessee case law shows courts treat intent as intent to act, not intent to attempt; thus the statute is not meaningfully broader. |
Key Cases Cited
- United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (interpreting Tennessee delivery in prior categorical-challenge context)
- United States v. Calvetti, 836 F.3d 654 (6th Cir. 2016) (knowingly possessing with intent to distribute requires proof of possession and intent)
- United States v. Woodruff, 735 F.3d 445 (6th Cir. 2013) (categorical matching of state offenses to Guidelines elements)
- United States v. Oliver, 919 F.3d 393 (6th Cir. 2019) (avoid interpretations at odds with the Guidelines drafters’ intent)
- United States v. Vincent, 20 F.3d 229 (6th Cir. 1994) (quantity and other evidence can show intent to distribute)
- United States v. Faymore, 736 F.2d 328 (6th Cir. 1984) (possession-with-intent is a completed offense even if delivery is not consummated)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (realistic-probability test for categorical overbreadth)
- United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018) (discussing attempted offenses in categorical-analysis context)