UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DARIUS TIRRELL THOMAS, Defendant-Appellant.
No. 19-5529
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: August 5, 2020
Before: GRIFFIN, KETHLEDGE, and THAPAR, Circuit Judges.
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 20a0245p.06. Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga. No. 1:17-cr-00127-1—Curtis L. Collier, District Judge.
COUNSEL
ON BRIEF: Christian Lanier, Chattanooga, Tennessee, for Appellant. Debra A. Breneman, UNITED STATES ATTORNEY‘S OFFICE, Knoxville, Tennessee, for Appellee.
PER CURIAM. Darius Thomas argues that, under our decision in United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam), the district court erred by sentencing him as a career offender under the Sentencing Guidelines. We reject his argument and affirm.
In 2017, Thomas pled guilty to two counts of distributing a mixture containing heroin, in violation of
Thomas did not challenge the career-offender enhancement below, so we review his argument only for plain error. See United States v. House, 872 F.3d 748, 753 (6th Cir. 2017). Under the Guidelines, a defendant is a career offender when he “has more than one prior conviction for either crimes of violence or controlled-substance offenses.” United States v. Garth, 965 F.3d 493, 2020 WL 3969283, at *1 (6th Cir. July 14, 2020). The Guidelines define a controlled-substance offense as “an offense under federal or state law . . . that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.”
Thomas argues that his prior offenses under Michigan law—delivery of heroin and possession with intent to deliver marijuana—were not controlled-substance
Thomas counters that Michigan has defined delivery more broadly than federal law to include “attempt crimes,” and “attempt crimes do not qualify as controlled substance offenses.” See Havis, 927 F.3d at 387. As we recently clarified, however, the definition of delivery used under Michigan (and federal) law—again, “the actual, constructive, or attempted transfer of a controlled substance“—does not include “attempted delivery.” Garth, 2020 WL 3969283, at *3. Instead, it includes only “attempted transfer.” And an attempted transfer qualifies as a completed delivery. Id. That makes the definition here different than the one in Havis, where the parties agreed that the statute in question—Tennessee‘s delivery statute—proscribed attempted delivery. 927 F.3d at 385. And Havis did not hold that the parties’ shared assumption was correct; instead, the court accepted that assumption for the purpose of deciding the case. See Garth, 2020 WL 3969283, at *3. Havis therefore does not support a different outcome here.
The district court‘s judgment is affirmed.