UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DONALD CORY MYERS, Defendant-Appellant.
No. 18-5099
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
June 3, 2019
19a0112p.06
Before: GRIFFIN, WHITE, and BUSH, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Appeal from the United States District Court for the Eastern District of Tennessee at Winchester. No. 4:17-cr-00005-1—Travis R. McDonough, District Judge. Argued: January 31, 2019. Decided and Filed: June 3, 2019.
ARGUED: Gianna Maio, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Gianna Maio, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.
HELENE N. WHITE, Circuit Judge.
Defendant-Appellant Donald Myers challenges his 180-month sentence imposed under the Armed Career Criminal Act (ACCA) based on two prior Tennessee convictions for initiation of a process intended to result in the manufacture of methamphetamine. Myers argues that the Tennessee initiation offense is not a serious drug offense under the ACCA. We AFFIRM.
I. Background
A. Factual Overview
On August 24, 2016, Myers entered Kelly Sullivan’s home without permission, pulled out a gun, pointed it at Sullivan, and demanded drugs. Sullivan told Myers that she had drugs in her car and the two went outside. Once outside, Sullivan saw her neighbor Kristy Baker and attempted to whisper to her to call the police. Myers then grabbed Sullivan and told Baker, “if you value this woman’s life, you will get me drugs.” (R. 28, PID 91.) Baker ran from the scene and called the police, who soon arrived and arrested Myers.
Myers pleaded guilty to being a felon in possession of a firearm, a violation of
At sentencing, Myers objected to his classification as an armed career criminal, arguing that initiating a process intended to result in the manufacture of methamphetamine is not a
II. Discussion
A. Standard of Review and Applicable Law
The court reviews de novo whether a prior conviction is a “serious drug offense” under the ACCA. United States v. Stafford, 721 F.3d 380, 395-96 (6th Cir. 2013).
To determine whether a particular offense qualifies as a serious drug offense, the court applies a “categorical approach,” which looks “only to the statutory definitions—i.e., the elements—of a defendant’s prior offenses, and not to the particular facts underlying those convictions.” Descamps v. United States, 570 U.S. 254, 261 (2013) (internal quotation marks and citation omitted). Further, the inquiry turns on the elements of the offense at issue, and not the label state law places on it. Taylor v. United States, 495 U.S. 575, 588-89 (1990) (“Congress intended that the enhancement provision [of the ACCA] be triggered by crimes having certain specified elements, not by crimes that happened to be labeled ‘robbery’ or ‘burglary’ by the laws of the State of conviction.”).
At issue is whether the district court properly applied the ACCA sentence enhancement,
(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).
(i) an offense under the Controlled Substances Act (
21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46, for which a maximum term of imprisonment of ten years or more is prescribed by law; or(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (
21 U.S.C. 802 )), for which a maximum term of imprisonment of ten years or more is prescribed by law.
The state offense at issue, the initiation of methamphetamine manufacture, is defined by
(a) It is an offense for a person to knowingly initiate a process intended to result in the manufacture of any amount of methamphetamine.
(b) It shall not be a defense to a violation of this section that the chemical reaction is not complete, that no methamphetamine was actually created, or that the process would not actually create methamphetamine if completed.
(c) For purposes of this section, “initiates” means to begin the extraction of an immediate methamphetamine precursor from a commercial product, to begin the active modification of a commercial product for use in methamphetamine creation, or to heat or combine any substance or substances that can be used in methamphetamine creation.
These are the only means by which a defendant can be convicted of initiation of methamphetamine manufacture process under Tennessee law.
B. Analysis
A state conviction qualifies as “a serious drug offense” if it is an offense “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (
1. United States v. Eason
This court recently held in United States v. Eason, 919 F.3d 385 (6th Cir. 2019), that the related Tennessee offense of promoting methamphetamine manufacture,
The panel noted that most other circuits have interpreted involving “as an ‘expansive term,’ which goes beyond the enumerated offenses and ‘requires only that the conviction be related to or connected with drug manufacture, distribution, or possession, as opposed to including those acts as an element of the offense.’” Id. at 390-91 (quoting United States v. Bynum, 669 F.3d 880, 886 (8th Cir. 2012) (internal quotation omitted)); (citing United States v. Gibbs, 656 F.3d 180, 185 (3d Cir. 2011) (“In adopting this position, we conform with all courts of appeals that have addressed the scope of the definition of a serious drug offense.”); United States v. Vickers, 540 F.3d 356, 365 (5th Cir. 2008) (“[I]nvolving means related to or connected with.” (citation and internal quotation marks omitted)); United States v. Alexander, 331 F.3d 116, 131 (D.C. Cir. 2003) (citing “related to or connected with” language); United States v. King, 325 F.3d 110, 113-114 (2d Cir. 2003) (“[I]nvolving has expansive connotations ... encompassing ... offenses that are related to or connected with [distributing, manufacturing, or possessing.]”)). But, the Eason court also observed that the term “involving” has its limits, and that while the term “is not to be too narrowly read, it also is not to be too broadly read.” Id. (quoting United States v. McKenney, 450 F.3d 39, 45 (1st Cir. 2006) (explaining that “[n]ot all offenses bearing any sort of relationship with drug manufacturing, distribution, or possession with intent to manufacture or distribute will qualify as predicate offenses under ACCA. The relationship must not be too remote or tangential.”)).
Here, the conduct prohibited [] relates to and is connected with the manufacture of methamphetamine. Methamphetamine can be made largely from products purchased over the counter. . . . Thus, the purchase of those ingredients is often an essential first step in the drug’s manufacture. And to ensure that the statute criminalizes only those purchases that relate to manufacture—for our purposes, that they are not too tangential from manufacture—the Tennessee legislature requires more: a person must purchase the ingredient with knowledge that it will be used to produce methamphetamine, or with a “reckless disregard of [the ingredient’s] intended use.”
The Eason panel determined that both the minimal mens rea required (reckless disregard of the ingredient’s intended use) and the action required (purchasing the prerequisite ingredient) are sufficiently connected to the “methamphetamine’s ‘production, preparation, propagation, compounding or processing’” to make the promotion offense an offense that “involves” the manufacture of methamphetamine under the ACCA. Id. at 392 (quoting
2. Whether the Initiation of Methamphetamine Manufacture Process Is a Serious Drug Offense Under the ACCA
Although Myers’s prior convictions were of the initiation statute, rather than the promoting statute, Eason dictates the outcome here. Myers argues that a person could be convicted under the Tennessee initiation statute without possessing, distributing, or “actually starting the process of manufacturing” any controlled substance under
The initiation statute here requires that a person “knowingly initiate a process intended to . . . manufacture . . . methamphetamine,” which is accomplished by “begin[ning] the extraction of an immediate methamphetamine precursor from a commercial product,” “begin[ning] the active modification of a commercial product for use in methamphetamine creation,” or “heat[ing] or combin[ing] any substance or substances that can be used in methamphetamine creation.”
Myers is correct that a defendant could be convicted under the initiation statute although “no chemical reaction would likely result, no controlled substances would be involved, and certainly no methamphetamine would be produced.” (Appellant Br. at 17). However, as Eason made clear, the Tennessee legislature’s intent to criminalize steps in the methamphetamine manufacturing process, including actions short of the actual manufacture of the drug, does not remove the offenses from the ambit of the ACCA, provided they still involve the manufacture of the drug. Further, Tennessee cases have held that the initiation offense must be committed knowingly. In State v. Banks, No. M2008–01823–CCA–R3–CD, 2010 WL 2943115, at *7 (Tenn. Crim. App. July 26, 2010), the court explained:
Because the specific steps which comprise the initiation offense must be undertaken ‘knowingly,’ a person who inadvertently heats or mixes substances which are commonly used in the manufacture of methamphetamine, or purchases an over-the-counter drug containing a prohibited substance would not be guilty of a crime under the terms of the statute unless the state proved that the conduct was undertaken with the intent to initiate a process that would lead to the production of methamphetamine.
III. Conclusion
For the reasons above, we AFFIRM the district court’s application of the ACCA’s sentencing enhancement.