UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TIMMY L. FIELDS, Defendant-Appellant.
No. 20-5521
United States Court of Appeals for the Sixth Circuit
November 23, 2022
22a0253p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Argued: June 23, 2021. Appeal from the United States District Court for the Eastern District of Kentucky at London. No. 6:19-cr-00029-1—Robert E. Wier, District Judge.
COUNSEL
ARGUED: Michael J. Stengel, MICHAEL J. STENGEL, PC, Memphis, Tennessee, for Appellant. Andrew C. Noll, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Michael J. Stengel, MICHAEL J. STENGEL, PC, Memphis, Tennessee, for Appellant. Andrew C. Noll,
WHITE, J., delivered the opinion of the court in which MURPHY, J., joined, and ROGERS, J., joined in part. MURPHY, J. (pp. 34–45), delivered a separate concurring opinion in which WHITE, J., joined except as to Part II.A. ROGERS, J. (pp 46–48), delivered a separate opinion concurring in part and dissenting in part.
AMENDED OPINION
HELENE N. WHITE, Circuit Judge. Defendant Timmy Fields appeals his twenty-five-year mandatory-minimum sentence enhancement imposed for his having committed two prior “serious drug felon[ies].” Fields challenges the procedure used to impose his enhancement and argues as well that neither prior conviction was for a “serious drug felony.” Most of Field’s challenges lack merit, but we agree that one of the predicate prior convictions was not for a “serious drug felony.” Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for resentencing.
I. BACKGROUND
In January 2020, a jury convicted Defendant Timmy Fields of possessing 500 grams or more of methamphetamine with intent to distribute, in violation of
A. Relevant Statutory and Legal Background
Section 841(b)(1)(A) provides for a twenty-five-year-minimum sentence enhancement if a defendant commits certain violations of
A “serious drug offense,” as relevant here, means a state-law offense “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in [
Another statutory provision,
Section 851(c) provides that if the defendant “denies any allegation” in the § 851 notice or claims that any conviction is invalid, the defendant “shall file a written response[.]”
The Sixth Amendment requires that juries determine any facts (except the fact of a conviction) that increase a statutory maximum or mandatory-minimum punishment. Alleyne v. United States, 570 U.S. 99, 103, 111 n.1 (2013); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Fields argues Alleyne requires that the First Step Act’s incarceration facts—“the offender served a term of imprisonment of more than 12 months [for the prior offense]” and “the offender’s release from any term of imprisonment was within 15 years of the commencement of the instant offense,”
B. Factual Background
In April 2019, Kentucky police pulled Fields over and discovered 985 grams of methamphetamine in his vehicle. A few months later, a federal grand jury indicted Fields with one count of possession of 500 grams or more of methamphetamine with intent to distribute, in violation of
Before trial, the government filed a § 851 notice, stating its intent to seek a sentence enhancement based on these two prior convictions. The government also filed a pretrial motion—which Fields did not oppose at the time—to bifurcate the trial into two phases. In the first phase, the government would seek to prove the substantive § 841 drug offense. If Fields were found guilty, the trial would move to a second phase, where the government would seek to prove that Fields had previously been convicted of two serious drug felonies. The court granted the unopposed motion.
1. The Trial
The final pretrial conference took place on January 14, 2020, the day before trial. It largely focused on what prior-conviction facts, if any, should go to the jury if the second phase was reached. The district court and government took the position that the Sixth Amendment required the incarceration-related facts (length of incarceration and recency of release) to be decided by the jury. But counsel for Fields argued that “none of it is a jury question,” raising the same argument noted above: that under Supreme Court precedent, the additional incarceration-related facts had to be found by a jury, but that § 851 required the court to find them. R. 111 PID 794. Thus, counsel argued, if Fields were convicted, he should “[j]ust be subject to the penalty without any enhancement for prior convictions.” Id. PID 797.
Trial began the next day. The government put on all its guilt-phase proofs on day one. At the end of the first day, the parties conferred with the court to discuss the § 851 issue further. The court said that if a second phase was necessary, it would likely ask the jury to find whether Fields was convicted of each prior offense and determine, for each, whether he served over a year in prison and was released within fifteen years of his current offense. Counsel for Fields repeated his objection, to which the court responded that the Sixth Amendment, not § 851, determines what questions go to the jury.2 The court added that its approach may leave Fields
with a statutory argument but would likely prevent him from raising a subsequent Sixth Amendment challenge on appeal:
The Court: . . . Well, you know, I understand strategically your argument. I do want to make it clear that I’m extending to the defendant kind of the option of having what I think is the most robust Sixth Amendment protection he can have, and that is for the jury to decide all of it. Down the road, if he’s convicted and the jury finds what it finds, if he’s got an argument to make, it is going to be that the statutory authority, or clash, as you pointed out, somehow deprives
the Court of the power to honor the Sixth Amendment in the way that I’m proposing. It is not going to be there was a violation of the Sixth Amendment by the Court making a finding that the jury could make, because I’m giving him the chance to have it all decided by the jury. Just to make that clear. Mr. Hoskins: We recognize that, Your Honor.
R. 107 PID 557-58.
On the second day of trial, the jury deliberated and returned a guilty verdict on the substantive § 841 offense. During deliberations, the court again recognized that Fields “ha[s] an overall objection” to the second-phase jury instructions. R. 108 PID 564. Fields’s counsel noted that other than the general objection regarding the appropriate factfinder, “Fields is not going to contest that those two Laurel Circuit Court convictions are him.” Id. PID 564. Fields, his lawyer, and government counsel then submitted a stipulation that Fields was convicted of the Meth-Precursor Offense on December 27, 2006 and was convicted of the Trafficking Offense on January 24, 2013. The district court then engaged in the mandated § 851(b) colloquy with Fields, asking him whether he affirmed or denied that he was convicted of these two previous offenses. Fields affirmed that he was.
A brief second phase then began, with the government presenting proof that for both prior convictions, Fields served more than a year in prison and was released within fifteen years from the date of his current offense. Before the jury deliberated, at the close of evidence, Fields’s lawyer made an oral motion for judgment of acquittal, arguing that neither prior offense met the legal definition of “serious drug offense.” The court denied the motion but noted that Fields had preserved the issue and could develop his arguments prior to sentencing. In a special verdict form, the jury found both factual predicates were satisfied for each prior conviction.
2. Sentencing
After trial had concluded and before sentencing, Fields filed an “Objection to § 851 Notice” and an objection to his pre-sentence report, both focusing exclusively on whether his prior offenses were “serious drug offenses,” and neither raising any factual disputes regarding the length or recency of his incarceration for the two prior convictions. Regarding the Meth-Precursor Offense, he argued that Shular v. United States, 140 S. Ct. 779 (2020), required the court to ask whether the offense “necessarily entail[ed]” any of the conduct described in
During argument, Fields’s counsel emphasized that it was possible to violate the meth-precursor statute before ever beginning the manufacturing process and that the offense did not necessarily entail the predicate conduct. The government responded that the statute’s requirement that the defendant possess a methamphetamine ingredient with intent to manufacture means that it necessarily entails manufacturing. The district court expressed some skepticism, see R. 109 PID 653 (“[C]an you call something that involves intent to use a chemical as a precursor to manufacturing part of manufacturing? Is that logical?“), and posed a hypothetical to test the theory:
The Court: So if somebody is in a drugstore and shoplifts a pack of Sudafed with the intent to take it to a cook, the
second that shoplifting occurs, you would consider that manufacturing? [AUSA] Mr. Rabold: Not necessarily. I mean, that’s possession of a precursor, but it requires that there is the intent to use it as a precursor of methamphetamine. And that’s just - -
The Court: That’s what I said.
Mr. Rabold: Yes.
The Court: So in that context, that person is guilty of an offense involving manufacturing?
Mr. Rabold: I would say so, just based on the plain reading of
KRS 218A.1437 . That if they possessed that precursor with the intent of using it as a precursor to manufacturing methamphetamine, then that person would then be guilty of that offense.
R. 109 PID 653-54. The court ultimately sided with the government, reasoning that our decision in United States v. Eason, 919 F.3d 385 (6th Cir. 2019), which found a similar Tennessee conviction to be a serious drug offense, “decides the issue.” R. 109 PID 665. The court noted that Shular may arguably “shrink[]” Eason’s analysis, as the latter relied on a “[p]retty broad reading” of
Applying the statutory enhancement, the district court sentenced Fields to 300 months in prison (the bottom of the mandatory range), noting that “[w]ithout that mandatory minimum,” it would have imposed a lower sentence. Id. PID 710. The district court also issued two written orders explaining its reasoning on the § 851 issue and “serious drug offense” issues, respectively. Fields timely appealed.
II. STANDARD OF REVIEW
Fields raises several legal challenges to his sentencing enhancement, some for the first time on appeal. We review the ones raised below de novo. See United States v. Mateen, 764 F.3d 627, 630 (6th Cir. 2014) (en banc) (per curiam); United States v. Green, 654 F.3d 637, 649 (6th Cir. 2011); Eason, 919 F.3d at 388. But we apply plain-error review to arguments first raised on appeal, United States v. Cavazos, 950 F.3d 329, 334 (6th Cir. 2020), requiring (1) an error; that (2) was “plain” (i.e., obvious or clear); (3) affected the defendant’s substantial rights; and (4) affected the fairness, integrity, or public reputation of the judicial proceedings. Id. We first address Fields’s challenges to the district court’s § 851 procedure. We then address whether his prior convictions were “serious drug offenses.”
III. CHALLENGES TO § 851 PROCEDURE
Fields raises four challenges to the procedure used to impose his enhancement. He first argues that § 851(b) facially violates the Fifth Amendment by compelling defendants to testify regarding previous convictions; second, that § 851(c) facially violates the Sixth Amendment by requiring judges to determine facts—the length and recency of incarceration—that the Constitution requires to be decided by a jury; third, that the court violated § 851 by sending those facts to the jury here; and finally, that the court violated the Sixth Amendment by not requiring the jury to decide whether his prior convictions were “final.” We take these arguments in order.
A. The Fifth Amendment Challenge
Fields first argues that § 851(b) violates a defendant’s Fifth Amendment right against self-incrimination by requiring that courts ask defendants to “affirm or deny” prior convictions and warn defendants that they may forfeit challenges they do not raise prior to imposition of sentence. Fields Br. at 17-18. He did not raise this
The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself[.]”
Fields never asserted the privilege. Despite being informed of the right not to testify, Fields did not invoke that right when asked if he affirmed or denied his prior convictions. Indeed, prior to being asked that question, he voluntarily stipulated that he had been convicted of those offenses. Fields thus did not suffer a Fifth Amendment violation, and his challenge fails. See Garner v. United States, 424 U.S. 648, 653 (1976) (“[A] witness who reveal[s] information instead of claiming the privilege los[es] the benefit of the privilege.“); see also United States v. Jones, 447 F. App’x 319, 326 (3d Cir. 2011) (rejecting “Jones’s facial challenge to
B. The Sixth Amendment Challenge
Fields next argues that § 851(c) is facially unconstitutional under the Sixth Amendment because it requires the judge to decide facts—the length and recency of incarceration—that should be decided by the jury.
In general, the Sixth Amendment requires the jury to decide any fact that increases the statutory maximum or mandatory-minimum sentence available for a crime. Alleyne, 570 U.S. at 103; Apprendi, 530 U.S. at 490. But there is an exception to this rule for the “fact of conviction.” This exception stems from Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998). The Court has described Almendarez-Torres as an “exceptional departure from” and “narrow exception to the general rule.” Apprendi, 530 U.S. at 487, 490; see also Alleyne, 570 U.S. at 111 n.1 (“In Almendarez-Torres[], we recognized a narrow exception to this general rule for the fact of a prior conviction.“); United States v. Haymond, 139 S. Ct. 2369, 2377 n.3 (2019) (plurality) (stating that Almendarez-Torres provides a “narrow exception[] to Apprendi’s general rule“).
Here, the district court held—and the parties seem to assume—that the Sixth Amendment would require the jury to decide whether, for each prior conviction, Fields was incarcerated for over a year and released within fifteen years of the instant offense. The basis for the district court’s view is intuitive. Alleyne and Apprendi described the Almendarez-Torres exception as “narrow” and applying only to the fact of conviction, and the First Step Act’s incarceration facts extend beyond the fact of conviction. Further, in justifying the Almendarez-Torres exception, the Court has explained that prior convictions
But the Court has also sometimes used a broader justification for the Almendarez-Torres exception that cuts the other way. The Court has justified the exception on the basis that, traditionally, facts involving recidivism have been within the province of judicial fact-finding and that these facts are usually unconnected with the substantive offense at issue. See Almendarez-Torres, 523 U.S. at 243 (noting that “the sentencing factor at issue here—recidivism—is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence“); Jones, 526 U.S. at 235, 248-49 (making similar point); Apprendi, 530 U.S. at 488 (pointing out that Almendarez-Torres emphasized “the fact that recidivism ‘does not relate to the commission of the offense’” (quoting Almendarez-Torres, 523 U.S. at 244)). If Almendarez-Torres creates an exception more broadly for “recidivism,” there is a case for saying that the incarceration-related facts are a good fit for the exception. They arguably relate only to recidivism, and they are completely unconnected to the current offense.
Two district court decisions directly addressing the Sixth Amendment implications of the new “serious drug felony” incarceration facts have reached opposite conclusions. The difference in their reasoning tracks the separate rationales described above. The district court in our case held that the jury must decide these facts, emphasizing the Court’s clear statements that the Almendarez-Torres exception is “narrow” and limited solely to the “fact of conviction.” See United States v. Fields, 435 F. Supp. 3d 761, 764 (E.D. Ky. 2020) (stating that these facts amount to “empirical issues, which rise or fall based on events occurring only after the conviction,” and thus “by definition are beyond the ‘fact’ of conviction (the narrow Almendarez-Torres harbor)“); see also United States v. Beal, No. 18-00070, 2021 WL 4524159, at *3 n.6 (D. Haw. Oct. 4, 2021) (stating “that the more ‘conservative approach’ would be to put the question of the serious drug felony determination to the jury before its dismissal“). But a North Carolina district court recently held the opposite, relying more heavily on the “recidivism” justification. See United States v. Lee, 2021 WL 640028, at *3-7 (E.D.N.C. Feb. 18, 2021) (“The exception for the fact of a prior conviction is based in the recognition that recidivism does not relate to the commission of the offense.” (internal quotation marks omitted)); see also United States v. Fitch, No. 19-CR-30, 2022 WL 1165000, at *2 (N.D. Ind. Apr. 19, 2022) (concluding that, although the First Step Act added new facts to consider, those facts are still facts of a prior conviction).
Though both Fields and Lee give the issue thoughtful consideration, the district court’s view in our case appears more persuasive. Although one can find strands of reasoning supporting a broader reading of Almendarez-Torres, the Court’s repeated descriptions of Almendarez-Torres as “narrow” and limited to the “fact of conviction” cut against this approach. But ultimately, we need not (and do not) definitively decide this constitutional issue because even assuming that the incarceration-related facts must be decided by a
The basis of Fields’s constitutional argument is that § 851(c) requires the judge to decide factual questions (length and recency of incarceration) that must go to the jury under Alleyne. But those facts were actually submitted to the jury here. Fields therefore suffered no personal constitutional violation. Instead, his argument is based on a counterfactual hypothetical: he argues that under the correct reading of § 851, the judge should have decided these facts himself, and that had he done so, he would have violated the Sixth Amendment. That, however, did not happen here. Although Fields has a potential statutory argument—that the court did not follow § 851—the district court’s application of § 851 did not produce a Sixth Amendment violation.
Fields’s facial challenge also fails. Facial challenges only succeed if the challenger can show “that no set of circumstances exists under which the [challenged statutory provision] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). Fields cannot do so. Section 851 applies to all conviction-related enhancements imposed on those convicted of an offense under
applied” challenge (to the extent he brings one), because the jury decided the facts Fields said it needed to decide.
C. The § 851 Statutory Challenge
The closer question is whether the district court failed to follow § 851. “The requirements delineated in § 851 are mandatory, and a district court cannot enhance a defendant’s sentence based on a prior conviction unless” they are satisfied. United States v. King, 127 F.3d 483, 487 (6th Cir. 1997); see also Carachuri-Rosendo v. Holder, 560 U.S. 563, 569 n.6 (2010) (“Although § 851’s procedural safeguards are not constitutionally compelled, they are nevertheless a mandatory feature of the Controlled Substances Act.” (citation omitted)); United States v. LaBonte, 520 U.S. 751, 754 n.1 (1997) (“[I]mposition of an enhanced penalty is not automatic. . . . If the Government does not file [a] notice [under § 851(a)(1)] . . . the lower sentencing range will be applied even though the defendant may otherwise be eligible for the increased penalty.“).
The question is whether § 851 required the district court to decide the incarceration-related facts here—i.e., whether it precluded the district court from sending those factual questions to the jury in the post-guilt phase of the bifurcated trial proceeding. Before addressing the parties’ arguments on that question, we briefly review § 851’s statutory scheme.
As relevant here, § 851(a)(1) provides that “[n]o person who stands convicted of an offense under this part [
Section 851(c) provides that if the defendant “denies any allegation of the information of prior conviction, or claims that any conviction alleged is invalid, he shall file a written response to the information” and serve the government with a copy.
Section 851(d)(1) provides that the court “shall proceed to impose sentence” upon the defendant if the defendant fails to respond to the § 851 notice “or if the court determines, after hearing, that the person is subject to increased punishment by reason of prior convictions[.]”
2.
The parties first dispute whether § 851 applies to the incarceration-related facts at all. The government argues that § 851’s text is limited to questions involving the validity of previous convictions and “does not encompass the resolution of any term-of-imprisonment-related questions at all.” Gov’t Br. at 18. In support of this argument, it cites portions of § 851(a)(1),
(b), and (d)(2) that refer to challenges implicating the validity of convictions, as well as § 851’s title (“[p]roceedings to establish prior convictions.“).4 We are not persuaded.
Section 851(c)(1) refers to a “hearing to determine any issues raised by the [defendant’s] response which would except the [defendant] from increased punishment.” If a defendant has not served over a year in prison or was released more than fifteen years before the present offense, those facts “except [him] from increased punishment.” If raised, they fit within § 851’s scope.
3.
The parties next dispute whether § 851 prevents a court from doing what the court did here: i.e., sending the incarceration-related facts to the jury via a bifurcated proceeding at trial. While we do not agree with the government’s precise framing, we ultimately agree that the answer to this close question is “no.”
The government argues that nothing in § 851 “mandates that the [district] court independently make factual findings, nor prevents the district court from adopting a jury’s determinations.” Gov’t Br. at 20. We have trouble with both assertions. To start, § 851(c)(1) does require the court, not a jury, to make certain findings. It requires the court to hold a hearing to determine “any issues” raised by a defendant’s written § 851 response, contemplates that this hearing may involve “facts in addition to the convictions to be relied upon,” and provides that the “hearing shall be before the court without a jury and either party may introduce evidence.”
There are two problems with the government’s argument that nothing in § 851 bars the court from adopting the jury’s factual findings, as if they were optional recommendations. First, the court did not purport to “adopt” the jury’s findings here. See R. 72 PID 293 (“These post-conviction factual criteria . . . are for the jury alone to evaluate.“). Second, if the Sixth Amendment requires a jury to decide the incarceration-related facts at issue here—as the government argued below and seems to assume on appeal—there could well be a constitutional problem with concluding that a court could treat a jury’s findings as “recommendations” it could choose to adopt or reject. Under that view, the judge, not jury, would make the final factual determination. That would “reduce[] the jury’s role ‘to the relative importance of low-level gatekeeping.’” United States v. Booker, 543 U.S. 220, 230 (2005) (quoting Jones, 526 U.S. at 244).
Yet a slightly different framing makes the argument more plausible. Nothing in § 851 expressly forbids a court from sending factual questions to a jury during a bifurcated trial merely because they may come up later in a § 851(c) hearing. The statute is silent on what a court can and cannot do during the trial phase of a criminal proceeding. Fields notes that § 851(c)(1) refers to a hearing “before the court without a jury,” and argues that this language expressly precludes the jury’s involvement, adding that in Booker, the Court read
And Fields never explains how the statute extends to prohibit
Because the text does not clearly prohibit what the district court did here, the most Fields can hope to show is that § 851 is capable of competing plausible constructions, including his. But when a “statute is susceptible of ‘two plausible . . . constructions,’ one of which ‘would raise a multitude of constitutional problems, the other should prevail.’” United States v. Erpenbeck, 682 F.3d 472, 476 (6th Cir. 2012) (quoting Clark v. Martinez, 543 U.S. 371, 380-81 (2005)). To the extent that is the case here, this canon cuts against Fields’s reading, which would create constitutional problems that a contrary reading would avoid.6
In sum, we conclude that the district court’s bifurcated procedure in this case did not violate § 851. Nothing in the statute explicitly forbids the district court from submitting to the jury the factual questions it submitted at the point it did so.
D. The “Finality of Conviction” Argument
Fields makes one last challenge to the district court’s procedure. He argues that the district court violated the Sixth Amendment by failing to require the jury to find the “fact” that each of his previous state-law convictions was “final.” Fields Br. at 22. Fields never requested that the jury make such a finding and never raised this argument below. We thus review for plain error.
Fields has not shown that any error was “plain.” He cites no cases adopting his position, and “[a] lack of binding case law that answers the question presented will . . . preclude our finding of plain error.” United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015); see also United States v. Gonzalez, 584 F. App’x 188, 190 (5th Cir. 2014) (“Gonzalez is unable to show a clear or obvious error on the question whether the finality of the prior conviction is an issue beyond the fact of a prior conviction.“) (citing Alleyne, 570 U.S. at 116; Almendarez-Torres, 523 U.S. at 239-47)). The government also points out that Fields has not shown that the error affected his substantial rights, as the plain-error standard requires. Cavazos, 950 F.3d at 334; see Gov’t Br. at 28-29 (“Fields served his years-long sentence for each conviction and was initially released on parole for those convictions in 2010 and 2014, respectively. There is no doubt that his prior convictions long ago became final.” (citation omitted)). Fields fails to contest that point in his reply brief. In short, Fields fails to show that plain error warrants reversal on this argument.
IV. THE “SERIOUS DRUG OFFENSE” CHALLENGES
In his second category of challenges, Fields argues that neither of his prior convictions—both for criminal offenses in Kentucky—qualifies as a “serious drug offense.” His first conviction is the Meth-Precursor Offense: a 2006 conviction for violating Kentucky’s statute prohibiting possession of a methamphetamine precursor with intent to manufacture. The second is the Trafficking Offense: a 2013 conviction for violating Kentucky’s drug-trafficking statute. As relevant here, a “serious drug offense” is “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in [
To assess Fields’s challenges, we use the “categorical approach.” That approach looks only to the statutory definitions of the prior offenses, not the facts underlying each conviction. Eason, 919 F.3d at 388. It asks if the underlying state conviction, “by definition, . . . falls within [the] category” of offenses described by the federal statute. Mellouli v. Lynch, 575 U.S. 798, 805 (2015). We “must presume that the [previous] conviction rested upon nothing
A. The Meth-Precursor Offense
In 2006, Fields was convicted of a first-time violation of
in the first degree.” The meth-precursor statute proscribes “knowingly and unlawfully” possessing certain chemicals with intent to use them as a precursor to manufacturing methamphetamine. Id.
Fields argues that his Meth-Precursor Offense is not a “serious drug offense” because it (1) does not carry a ten-year maximum sentence and (2) does not “necessarily entail” the conduct described in
Because the Meth-Precursor Offense would constitute a “serious drug offense” under Eason‘s broader “relates to or connects with” test, but may not under Shular‘s “necessarily entails” test, our threshold question is which standard applies.
1.
Prior to Shular, most circuits, including ours in Eason, interpreted the word “involving” in
At the same time the “relates to or connects with” line of cases developed, courts considering similar provisions outside the
Post-Shular, several circuits that previously applied (or favorably cited cases applying) the “relates to or connects with” test have recognized that Kawashima‘s “necessarily entails” test now governs in
One panel is usually bound by the ruling of a previous one, but there is an exception to that rule when the Supreme
We are aware of no circuit decisions declining to follow Shular‘s discussion of the “necessarily entails” test on the basis that it was dictum. And some decisions have expressly stated that this discussion was part of Shular‘s holding. See Smith, 983 F.3d at 1223 (“The Supreme Court held that a court determining whether an offense qualifies as a serious drug offense need only consider whether the offense‘s elements ‘necessarily entail’ the types of conduct identified in the ACCA‘s definition rather than engage in a ‘generic-offense matching exercise.‘” (quoting Shular, 140 S. Ct. at 783-84)); United States v. Curry, 833 F. App‘x 328, 329 (11th Cir. 2020) (same). But we note that after Shular stated that the government “correctly” read
Though no party raises it, we can imagine an argument that Shular‘s recognition of party agreement on that definition somehow deprived its discussion of the “necessarily entails” test of any precedential value. A close reading of Shular, however, cuts the other way. It is true that the parties agreed on the definition of “involving,” but they did not agree on the test to apply in
The Court set up and resolved that dispute by describing both parties’ proposed approaches and affirmatively choosing the government‘s test. See id. at 784-85 (“In
The view that Shular‘s holding focused solely on whether
Further, Shular resolved a dispute over whether the generic-offense test or some other test applied. One side said the generic-offense test applied while the other said the Kawashima test applied. The Court said the latter represented a correct reading of the statute. That statement—that Kawashima‘s test is the “correct[]” one—was part of its answer to the central issue raised in the case. That statement was not dictum, see Wright v. Spaulding, 939 F.3d 695, 701 (6th Cir. 2019) (“The decision of the issue must contribute to the judgment[.]“), and, at minimum, is certainly an intervening on-point statement of the Court.13 Further, as Judge Murphy thoughtfully explains in his separate opinion, it is the better understanding of the word “involve.”
We thus conclude that we should follow Shular and now ask whether the elements of Fields‘s state offenses “necessarily entail” conduct described in
Section
Statutory context indicates that
3.
The Kentucky meth-precursor statute prohibits the “unlawful possession” of a “drug product or combination of drug products containing ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers, with the intent to use the drug product or combination of drug products as a precursor to manufacturing methamphetamine or other controlled substance.”
In Kentucky‘s methamphetamine-focused statutory framework, the meth-precursor
The “only difference” between the meth-precursor statute and the chemical-possession subsection of the methamphetamine-manufacturing statute is that “the methamphetamine-manufacturing statute requires possession of additional contraband beyond that necessary for a possession-of-a-methamphetamine-precursor conviction.” Sevier v. Commonwealth, 434 S.W.3d 443, 451-52 (Ky. 2014) (noting that the methamphetamine-manufacturing statute‘s chemical-possession prong has, for practical purposes, the same “intent” element as the meth precursor statute and “simply requires proof of an additional fact“—“possession of an additional chemical“).
The Kentucky Supreme Court has stated that both the meth-precursor statute and “chemical-possession” prong of the methamphetamine-manufacturing statute can be violated before it is even possible to begin the manufacturing process. See Kotila v. Commonwealth, 114 S.W.3d 226, 240 (Ky. 2003) (“KRS § 218A.1437(1) . . . [was] intended to fill the gap where there is proof of possession of a methamphetamine precursor . . . but not proof of possession of . . . other chemicals necessary to manufacture methamphetamine.“)16; Sizemore v. Commonwealth, 2011 WL 317474 at *3 (Ky. Jan. 27, 2011) (noting that
4.
With that understanding, we turn to the parties’ arguments. The government argues that the meth-precursor statute requires intent to manufacture and therefore necessarily entails manufacturing. Fields
To start, Kentucky‘s Supreme Court has specifically recognized that the meth-precursor statute was meant to apply when a defendant was not yet even capable of manufacturing methamphetamine because he did not yet possess the materials necessary to do so. Kotila, 114 S.W.3d at 240. It is hard to say that a statute tailored to situations where manufacture is not yet possible “necessarily entails” manufacturing conduct. Indeed, when a defendant possesses more than one methamphetamine ingredient, the harsher
These statements from the Kentucky Supreme Court show that the answer to our dispositive question—whether a violation of
The government asserts that because a defendant convicted of the Meth-Precursor Offense must have an intent to manufacture, “the necessary result or consequence of his possession [is] the manufacture of methamphetamine.” Gov‘t Br. at 35. This logic does not hold together. Intent to take an action does not necessarily mean the action will occur. The shoplifter example bears that out. Because the shoplifter was arrested, no manufacturing process ever began.18
Believing that Eason decides the issue, the district court reached the opposite conclusion. To be sure, Eason is analogous; it found a conviction under a similar state statute to be a “serious drug offense.” 919 F.3d at 387-92. But Eason asked if that offense “related to or connected with” manufacturing, a far broader (and more elastic) question. See Mellouli, 575 U.S. at 811-12 (noting that phrases like “relating to[] are broad and indeterminate” and “stop nowhere” when “extended to the furthest stretch of their indeterminacy” (citations, alterations, and internal quotation marks omitted)).19 Possessing a
The government makes one last argument: it points out that another provision of the “serious drug offense” definition covers any offense under the Controlled Substances Act (CSA) with a maximum sentence of ten or more years,
Again, we are not persuaded. We are interpreting
In short, it is possible to violate the meth-precursor statute without committing manufacturing conduct. Accordingly, the Meth-Precursor Offense does not “necessarily entail” manufacturing under
B. The Trafficking Offense
Fields also argues that his second state-court conviction—for first degree
Finally, in a barely developed argument, Fields argues that the Kentucky trafficking statute is overly broad because Kentucky‘s definition of “trafficking” includes “dispensing,” which is “excepted from
V. CONCLUSION
In sum, we reject Fields‘s challenges to the procedure used to impose his enhancement and his argument that the Trafficking Offense was not a “serious drug offense.” We agree with Fields that the Meth-Precursor Offense was not a “serious drug offense” and therefore cannot serve
United States v. Fields
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CONCURRENCE
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MURPHY, Circuit Judge, concurring. I concur in Judge White‘s excellent opinion for the court. I write to add a few more thoughts on whether we should follow the narrow interpretation of the word “involving” from Shular v. United States, 140 S. Ct. 779 (2020), or stick with the broad interpretation from United States v. Eason, 919 F.3d 385 (6th Cir. 2019). I find the issue difficult. We have a duty to follow a published precedent like Eason, and its reading comports with the near consensus of courts that considered this issue before Shular. Yet Shular‘s reasoning calls Eason into doubt. And the federal government—which appears to have changed positions between Eason and Shular—does not ask us to follow Eason‘s broad interpretation as a precedential matter. At day‘s end, I view Shular‘s reading as the correct one. And because Shular allows us to depart from Eason under our precedent on precedent, we should adopt that reading here.
I
Several federal drug laws increase the length of a defendant‘s sentence if the defendant has one or more prior convictions for a “serious drug felony,” a phrase that incorporates the Armed Career Criminal Act‘s definition of “serious drug offense.”
This case brings us to a fork in the road on this question. Down one path, we could continue to follow Eason. That decision treated these types of incomplete crimes as “serious drug offenses” even if a defendant could commit them without manufacturing or distributing drugs (or possessing drugs with the required intent). 919 F.3d at 390-92; see also United States v. Myers, 925 F.3d 881, 884-86 (6th Cir. 2019); Young v. Quintana, 2019 WL 11863648, at *4 (6th Cir. May 15, 2019). Eason considered a Tennessee law that barred a person from buying a methamphetamine ingredient with reckless disregard as to whether the ingredient would be used to make methamphetamine. 919 F.3d at 388-89. There, we interpreted the statutory definition‘s key word—involving—to mean “related to or connected with[.]” Id. at 390 (citation omitted). And while a defendant could commit the crime by merely buying an ingredient (without starting the manufacturing process), we found that this conduct was related to manufacturing because it was “an essential first step to the drug‘s manufacture.” Id. at 391. This broad reading adopted the government‘s position in Eason: “The test should be whether the prior conviction was ‘related to or connected with’ drug manufacture, distribution, or possession with intent to manufacture or distribute, as long as the relationship is
Down the other path, we could follow language from Shular. That language suggests that we should exclude these inchoate crimes from the definition of “serious drug offense” if a defendant could commit them without manufacturing or distributing drugs (or possessing them with the required intent). See 140 S. Ct. at 785. Shular considered the process that courts should follow to decide whether a state offense qualifies as a “serious drug offense.” Id. at 782. The defendant argued that courts should identify the elements of a “generic” manufacturing, distributing, or possessing offense and ask whether the defendant‘s crime contains all elements of this court-identified “generic” crime. Id. The government responded that courts should ask simply whether the defendant‘s crime will always “involve” the listed behavior—manufacturing drugs, distributing drugs, or possessing drugs with the required intent. Id. The Court adopted the government‘s view because, unlike extortion or burglary, things like “manufacturing” or “distributing” are not “generic” offenses with well-established elements. Id. at 785. The Court added that the statute‘s use of the verb “involve” (instead of “is“) more naturally called for a conduct-based approach than a generic-offense approach. Id. When making this latter point, the Court noted that both parties (including the government) agreed that “involve” narrowly means “necessarily requir[e]” (not “relate to“). Id. (citation omitted). The government thus abandoned in Shular the broad definition of “involve” it asked our court to adopt in Eason.
II
Which path should we choose now? Should we continue to apply Eason‘s broad definition (“relate to“)? Or should we switch to Shular‘s narrow definition (“necessarily entail” or “necessarily require“)? This question raises tricky procedural and substantive questions.
A
Two factors suggest that we should stick with Eason‘s broad reading. First, precedential concerns point that way. We generally must follow a published precedent like Eason (whether right or wrong) until the Supreme Court or our en banc court jettisons it. See Salmi v. Sec‘y of Health & Hum. Servs., 774 F.2d 685, 689 (6th Cir. 1985). And it is not obvious to me that Shular squarely confronted the key issue in this case, let alone rejected the broad definition of “involve” in favor of the narrow one. Nothing in Shular‘s bottom-line holding—that courts should decide whether a state crime is a “serious drug offense” using a conduct-based approach, not a generic-offense approach—seems to have turned on this subtle difference in the meaning of “involve.” 140 S. Ct. at 785. Shular‘s chosen conduct-based approach makes sense whether that word means “relate to” or “require.” Its references to the narrower definition thus do not appear critical to the question presented or the ultimate result.
This distinction also might not have mattered to the outcome in Kawashima v. Holder, 565 U.S. 478 (2012). That case concerned a statute that required a court to determine whether a prior crime “involv[ed] fraud or deceit.” See id. at 485. The Court noted in one sentence that this phrase covered “offenses with elements that necessarily entail fraudulent or deceitful conduct.” id. at 483-84. It went on to hold that the specific crimes at issue necessarily entailed deceit even if they did not include deceit as a formal element. id. at 484-85. The Court
Given the ultimate holdings of these cases, I doubt that the Court itself would feel bound by Shular‘s references to the “necessarily entails” or “necessarily requires” test if it addresses this case‘s question about the meaning of “involving.” After all, the Court has repeatedly said that it does not “dissect” every sentence of its opinions as if they were enacted statutes that have passed through both houses of Congress. St. Mary‘s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993); see Borden v. United States, 141 S. Ct. 1817, 1833 n.9 (2021) (plurality opinion); Cent. Green Co. v. United States, 531 U.S. 425, 431 (2001); Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979). Still, I agree that Shular‘s statements (even if dicta) cast enough doubt on Eason‘s reading to allow us to reassess that decision—as the majority opinion explains when discussing our caselaw on the requirement to follow prior precedent. See In re Baker, 791 F.3d 677, 682-83 (6th Cir. 2015); cf. Gearlds v. Entergy Servs., Inc., 709 F.3d 448, 452 (5th Cir. 2013); Carpenters Loc. Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 141-42 (1st Cir. 2000).
Second, besides the lack of an unambiguous Supreme Court holding giving the word “involve” a narrow construction, a practical concern favors Eason‘s broader reading. Eason was no outlier. If we depart from that decision, we depart from nearly every other court in the country—at least at the present time. Before Shular, a near-unanimous judicial consensus interpreted “involve” broadly to mean “related to” or “connected with.” See Eason, 919 F.3d at 390-91. These courts thus held that many similar inchoate offenses qualified as “serious drug offenses” even though a defendant could commit them without undertaking any manufacturing or distributing. See, e.g., United States v. McKenney, 450 F.3d 39, 42-45 (1st Cir. 2006) (drug conspiracy); United States v. King, 325 F.3d 110, 112-15 (2d Cir. 2003) (attempted drug crime); United States v. Daniels, 915 F.3d 148, 152-67 (3d Cir. 2019) (attempted drug crime); United States v. Winbush, 407 F.3d 703, 705-08 (5th Cir. 2005) (attempted drug crime); United States v. Williams, 931 F.3d 570, 575-76 (7th Cir. 2019) (financing drug manufacturing or delivery); United States v. Coleman, 700 F.3d 329, 339 (8th Cir. 2012) (attempted drug crime); United States v. Alexander, 331 F.3d 116, 131 (D.C. Cir. 2003) (attempted drug crime). (The Fourth Circuit reached a similar result for similar statutory language. See United States v. James, 834 F.2d 92, 93 (4th Cir. 1987).)
As the majority opinion rightly notes, other courts have begun to cite Shular‘s “necessarily require” or “necessarily entail” test when discussing the word “involve” in the statutory definition of “serious drug offense” or similar definitions. See, e.g., United States v. Sandoval, 6 F.4th 63, 108-09 (1st Cir. 2021); United States v. Smith, 983 F.3d 1213, 1223 (11th Cir. 2020); United States v. Ruth, 966 F.3d 642, 647 (7th Cir. 2020). As far as I am aware, however, no circuit court has held that a crime that the court previously found covered (under its old “related to” test) no longer counts (under a new “necessarily entails” test). Cf. United States v. Prentice, 956 F.3d 295, 299-300 (5th Cir. 2020); United States v. Miles, 2021 WL 3077302, at *2 (N.D. Fla. July 21, 2021). We thus would break significant new ground by relying on Shular to depart from Eason.
In my mind, though, two factors point the other way. First, the government has not argued that Eason‘s “related to” test binds us as a precedential matter. It instead continues to embrace Shular‘s narrow reading (while suggesting that this reading covers the Kentucky crime at issue in this case). The government‘s decision to accept the narrow reading may (or may not) be intentional. Recall that, unlike in Eason, it advocated for the narrow definition in Shular, asserting that “involve” means to “include (something) as a necessary part or result.” Brief for the United States at 13, Shular, 140 S. Ct. 779 (No. 18-6662), 2019 WL 6324154 (quoting New Oxford Dictionary of English 962 (2001)). The government in Shular may well have departed from its prior “related to” test because the defendant claimed that this test was unworkable. See Brief for Petitioner at 24-29, Shular, 140 S. Ct. 779 (No. 18-6662), 2019 WL 4689150. According to the government, the “necessarily entails” test avoids these administrative headaches by adopting a “straightforward inquiry” that courts can easily apply. Transcript of Oral Argument at 46, Shular, 140 S. Ct. 779 (No. 18-6662), 2020 WL 354451.
I agree that the narrow definition leads to an easy-to-apply test. But this test is easy to apply precisely because it excludes inchoate crimes like the offenses at issue in this case and Eason. Under the “necessarily entails” or “necessarily requires” framework, a court need only ask whether a crime will always include manufacturing, distributing, or possessing with intent to manufacture or distribute in order for a defendant to commit it. If the crime could be completed without any of those activities occurring, the crime does not “necessarily entail” or “necessarily require” the activities (even if it is related to them). And here, the majority opinion persuasively explains why a defendant could complete the crime of possessing an ingredient with intent to produce methamphetamine without anyone engaging in anything resembling “manufacturing.”
I simply do not understand the government‘s contrary argument that the difference between the two definitions does not matter in this case. Its view that an offense can “necessarily require” certain conduct even if the crime can be accomplished without that conduct conflicts with the ordinary English meaning of those words. It also resurrects the workability concerns that the government seemingly sought to eliminate by abandoning Eason‘s “related to” test in Shular. I have no idea what crimes would (or would not) “necessarily entail” manufacturing under the government‘s view. The pre-Shular caselaw that treated inchoate drug offenses as “serious drug offenses” confirms that this distinction matters. These decisions do not suggest that these inchoate offenses would involve manufacturing or distributing under a narrow definition of “involve.” Rather, they treated such unfinished crimes as “serious drug offenses” by adopting the broad “related to” test that the government previously espoused. See, e.g., Daniels, 915 F.3d at 155; Winbush, 407 F.3d at 707; King, 325 F.3d at 113-14. In one of these cases, a defendant even quoted the narrow definition to argue that a state drug conspiracy was not a serious drug offense. See McKenney, 450 F.3d at 42-43. The First Circuit did not hold that the “narrow definition” would cover the conspiracy. Id. at 43. It instead adopted the broad definition that did cover it. Id.
In short, the difference between the definitions is critical. Yet the government does not treat Shular‘s narrow definition as dicta or Eason‘s broad definition as binding. I suppose we could find that Eason continues to bind us on our own initiative because litigants cannot force us to
Second, Shular‘s narrow reading strikes me as the better one. The statutory definition of “serious drug offense” dates to the Career Criminals Amendment Act of 1986. Pub. L. No. 99-570, § 1402(b), 100 Stat. 3207, 3207-39 to 3207-40. Then, as now, “involve” had a range of meanings. Every dictionary that I have reviewed lists a definition like the following: “to include as a necessary circumstance, condition, or consequence; imply; entail[.]” Random House Dictionary of the English Language 1005 (2d ed. 1987); see also Oxford Dictionary of English 912 (2d ed. 2003); 8 Oxford English Dictionary 57 (2d ed. 1989); Webster‘s Third New International Dictionary 1191 (1986); American Heritage Dictionary of the English Language 690 (1969); Webster‘s New International Dictionary of the English Language 1307 (2d ed. 1944). This definition might have grown out of the word‘s original meaning: to “envelop” or “wrap up.” See 8 Oxford English Dictionary, supra, at 57. When “involve” is used in this sense, the subject that precedes the word typically contains or requires the direct object that comes after it. It would apply, for instance, if an employer told a prospective employee that “the job would involve travel.” American Heritage Dictionary of the English Language 921 (4th ed. 2000). The employee likely would think that the job requires travel (like the position of a traveling salesperson), not that the job relates to travel (like the position of an airport baggage handler).
Other times, “involve” means “implicate.” When used to mean “implicate,” the word usually conveys that a person has a “close, often entangling, connection with something” that is typically unsavory or criminal. Webster‘s New International, supra, at 1307 (2d ed.). If, for example, a politician discussed “evidence that involved the governor in the scandal,” the politician would be describing evidence that connected the governor to the scandal. American Heritage, supra, at 921 (4th ed. 2000). When “involve” is used in this sense, the subject that precedes the word (“evidence“) typically connects a direct object (“governor“) to an indirect object (“scandal“).
Some dictionaries also suggest that “involve” can mean “relate closely.” Webster‘s Third, supra, at 1191; Webster‘s Ninth New Collegiate Dictionary 637 (1984). Webster‘s Third lists as its lone example for this usage: “the problem is closely involved with the management of pastures.” Webster‘s Third, supra, at 1191. It thus suggests that the phrasal verb “involved with” conveys this meaning (like the phrasal verb “relate to“). Cf. McGraw-Hill‘s Dictionary of American Idioms and Phrasal Verbs 352, 554 (2005). Another dictionary ties this “relate to” meaning to another definition: “to relate to or affect” as in “the matter involves his honor.” Webster‘s New World Dictionary 711 (3d college ed. 1988); cf. Random House, supra, at 1005 (“to affect, as something within the scope of operation“).
In sum, “involve” can mean anything from “include,” to “implicate,” to “relate to.” We thus must decide which usage an ordinary person would think best fits the statutory definition at issue here. See United States v. Hill, 963 F.3d 528, 532-33 (6th Cir. 2020). To recap, “serious drug
Admittedly, the First Circuit—the only pre-Shular circuit to grapple with these differing definitions—thought that “connect closely” or “relate closely” was the better reading. McKenney, 450 F.3d at 43 (citations omitted). I do not see why. The full definition with “connect closely” provides: “[t]o connect closely and often incriminatingly; implicate.” American Heritage, supra, at 921 (4th ed. 2000). Yet the statute does not seek to convey that a state offense is incriminatingly connected to the “manufacturing” or “distributing” of drugs—as if this inanimate offense (like a person) could commit the crimes. The statute identifies the conduct that the offense must contain (i.e., “include“), not the conduct that the offense must have participated in (i.e., “implicate“). As noted, moreover, when “involve” means “implicate” or “connect,” an inanimate subject (like “evidence“) typically connects one thing (like “governor“) with something else (like “scandal“). See id. This construction is a poor fit for this statute.
That leaves “relate to.” I have found only a few dictionaries, including Webster‘s Third and Webster‘s Ninth New Collegiate (an offshoot), that list this definition for “involve.” Yet the Supreme Court has told us to use Webster‘s Third “cautiously” given its “frequent inclusion of doubtful, slipshod meanings[.]” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 422 & n.21 (2012); see MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 228 n.3 (1994). In addition, the statute does not use the phrasal-verb construction (“involved with“) that Webster‘s Third associates with this usage. Webster‘s Third, supra, at 1191. Although another dictionary ties this “relate to” definition with “affect,” Webster‘s New World, supra, at 711, the statute also does not suggest that a state offense must have an effect on manufacturing or distributing. The statute instead conveys a meaning closer to this dictionary‘s example for “include” (“a project involving years of work“) than its example for “relate to or affect” (“the matter involves his honor“). Id.
Even if some lingering ambiguity existed, though, other contextual clues point to a narrow reading. For starters, the broad definition comes with a superfluity downside. Congress opted to identify three specific types of covered drug activities in the statutory definition: manufacturing, distributing, and possessing with intent to manufacture or distribute. Yet the third activity serves no purpose under a broad “related to” definition of “involving.” I, for example, would think that possessing a drug (say, cocaine) with an intent to manufacture another drug (say, crack cocaine) “relates to” manufacturing—in the same way that purchasing a drug ingredient relates to manufacturing. See Eason, 919 F.3d at 391-92. Similarly, possessing a drug with an intent to distribute it also “relates to” distribution—as the Fourth
To be sure, when Congress seeks to ensure wide coverage by using broad language, its statutes will often contain some amount of redundancy. See Conn. Nat‘l Bank v. Germain, 503 U.S. 249, 253-54 (1992); cf. TMW Enters., Inc. v. Fed. Ins. Co., 619 F.3d 574, 577-78 (6th Cir. 2010). And we must respect Congress‘s choice if its unambiguous language shows that it opted for this belt-and-suspenders approach. See Scalia & Garner, supra, at 176-77.
But Congress does not appear to me to have opted for that approach here. If it sought to broadly cover any state drug crime related to manufacturing or distributing, it could have simply said “relating to.” Congress has not been shy about using that phrase. In the same section as the definition of “serious drug offense,” it prohibited individuals from traveling interstate to buy a gun “with the intent to engage in conduct which” “violates any State law relating to any controlled substance[.]”
Perhaps most tellingly, the very Act that codified the “serious drug offense” definition evinces a clear distinction between “relating to” and “involving.” For one thing, this Act elsewhere imposed stiffer sentences for individuals who had prior felony convictions under a “law of a State . . . relating to narcotic drugs[.]” Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 1002, 100 Stat. 3207, 3207-3 to 3207-4 (emphasis added). (Congress has since amended this provision. See
For another thing, the Act uses “involve” or “involving” elsewhere to mean “include,” not “relate to.” The unconstitutional “residual clause” in the nearby “violent felony” definition covers a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 1402(b), 100 Stat. at 3207-40 (codified at
Lastly, even if the reader is still not convinced, remember that we are interpreting a criminal statute. The rule of lenity thus applies when choosing between these differing definitions of the word “involve.” See Jones v. United States, 529 U.S. 848, 858 (2000); cf. Shular, 140 S. Ct. at 787-89 (Kavanaugh, J., concurring). I would think that I have said enough to show that the statute at least remains ambiguous after exhausting all of the traditional tools of interpretation. This potential tie breaker thus points in the direction of the narrow definition too.
* * *
To sum up, I am hesitant to depart from a published precedent like Eason and from the current approach in many other courts based on Supreme Court reasoning that the Court may later treat as dicta. At the same time, I do think Shular allows us to reexamine Eason‘s definition, especially considering that the federal government has not defended that definition here. And, perhaps most notably, the statutory context and structure lead me to conclude that Shular‘s narrow reading of “involving” best fits the statutory definition of “serious drug offense.” For these reasons, along with those in Judge White‘s majority opinion, I concur.
United States v. Fields
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CONCURRING IN PART AND DISSENTING IN PART
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ROGERS, Circuit Judge, concurring and dissenting in part. I concur in all but Part IV.A of the majority opinion. The published holding of this court in United States v. Eason, 919 F.3d 385 (6th Cir. 2019), flatly precludes the adoption of a “necessarily requires” standard, and incidental language in a Supreme Court opinion resolving a very different issue is not sufficient to overrule our precedent. While such language might be relevant or even persuasive in the absence of binding published precedent of our court, or in arguments for en banc review or certiorari to the Supreme Court, it is not sufficient to overrule our precedent.
We are required to follow the clear holding in Eason notwithstanding Shular v. United States, 140 S. Ct. 779 (2020). Formally speaking, any language in Shular appearing to adopt the “necessarily requires” standard is, at most, dictum rather than holding. See id. at 784-86. More importantly, though, a careful reading of the Shular
First, the issue in Shular was whether, as the offender argued, finding a “serious drug offense” required a generic-offense analysis. The Shular Court ruled in favor of the government on this issue, and certainly would have done the same thing if it had assumed a more generous reading of “involves” than the “necessarily entail” standard. Accordingly, the “necessarily entail” standard was simply not necessary to its affirmance of the court of appeals. Formally speaking, in other words, any statement by the Court that “involves” cannot be broader than “necessarily entail,” to the detriment of the government, cannot be a holding in a case where the government prevailed.
Second, a careful reading shows that Justice Ginsburg was not deciding the “necessarily entail” issue, regardless of whether such a decision would have been dictum or holding. The Court used the Kawashima case as an “example” to show that the Court did not always require a generic-offense analysis. See id. at 783 (citing Kawashima v. Holder, 565 U.S. 478 (2012)). In describing the dispute before it, the Court described the Government‘s view as that “a court should apply ‘the Kawashima categorical approach,‘” which asks “whether the state offense‘s elements ‘necessarily entail one of the types of conduct’ identified in
But the Court went on in the next paragraph to describe the two positions more crisply as follows:
This methodological dispute is occasioned by an interpretive disagreement over
§ 924(e)(2)(A)(ii) ‘s reference to “manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” Those terms, in the Government‘s view, describe conduct a court can compare directly against the state crime‘s elements. Shular sees them instead as offenses whose elements a court must first expound.
Id. at 785. This description is the one that immediately precedes the Court‘s statement that “[t]he Government‘s reading, we are convinced, correctly interprets the statutory text and context.” Id. In the following sentence, the Court concluded that
The subsequent paragraphs confirm this. The Court‘s primary argument was that words like “manufacturing” and “distributing” were unlikely names for generic offenses. This argument says nothing about the meaning of “involves.” The Court‘s second argument was that the word “involving” “suggests that the descriptive terms immediately following the word . . . identify conduct.” Id. The Court reasoned that in contrast, the use of the word “is” instead of “involving” would have been used to refer to crimes. In making this argument, the Court did say the “[t]he parties agree that ‘involve’ means ‘necessarily require[d],‘” id., but this was only to support the idea that the words addressed conduct. It is true that the fact that the parties agreed does not by itself make a statement dictum, but in the context of this case it certainly shows that the language used by the Court was not meant to reject an argument (that “involve” means
So what we have is a clear holding in a published opinion of our court that adopts a broad interpretation of “involving” in the statute, and an intervening opinion of the Supreme Court that does not hold, or even decide, or even make an analysis that could be used to support, the contrary. We are bound to follow our precedent, no matter how thoughtful the arguments for coming to a different conclusion are, in the absence of en banc review or an intervening Supreme Court decision adopting a different rule.
I do not address subparts 2-4 of Part IV.A of the majority‘s opinion, which proceed to apply the “necessarily entail” test. The majority appears to accept that affirmance would be required on this issue if the Eason test instead were applied.
Notes
The Court: You gave me a thoughtful argument, and I appreciate the argument. But what defines what goes to a jury is the Sixth Amendment, not a statute. And if the enhancing facts are within the ambit of the Sixth Amendment, that tells me it has to go to the jury. I don’t need a statute to tell me that. The constitution is the primary authority, not the statute. . . . I understand your argument about 851, but I don’t think that defines what goes to the jury. I think the Court has to define the elements of the crime. The elements of the crime go to the jury under the Sixth Amendment. . . . [T]o the extent there is a Sixth Amendment issue, it is easily cured by letting the jury decide. That’s what I intend to do.”
R. 107 PID 525-28.Fields raised no factual issues in his § 851 response. Indeed, he waited until after trial—and after the jury had found the incarceration-related conditions to be met—to file any § 851 response at all, and that response challenged only the legal characterization of his prior convictions as being for “serious drug felonies.” See R. 75 PID 303-05; see also R. 91 PID 353-58 (supplemental brief objecting to PSR, solely raising challenge to this legal characterization). He had time to do so before trial. The indictment alleged that he had served over a year in prison and was released within fifteen years of the present offense for each of his alleged prior convictions for “serious
drug felon[ies].” R. 1 PID 1-2. And the government filed a § 851 notice in November 2019, just shy of two months before the January 15, 2020 trial started. Indeed, Fields’s counsel told the government that he “ha[d] no objection to bifurcation” when the government moved to bifurcate proceedings on January 3, 2020. R. 44 PID 133.It is difficult to accept Fields’s argument that § 851 required the court to refrain from sending facts to the jury that Fields never challenged in a § 851 written objection—the trigger for a § 851 hearing. Cf. United States v. Hill, 142 F.3d 305, 313 (6th Cir. 1998) (holding that district court’s failure to engage in § 851(b) colloquy was harmless because the defendant never filed § 851(c)(1) response challenging his prior convictions: “there is no reason for a district court to conduct a hearing on the validity of the prior convictions when a defendant fails to first meet the requirements of