UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIE GARTH, Defendant-Appellant.
No. 19-5658
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
July 14, 2020
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 20a0212p.06. Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga. No. 1:18-cr-00041-1—Travis R. McDonough, District Judge. Argued: June 18, 2020. Decided and Filed: July 14, 2020. Before: COLE, Chief Judge; McKEAGUE and KETHLEDGE, Cirсuit Judges.
COUNSEL
ARGUED: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellant. Daniel J. Richardson, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellant. Debra A. Breneman, UNITED STATES ATTORNEY‘S OFFICE, Knoxville, Tennessee, Christopher D. Poole, UNITED STATES ATTORNEY‘S OFFICE, Chattanooga, Tennessee, for Appellee.
McKEAGUE, J., delivered the opinion of the court in which KETHLEDGE, J., joined. COLE, C.J. (pg. 8), delivered a separate opinion concurring in part and in the judgment.
McKEAGUE, Circuit Judge. Under the United States Sentencing Guidelines, a defendant‘s sentence in federal court can be еnhanced by his prior conviction in state court. An earlier state drug crime, for instance, will often boost prison time for a federal one. But not always. The guidelines have just one definition of drug crimes that can enhance sentences (“controlled-substanсe offenses“), yet each state defines its drug crimes in its own way—sometimes in ways that venture beyond the guidelines’ definition. Willie Garth‘s appeal from his sentence requires us to decide whether his prior Tennessee conviction for possessing marijuana with intent to deliver counts as a sentence-enhancing controlled-substance offense. We hold that it does, and affirm Garth‘s sentence.
I
Garth pled guilty to possessing crack-cocaine with the intent to distribute, in violation of
II
Garth appealed, and argues that the career-offender enhancement shouldn‘t have applied because Tennessee possession with intent to deliver is not a controlled-substance offense as the guidelines define that phrase. We review this claim de novo. United States v. Havis, 927 F.3d 382, 384 (6th Cir. 2019) (en banc) (per curiam).
To determine whether Garth‘s prior conviction counts as a controlled-substance offense under the guidelines, we use the three-step “categorical approaсh.” We first map out what conduct is criminalized under the guidelines’ definition. Next, we do the same for conduct criminalized under the state law that led to the conviction. Finally, we overlay the two: if the outer edges of the state law—often the “least culpable conduct” that the law proscribes—extend past the guidelines’ definition, then the conviction doesn‘t count; if, however, the boundaries of the state law and the guidelines’ definition are coterminous, or the guidelines’ definition sweeps more broadly, then the conviсtion counts. In other words, the guidelines must fully envelop the state law of conviction. See id. at 384-85 (explaining the categorical approach).
an offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
Or, to simplify, a federal or state felony conviction for possessing a controlled substance with intent to distribute counts as a controlled-substance offense. Let‘s map out the elements of federal possession with intent to distribute, which
Next, Tennessee law. Under Tennessee‘s possession-with-intent-to-deliver statute,
Now we compare. Is there any daylight between Tennessee possession with intent to deliver and federal possession with intent to distribute, the crime listed in the guidelines? We think not. Both criminalize the same conduct: knowing that you have illegal drugs (like marijuana) and intending to give them to someone else. And yes, Tennessee opted for the word “deliver” in its law rather than the federal term “distribute,” but the distinction makes no difference. To distribute under federal law is to deliver, just as Tennessee uses the word deliver: “actual, constructive, or аttempted transfer.” Compare
We‘re not looking for a literal match, anyway. As long as “the elements of the [state] offense are of the type that would justify its inclusion within the dеfinition of a controlled-substance offense[,]” the offense is covered. United States v. Woodruff, 735 F.3d 445, 449 (6th Cir. 2013). Any mere “lexical differences” between Tennessee law and federal law are immaterial. United States v. Douglas, 563 F. App‘x 371, 377 (6th Cir. 2014). So, understandably, panels of this court have “always treated” Tennessee possession with intent to deliver “as a categorical controlled substance offense.” Id. (collecting unpublished cases).
III
Garth argues everything changed with our en banc decision in Havis. There, we
We disagree for three reasons.
First, Garth makes the wrong substitution. Delivery means attempted transfer, not attempted delivery.
Of course, Havis did say delivery covers attempted delivery. But that was because of the parties’ agreement. Were we to extend that agreement, strange results would follow. If Garth and the parties in Havis are right that Tennessee delivery covers attempted delivery because delivery means attempted transfer, see Havis, 927 F.3d at 384, the same presumably goes for identicаlly defined federal distribution—which is to say, delivery, or attempted transfer. By this logic, federal distribution encompasses attempted distribution, so all
Second, possession with intent to deliver is a completed crime, not an attempted one that Havis puts beyond the guidelines’ reach. Once a defendant knowingly possеsses a controlled substance and harbors the intent to deliver it—which can be shown by the possession of a large quantity of drugs alone—the crime is complete. True, in many cases possession with intent to deliver will amount to an attempted delivery. But possession is the completed act the law here proscribes—no delivery need actually occur. See State v. Chearis, 995 S.W.2d 641, 645 (Tenn. Crim. App. 1999); accord United States v. Faymore, 736 F.2d 328, 333 (6th Cir. 1984). Incomplete delivery doesn‘t render the possession incomplete along with it. So Garth puts “attempt” too far down the phrase
Third, even if Garth were right that Tennessee possessiоn with intent to deliver theoretically encompasses possession-with-intent-to-attempt-to-deliver—some kind of attempt crime, or form of simple possession with the mere thought of delivery—he hasn‘t shown there is a “realistic probability” Tennessee apрlies its law this way. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). Garth cannot point to (nor can we find) a single Tennessee case where a defendant was convicted of an attempted or simple possession under
So, to use Garth‘s counsel‘s example, if a defendant possesses illegal drugs and intends to “call his buddies [to] see if they want to come over and share [the drugs] with him,” Oral Arg. at 5:42–6:26, there‘s either intent to deliver or no intent at all—nothing in-between. And as in any case, whether the defendant had a provable intent to deliver depends on the evidence: the defendant‘s statements regarding intent, the quantity of drugs possessed, their street value, their purity, and so on. Compare State v. Belew, 348 S.W.3d 186, 192 (Tenn. Crim. App. 2005), with State v. Shaw, 37 S.W.3d 900, 902–03 (Tenn. Crim. App. 2001). Tennessee possession-with-intent-to-attempt-to-deliver, while theoretically possible, is thus not realistically probable. United States v. McClain, --- F. App‘x ---, 2020 WL 1888852, at *4–6 (6th Cir. Apr. 16, 2020).
IV
For these reasons, Tennessee possession with intent to deliver is categorically a controlled-substance offense under
CONCURRING IN PART AND IN THE JUDGMENT
COLE, Chief Judge, concurring in part and concurring in the judgment. I concur in the majority opinion except for its discussion in part III of whether delivery of a controlled substance under