NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0485n.06
Case No. 20-5164
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Aug 18, 2020
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
HERBERT GRAHAM, ) TENNESSEE
)
Defendant-Appellee. )
) OPINION
)
BEFORE: GILMAN, BUSH, and READLER, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. Herbert Graham was found guilty of two
related gun crimes in 2019. At sentencing, the Probation Office and the government argued that
Graham’s prior conviction for possession of drugs with the intent to sell was a “controlled
substance offense” under § 4B1.2(b) of the United States Sentencing Guidelines (U.S.S.G.),
causing Graham’s advisory sentencing-guidelines range to be set at the statutory maximum of 180
months of imprisonment for the gun crimes in question. But the district court declined to classify
Graham’s prior drug conviction as a controlled substance offense, which substantially reduced the
applicable guidelines range. For the reasons set forth below, we REVERSE the judgment of the
district court and REMAND the case for resentencing.
Case No. 20-5164, United States v. Graham
I. BACKGROUND
In January 2018, Graham pointed a loaded, stolen firearm at another man and threatened
to kill him. When Memphis police officers chased Graham, he discarded the firearm on the
grounds of a school. At the time, Graham had various prior convictions, including felony
convictions under Tennessee law for aggravated burglary, aggravated assault, being a felon in
possession of a firearm, and possession of drugs with the intent to manufacture, deliver, or sell.
A jury subsequently found Graham guilty of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), and of carrying a firearm in a school zone, in violation of 18
U.S.C. §§ 922(q)(2)(A) and 924(a)(4). The Probation Office recommended that the base offense
level for the purpose of the sentencing guidelines be set at 24 under U.S.S.G. § 2K2.1(a)(2). It
based this recommendation on the determination that Graham had one prior conviction for a crime
of violence (aggravated assault) and one prior conviction for a “controlled substance offense”
(possession of drugs with the intent to manufacture, deliver, or sell). This criminal history placed
Graham in the highest criminal-history category (Category VI). With additional enhancements for
the stolen firearm, possession of the firearm in connection with another felony (aggravated
assault), and obstruction of justice, the recommended guidelines range exceeded the statutory
maximum sentence of 180 months in prison for the most recent crimes committed by Graham.
Graham’s prior drug conviction was based on a violation of Tennessee Code Annotated
§ 39-17-417(a)(4), which makes it a crime to “[p]ossess a controlled substance with intent to
manufacture, deliver or sell the controlled substance.” He argued at sentencing that the least
culpable conduct under that provision was an attempt to commit the offense, which under United
States v. Havis, 927 F.3d 382 (6th Cir.) (en banc), mot. for reconsideration denied, 929 F.3d 317
(6th Cir. 2019) (en banc), would not be a “controlled substance offense.” But the government
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Case No. 20-5164, United States v. Graham
countered that Havis dealt with a different subsection of the Tennessee drug statute and therefore
does not control.
The district court agreed with Graham and found that Graham’s prior drug conviction was
not a controlled substance offense. Based on this ruling, Graham’s sentencing-guidelines range
was 140 to 175 months of imprisonment. The district court then varied downward from that range
and sentenced Graham to 120 months in prison. This timely appeal followed.
II. ANALYSIS
We review de novo the question of whether a prior conviction qualifies as a “controlled
substance offense” under U.S.S.G. § 4B1.2(b). See Havis, 927 F.3d at 384. The sentencing
guidelines define a “controlled substance offense” as
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.
U.S.S.G. § 4B1.2(b).
This court has made clear that, in employing what is known as “the categorical approach,
we do not consider the actual conduct that led to [the] conviction under the Tennessee statute at
issue; instead, we look to the least of the acts criminalized by the elements of that statute.” Havis,
927 F.3d at 384 (emphases in original). “If the least culpable conduct falls within the Guidelines’
definition of ‘controlled substance offense,’ then the statute categorically qualifies as a controlled
substance offense. But if the least culpable conduct falls outside that definition, then the statute is
too broad to qualify . . . .” Id. at 385.
We must therefore examine the Tennessee drug statute under which Graham was
previously convicted. That statute provides as follows:
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Case No. 20-5164, United States v. Graham
(a) It is an offense for a defendant to knowingly:
(1) Manufacture a controlled substance;
(2) Deliver a controlled substance;
(3) Sell a controlled substance; or
(4) Possess a controlled substance with intent to manufacture, deliver or
sell the controlled substance.
Tenn. Code Ann. § 39-17-417(a). Graham’s conviction was based on a violation of subsection
(a)(4). He now argues that, under the reasoning set forth in Havis, his conviction could have been
for an attempt crime.
Havis also involved a violation of Tennessee Code Annotated § 39-17-417(a). See 927
F.3d at 384. But Havis’s charging documents did not specify the subsection under which he had
been convicted. Id. This left open the possibility that Havis had been convicted only of “delivery”
under § 39-17-417(a)(2). And Tennessee law defines “delivery” as encompassing the attempted
transfer of drugs. Id. This court in Havis concluded that the definition of a “controlled substance
offense” does not encompass attempt crimes and, because Havis’s prior conviction could
theoretically have been simply for an attempt to deliver, that the conviction did not qualify as a
controlled substance offense. Id. at 387.
Graham now argues that the reasoning of Havis extends to subsection (a)(4) because (a)(4)
includes the term “deliver,” causing the subsection to encompass attempt crimes. His argument is
essentially that subsection (a)(4) should be read to mean possession of a controlled substance with
the intent to attempt to deliver or sell the controlled substance. He also argues that (1) Tennessee’s
jury instructions indicate that the definition of “sell” incorporates the definition of “deliver,”
meaning that his conviction for possession with the intent to sell could have been for delivery,
which can be an attempt crime; and (2) the text of the guidelines does not contain the offense of
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Case No. 20-5164, United States v. Graham
possession with the intent to sell, meaning that his conviction does not fit within the definition of
a “controlled substance offense.”
This court recently considered and rejected each of these arguments. See United States v.
Garth, 965 F.3d 493 (6th Cir. 2020); see also United States v. McClain, 810 F. App’x 404 (6th
Cir. 2020). The defendant in Garth pleaded guilty to a drug crime. Garth, like Graham, had
previously been convicted under Tennessee Code Annotated § 39-17-417(a)(4). 965 F.3d at 498.
The question in Garth was the same as the question presented here: whether that conviction was
a “controlled substance offense” under U.S.S.G. § 4B1.2(b). Id. at 495. As Graham argues now,
the defendant in Garth argued both that the definition of a “controlled substance offense” in the
text of U.S.S.G. § 4B1.2(b) does not match the language of Tennessee Code Annotated § 39-17-
417(a)(4), and that, under the reasoning set forth in Havis, § 39-17-417(a)(4) includes attempt
crimes, which cannot be considered controlled substance violations. See id. at 495–97.
This court in Garth concluded that there was no “daylight between Tennessee possession
with intent to deliver and federal possession with intent to distribute.” Id. at 496 (emphases in
original). As the Garth court explained, “panels of this court have ‘always treated’ Tennessee
possession with intent to deliver ‘as a categorical controlled substance offense.’” Id. (quoting
United States v. Douglas, 563 F. App’x 371, 377 (6th Cir. 2014)). A conviction under Tennessee
Code Annotated § 39-17-417(a)(4) therefore falls under the text of the “controlled substance
offense” provision in U.S.S.G. § 4B1.2(b). Id. at 498; see also McClain, 810 F. App’x at 410
(holding the same).
So too did the Garth court reject Garth’s Havis-based challenge. It noted that “possession
with intent to deliver is a completed crime, not an attempted one that Havis puts beyond the
guidelines’ reach.” Garth, 965 F.3d at 497. And, it explained, “even if Garth were right that
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Case No. 20-5164, United States v. Graham
Tennessee possession with intent to deliver theoretically encompasses possession-with-intent-to-
attempt-to-deliver[,] . . . he hasn’t shown there is a ‘realistic probability’ Tennessee applies its law
this way.” Id. at 498 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). This court
in Garth further noted that “there is no such thing as ‘intent-to-attempt’ or ‘attempt-to-attempt’
under Tennessee law.” Id.; see also McClain, 810 F. App’x at 410 (“Tennessee does not appear
to recognize an intent to attempt an offense as a permitted mental state for criminal attempts.”).
As analyzed by this court in McClain, the cases involving prosecution of an attempted drug offense
under Tennessee Code Annotated § 39-17-417(a)(4) are based on “attempted possession with the
intent to manufacture, sell, or deliver,” 810 F. App’x at 410 (emphasis in original), not on intent
to attempt to sell.
Although the opinion in Garth did not consider the argument about Tennessee’s jury
instructions, the opinion in McClain did. And McClain rejected the contention that Tennessee’s
pattern jury instructions demonstrate that Tennessee Code Annotated § 39-17-417(a)(4) includes
possession with the intent to attempt to sell or deliver. See id. (“[T]he instructions do not
demonstrate a realistic probability that Tennessee would apply subsection (a)(4) to possession with
intent to attempt to deliver.”); see also Garth, 965 F.3d at 498 (“Tennessee possession-with-intent-
to-attempt-to-deliver, while theoretically possible, is thus not realistically probable.”).
In sum, Graham’s arguments are unavailing. A prior conviction under Tennessee law for
possession of a controlled substance with the intent to sell constitutes a “controlled substance
offense” under the sentencing guidelines.
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the judgment of the district court and
REMAND the case for resentencing.
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