                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0405n.06

                                       Case No. 19-5046

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                               FILED
UNITED STATES OF AMERICA,                          )                       Jul 14, 2020
                                                   )                  DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                         )
                                                   )
v.                                                 )      ON APPEAL FROM THE UNITED
                                                   )      STATES DISTRICT COURT FOR
MICHAEL STEPHENS, a.k.a. Michael                   )      THE WESTERN DISTRICT OF
Williams,                                          )      TENNESSEE
                                                   )
       Defendant-Appellant.                        )
                                                   )


       BEFORE: MOORE, SUTTON, and DONALD, Circuit Judges.

       PER CURIAM. Michael Stephens pleaded guilty to conspiring to distribute drugs. He

received a career-offender enhancement on the ground that the offense counts as a “controlled

substance offense.” U.S.S.G. § 4B1.2(b). The government concedes error in light of United States

v. Havis, 927 F.3d 382, 386–87 (6th Cir. 2019) (en banc) (per curiam). We vacate and remand for

resentencing.

       In 2014, Stephens pleaded guilty to conspiring to possess and distribute over 500 grams of

cocaine. See 21 U.S.C. §§ 841(a)(1), 846. The court treated him as a “career offender” under

§ 4B1.1(a) of the sentencing guidelines. The designation increased Stephens’ guidelines range

from 130–162 months to 188–235 months. The court imposed a below-guidelines sentence of 180
Case No. 19-5046, United States v. Stephens


months, which we affirmed on appeal. United States v. Stephens, 651 F. App’x 445, 446–47 (6th

Cir. 2016).

       A few weeks later, the Supreme Court clarified how to determine whether a crime qualifies

as a “violent felony” under the Armed Career Criminal Act. Mathis v. United States, 136 S. Ct.

2243 (2016); see 18 U.S.C. § 924(e)(2)(B). In light of that decision, the Court vacated our opinion

and remanded for reconsideration. Stephens v. United States, 137 S. Ct. 1334, 1334–35 (2017).

We in turn remanded for resentencing. United States v. Stephens, 695 F. App’x 944 (6th Cir. 2017)

(per curiam). But not before another case altered the landscape. In Beckles v. United States, the

Supreme Court held that the guidelines’ residual clause, unlike the Armed Career Criminal Act’s

residual clause, was not subject to a due process void-for-vagueness challenge because the

guidelines are not mandatory. 137 S. Ct. 886, 892 (2017). Although the Sentencing Commission

deleted the residual clause in 2016, that change was not retroactive. See United States v. Jackson,

901 F.3d 706, 708–10 (6th Cir. 2018). That meant the 2015 guidelines’ residual clause still

governed Stephens’ resentencing. Id. at 708. And that meant Stephens’ Tennessee burglary

convictions qualified as crimes of violence if they “involve[] conduct that presents a serious

potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (2015).

       At resentencing, the district court concluded that Stephens’ prior convictions satisfied the

residual clause and that his guidelines range was still 188–235 months. Stephens agreed but sought

a downward variance to 130 months based on his efforts to rehabilitate himself in prison. The

government thought the original 180-month sentence remained appropriate. Striking a balance,

the district court settled on 144 months.

       Stephens appealed again. In the interim, still another case intervened. United States v.

Havis held that attempted controlled substance offenses do not qualify for the career offender



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Case No. 19-5046, United States v. Stephens


enhancement. 927 F.3d 382, 386–87 (6th Cir. 2019) (en banc) (per curiam). Section 4B1.2(b)

defines “controlled substance offense” as an offense punishable by more than a year in prison “that

prohibits the manufacture, import, export, distribution, or dispensing of a controlled

substance . . . or the possession of a controlled substance . . . with intent to manufacture, import,

export, distribute, or dispense.” It does not mention attempt crimes. Even though the commentary

says the term includes “attempting to commit [a controlled substance] offense[],” Havis reasoned

that this was an impermissible addition to the guidelines’ text. 927 F.3d at 386–87; U.S.S.G.

§ 4B1.2(b) cmt. n.1.

       The government concedes that Stephens no longer qualifies as a career offender under the

reasoning of Havis. Here the underlying conviction is for conspiracy to distribute cocaine,

21 U.S.C. § 846, and the career offender guideline does not mention conspiracy offenses either,

U.S.S.G. § 4B1.2(b).     Only the commentary lists “conspiring . . . to commit [a controlled

substance] offense[]” as a qualifying offense. U.S.S.G. § 4B1.2(b) cmt. n.1. In light of the

government’s concession, we vacate and remand for resentencing.




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