                                RECOMMENDED FOR PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 20a0044p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                                   ┐
                                    Plaintiff-Appellee,      │
                                                             │
                                                              >        Nos. 19-5141/5186
        v.                                                   │
                                                             │
                                                             │
 PEDRO VASQUEZ CAVAZOS, JR.            (19-5141);            │
 CHRISTOPHER LEE SERRANO (19-5186),                          │
                            Defendants-Appellants.           │
                                                             ┘

                         Appeal from the United States District Court
                       for the Eastern District of Kentucky at London.
                      No. 6:18-cr-00012—Robert E. Wier, District Judge.

                             Decided and Filed: February 12, 2020

             Before: BATCHELDER, STRANCH, and NALBANDIAN, Circuit Judges.
                                  _________________

                                            COUNSEL

ON BRIEF: Andrew M. Stephens, Lexington, Kentucky, for Appellant in 19-5141. Renée
Paradis, Brooklyn, New York, for Appellant in 19-5186. Charles P. Wisdom, Jr., Kyle M.
Melloan, UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.
                                      _________________

                                             OPINION
                                      _________________

       NALBANDIAN, Circuit Judge. After pleading guilty to controlled substance offenses,
Pedro Cavazos and Christopher Serrano both received sentencing enhancements because of prior
controlled substance convictions. They argue on appeal that the district court improperly applied
these enhancements.    We agree that Serrano does not qualify as a career offender so we
 Nos. 19-5141/5186                United States v. Cavazos, et al.                            Page 2


VACATE his sentence and REMAND for resentencing.                 But the court properly applied
Cavazos’s enhancement so we AFFIRM his sentence.

                                                 I.

       In 2017, Cavazos and Serrano transported cocaine from Texas to Kentucky at the request
of undercover FBI officers. Based on this conduct, both Cavazos and Serrano pleaded guilty to a
single count of conspiracy to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 846.     The United States gave notice to both defendants that 21 U.S.C.
§ 841(b)(1)(B) subjected them to enhanced statutory punishments because of prior felony drug
convictions. Cavazos objected, both orally at his re-arraignment and through a written motion
prepared by counsel, to basing the enhancement on his 2004 federal conviction for possession
with intent to distribute methamphetamine, arguing that it violated the Fifth Amendment’s
Double Jeopardy Clause. The district court denied Cavazos’s objection, finding that Cavazos
failed to satisfy his burden of establishing the unconstitutionality of his prior conviction. And
even if he had, the court held, the dual sovereignty exception would permit federal prosecution,
and Cavazos violated 21 U.S.C. § 851(e)’s five-year limitations period. Serrano orally affirmed
his prior conviction. So the district court applied the statutory enhancement to both defendants,
resulting in a penalty for each of them of ten years to life. See 21 U.S.C. § 841(b)(1)(B).

       Neither defendant objected to his presentence report. So at Cavazos’s sentencing, the
district court calculated a guidelines range of eighty-four to 105 months. The statutory minimum
enhanced the Guidelines recommendation to 120 months, and the court imposed that sentence.
At Serrano’s sentencing, the district court increased Serrano’s offense level to thirty-seven—the
mandatory offense level for career offenders guilty of a crime that carries a statutory maximum
term of life imprisonment. The court did so because it determined that Serrano’s prior federal
conviction for conspiracy to possess with intent to deliver cocaine and prior Texas conviction for
possession of a controlled substance with intent to deliver qualified as predicate offenses under
USSG § 4B1.2. After a three-level reduction for acceptance of responsibility, the district court
calculated Serrano’s guidelines range to be 262 to 327 months and sentenced Serrano to 262
months. This appeal follows.
 Nos. 19-5141/5186                United States v. Cavazos, et al.                         Page 3


                                                II.

       Cavazos’s confusing appellate brief raises only one argument: that the government
obtained the prior conviction used to trigger 21 U.S.C. § 841(b)(1)(B)’s enhanced statutory
penalty in violation of the Double Jeopardy Clause. The district court correctly noted both that
the dual-sovereignty doctrine likely renders Cavazos’s prior conviction constitutionally
permissible, see Gamble v. United States, 139 S. Ct. 1960, 1979–80 (2019), and that Cavazos
likely failed to satisfy his burden of establishing the unconstitutionality of his prior conviction.
But what proves dispositive here is 21 U.S.C. § 851(e). That section prevents any challenge to a
prior conviction used to enhance the statutory penalty under § 841(b)(1)(B) when five years have
elapsed between the prior conviction and “the information alleging such prior conviction.”
§ 851(e). The government first notified Cavazos that his prior conviction subjected him to an
enhanced statutory punishment on June 1, 2018. And the Western District of Texas entered
judgment against Cavazos for his prior possession with intent to distribute methamphetamine
conviction on December 3, 2004. So almost fourteen years passed between the two. Thus,
§ 851(e) prevents Cavazos from challenging the constitutionality of his prior conviction
regarding his enhanced sentence.      Cavazos argues that he cannot waive his constitutional
challenge. But that is not true. As we said in United States v. Reed, “Congress could choose to
eliminate all collateral attacks on prior convictions with regard to sentence enhancement, save
for the limited circumstance in which the prior conviction was obtained in violation of the right
to have counsel appointed.” 141 F.3d 644, 652 (6th Cir. 1998) (citing Custis v. United States,
511 U.S. 485, 491–97 (1994)). Because that narrow exception does not apply here, Congress’s
restriction on Cavazos’s ability to challenge his prior conviction’s use in enhancing his sentence
is valid. So we affirm Cavazos’s sentence.

                                                III.

       Serrano appeals only his classification as a career offender.        He concedes that his
conviction here and his prior federal conviction qualify as “controlled substance offenses” under
USSG § 4B1.2. It is his prior Texas conviction for possession of a controlled substance with
intent to deliver that he claims is outside that section’s definition of “controlled substance
offense.” If the district court had not classified Serrano’s Texas conviction as a predicate offense
 Nos. 19-5141/5186                       United States v. Cavazos, et al.                                    Page 4


under § 4B1.2, Serrano’s offense level would have been nine levels lower and his Guidelines
range would have been less than half of the range the court used to sentence Serrano. “A district
court’s failure to properly calculate the advisory Guidelines range is a ‘significant procedural
error.’” United States v. Fuller-Ragland, 931 F.3d 456, 459 (6th Cir. 2019) (quoting Gall v.
United States, 552 U.S. 38, 51 (2007)). So Serrano is effectively challenging the procedural
reasonableness of his sentence. Because Serrano objects to the calculation of his Guidelines
range for the first time on appeal, we review only for plain error. See id; Fed. R. Crim. P. 52(b).
In other words, we may reverse only if Serrano can show “(1) error (2) that ‘was obvious or
clear,’ (3) that ‘affected defendant’s substantial rights’ and (4) that ‘affected the fairness,
integrity, or public reputation of the judicial proceedings.’” United States v. Vonner, 516 F.3d
382, 386 (6th Cir. 2008) (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)).

         The Supreme Court has resolved the third and fourth prongs of that inquiry for us.
In Molina-Martinez v. United States, the Court held that improper calculation of the Guidelines
range is a “significant procedural error” that usually affects a defendant’s substantial rights.
136 S. Ct. 1338, 1345–46 (2016). It reserved judgment in cases where there is evidence that the
sentencing court would have imposed the sentence it chose regardless of the Guidelines range.
Id. at 1346–47. But here, as in Molina-Martinez, “the record is silent as to what the district court
might have done had it considered the correct Guidelines range,” so “the court’s reliance on an
incorrect range . . . suffice[s] to show an effect on the defendant’s substantial rights.” Id. at
1347.1 And in Rosales-Mireles v. United States, the Supreme Court held that “[t]he risk of
unnecessary deprivation of liberty particularly undermines the fairness, integrity, or public
reputation of judicial proceedings in the context of a plain Guidelines error[.]” 138 S. Ct. 1897,
1908 (2018). So we are left to determine only whether the district court’s classification of
Serrano as a career offender was an obvious or clear error.

         For offenses that carry a maximum statutory penalty of life—such as 21 U.S.C.
§ 841(b)(1)(B) when enhanced—USSG § 4B1.1 imposes a mandatory offense level of thirty-

         1And   in fact, the sentencing judge suggested that the Guidelines were the primary factor he used to select a
sentence. (See R. 143, Serrano Sentencing Tr. at PageID #745 (“I do think it’s a guideline scenario. . . . And so I
think the guidelines appropriately capture the factors and purposes of sentencing in this case. And so I am going to
stay within the guidelines.”))
 Nos. 19-5141/5186                United States v. Cavazos, et al.                           Page 5


seven for adult defendants that commit a controlled substance offense and have “at least two
prior felony convictions of either a crime of violence or a controlled substance offense.”

       The term “controlled substance offense” means 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.

USSG § 4B1.2(b). Serrano concedes that his conviction here and his prior federal conviction
satisfy this definition. (Serrano Br. at 6.) At issue is whether the district court committed an
obvious or clear error in determining that Serrano’s Texas conviction for possession of a
controlled substance with intent to deliver, in violation of Texas Health & Safety Code
§ 481.112, is a “controlled substance offense” under USSG § 4B1.2.

       In determining whether a state criminal conviction qualifies as a “controlled substance
offense,” we must determine whether the elements of the offense require that the defendant
engage in the conduct defined in USSG § 4B1.2. Taylor v. United States, 495 U.S. 575, 600
(1990); United States v. Eason, 919 F.3d 385, 388 (6th Cir. 2019). This categorical inquiry
means we look only to the elements of the offense set forth in the statute itself, rather than the
particular facts of the defendant’s case. Taylor, 495 U.S. at 602; Eason, 919 F.3d at 388.
But when a statute is divisible—i.e., it “sets out one or more elements of the offense in the
alternative”—we apply a modified categorical approach, looking to a “limited class of
documents, such as indictments and jury instructions, to determine which alternative formed the
basis of the defendant’s prior conviction.” Descamps v. United States, 570 U.S. 254, 257 (2013).

       When state courts definitively answer whether a statute is divisible, we “need only follow
what [they] say[].” Mathis v. United States, 136 S. Ct. 2243, 2256 (2016). And the Texas Court
of Criminal Appeals has done just that with § 481.112. In Lopez v. State, that Court held that
“there are at least five ways to commit an offense under Section 481.112” but all of these are just
“several different means for committing the offense of delivery of a single quantity of drugs so
that, no matter where along the line of actual delivery . . . the drug dealer may be held
accountable[.]” 108 S.W.3d 293, 297, 299–300 (Tex. 2003) (emphasis added). So § 481.112 is
 Nos. 19-5141/5186                       United States v. Cavazos, et al.                                   Page 6


not divisible.     See Mathis, 136 S. Ct. at 2254–56 (explaining that a statute must set out
alternative elements rather than alternative means of fulfilling those elements to qualify as
divisible). The Fifth Circuit reached the same conclusion in United States v. Tanksley, 848 F.3d
347, 352 (5th Cir. 2017) (“The means or elements question has been directly answered by the
Texas court.”), supplemented, 854 F.3d 284 (5th Cir. 2017), and we normally defer to other
federal courts of appeals for interpretation of the laws of the states within their boundaries. See
Curtis 1000, Inc. v. Martin, 197 F. App’x 412, 422 n.4 (6th Cir. 2006). Thus, we must apply the
categorical approach.2

         At the time of Serrano’s conviction, § 481.112 made it a crime to “knowingly
manufacture[], deliver[], or possess[] with intent to deliver a controlled substance[.]” Tex.
Health & Safety Code § 481.112 (2004) (amended 2009).                          And Texas law also included
“offering to sell a controlled substance” within the definition of “deliver.” Tex. Health & Safety
Code § 481.002(8) (2004) (amended 2013). Serrano argues that inclusion of offers to sell
controlled substances makes § 481.112 “too broad to categorically qualify” as a controlled
substance offense because § 4B1.2 does not include that conduct.                          (Serrano Br. at 8–9.)
He claims that we should defer to the Fifth Circuit, which has found as much, because “[t]he
question of whether a particular state court offense is a predicate offense is primarily one of state
law.” (Serrano Br. at 11.)

         In United States v. Hill, the Fifth Circuit found plain error in a district court’s career
offender classification based on a § 481.112 conviction. 716 F. App’x 327, 329–31 (5th Cir.
2018) (per curiam). That holding was required by Tanksley, discussed above, where the Fifth
Circuit held that § 481.112 is indivisible. 848 F.3d at 352. Tanksley also extended United States
v. Gonzales, where the Fifth Circuit held that delivery of a controlled substance under § 481.112
includes conduct beyond what the Federal Sentencing Guidelines’ definition of “drug trafficking
offense” includes.        Id. at 351 (citing 484 F.3d 712, 714 (5th Cir. 2007) (per curiam)).

         2While  we defer to the Fifth Circuit and Texas courts on the divisibility of § 481.112, we express no
opinion on the question. Especially because only Serrano’s briefing addresses divisibility. See Koubriti v.
Convertino, 593 F.3d 459, 471 (6th Cir. 2010) (holding that it is improper to reach the merits of questions not
developed in the lower court record or briefed by the parties); United States v. Blackie, 548 F.3d 395, 404 (6th Cir.
2008) (Sutton, J., concurring) (“Before taking sides on how to approach this question, I would prefer to wait until
the issue has been raised by the parties, it has been briefed and it makes a difference to the outcome of the case.”).
 Nos. 19-5141/5186                United States v. Cavazos, et al.                         Page 7


Finding “no substantive difference between a ‘controlled substance offense’ and a ‘drug
trafficking offense’ under the Guidelines,” the Tanksley court held that Gonzales controlled, and
the indivisible § 481.112 is too broad to categorically qualify as a “controlled substance offense.”
Id at 351–52.

       Again, we normally defer to a federal Court of Appeals’ analysis of state law within its
circuit. See Curtis 1000, Inc., 197 F. App’x at 422 n.4. But the substance of Texas law isn’t in
dispute here. The question is whether the federal sentencing guidelines include conduct that
Texas undisputedly criminalizes. We retain our full authority to interpret the Guidelines. And
we need not look to the Fifth Circuit when binding precedent from our own Circuit answers the
question.

       When the district court sentenced Serrano, the court was clearly correct in finding that
§ 4B1.2’s definition of controlled substance offenses included offers to sell controlled
substances. That’s because we said as much in United States v. Evans. 699 F.3d 858, 868 (6th
Cir. 2012). There, we determined that “an offer to sell is properly considered an attempt to
transfer a controlled substance[.]” Id. at 867. And because the application notes to § 4B1.2 tell
us that the definition of “controlled substance offenses” includes attempt crimes, statutes that
criminalize offers to sell controlled substances qualify as predicate offenses under § 4B1.1. Id. at
867–68. But after the district court sentenced Serrano, and before this appeal, we decided United
States v. Havis. 927 F.3d 382 (6th Cir. 2019) (en banc). In Havis, we rejected the second
analytical step in Evans. Application notes must be “‘interpretations of, not additions to, the
Guidelines[.]’” Id. at 386 (quoting United States v. Rollins, 836 F.3d 737, 742 (7th Cir. 2016)
(en banc)). Because the text of § 4B1.2 never mentions attempt crimes, the application note’s
inclusion of attempt crimes in the definition of predicate “controlled substance offenses” is an
impermissible “addition to” the Guidelines. Id. at 386–87. So statutes that include attempted
delivery of controlled substances are too broad to categorically qualify as “controlled substance
offenses” under § 4B1.2. Id. at 387.

       Havis did not discuss offers to sell controlled substances and therefore did not overrule
Evans’s holding that “an offer to sell is properly considered an attempt to transfer a controlled
substance[.]” 699 F.3d at 867; see Bryan A. Garner et al., The Law of Judicial Precedent 308
 Nos. 19-5141/5186                        United States v. Cavazos, et al.                                     Page 8


(2016) (“[A] decision that a court has ‘overruled in part’ or ‘reversed in part’ maintains
precedential value to the extent that the earlier opinion doesn’t conflict with the overruling or
reversing opinion.”). See also United States v. Johnson, 933 F.3d 540, 544 (6th Cir. 2019)
(noting in a different context that Havis’s abrogation of Evans was limited). And Havis made
clear that § 4B1.2’s definition of “controlled substance offenses” does not include attempt
crimes. 927 F.3d at 387. Thus, statutes that criminalize offers to sell controlled substances are
too broad to categorically qualify as predicate “controlled substance offenses.” As the law
stands today, it is clear or obvious error to find § 481.112 categorically qualifies as a “controlled
substance offense” under § 4B1.2.3

         Despite the language of the plain error standard—which suggests that the error must have
been clear or obvious at the time of the district court’s ruling—the Supreme Court has instructed
that in situations like this, “where the law at the time of trial was settled and clearly contrary to
the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate
consideration.” Johnson v. United States, 520 U.S. 461, 468 (1997). Because it would be clear
or obvious error today for the district court to enhance Serrano’s offense level under § 4B1.1
based on a predicate conviction under § 481.112, we find the first two elements of the plain error
standard satisfied. With all four of the plain error elements satisfied, we vacate Serrano’s
sentence and remand for resentencing.

                                                          IV.

         For these reasons, we AFFIRM Cavazos’s sentence, VACATE Serrano’s sentence, and
REMAND for resentencing consistent with this opinion.



          3True, there is no binding case law from this circuit that has found § 481.112 too broad to categorically
qualify as a predicate controlled substance offense. But binding case law need not address the same statute for the
district court’s interpretation of that statute to be plain error. See United States v. Powell, 781 F. App’x 487, 489–90
(6th Cir. 2019) (relying on Havis, which involved a predicate Tennessee controlled substance conviction, to vacate a
career offender sentence based on an Ohio controlled substance conviction). Rather, binding case law must clearly
answer the question presented. United States v. Al-Maliki, 787 F.3d 784, 794 (2015) (citing United States v. Olano,
507 U.S. 725, 734 (1993); United States v. Woodruff, 735 F.3d 445, 450 (6th Cir. 2013)). The question presented
here is whether a statute that criminalizes offers to sell controlled substances is too broad to categorically qualify as
a predicate controlled substance offense under § 4B1.2. And taken together, Havis and what’s left of Evans clearly
answer that question in the affirmative.
