                        NOT RECOMMENDED FOR PUBLICATION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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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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