                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0373n.06

                                            No. 18-3654                                  FILED
                                                                                    Jul 22, 2019
                           UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA,                         )
                                                   )          ON APPEAL FROM THE
          Plaintiff-Appellee,                      )          UNITED STATES DISTRICT
                                                   )          COURT FOR THE NORTHERN
 v.                                                )          DISTRICT OF OHIO
                                                   )
 MICHAEL POWELL,                                   )
                                                                      OPINION
                                                   )
          Defendant-Appellant.                     )
                                                   )
                                                   )

Before: GUY, SUTTON, and NALBANDIAN, Circuit Judges.

       NALBANDIAN, Circuit Judge. Michael Powell pleaded guilty to his role within a large

drug conspiracy. On appeal, Powell challenges the sufficiency of his guilty plea and his sentencing

enhancement as a career criminal. Regarding the latter, we held Powell’s appeal in abeyance when

our Court granted en banc review in United States v. Jeffery Havis, No. 17-5772, which cast doubt

on Powell’s qualifying drug offense and the government’s reliance on United States v. Evans, 699

F.3d 858, 868 (6th Cir. 2012). We have now decided Havis—explaining that “[t]he Guidelines’

definition of ‘controlled substance offense’ does not include attempt crimes”—abrogating Evans.

United States v. Havis, 927 F.3d 382, 387 (6th Cir. 2019) (en banc) (per curiam). As a result, we

affirm the district court’s decision regarding Powell’s guilty plea, but in light of Havis, we reverse

the district court’s decision on Powell’s sentence.
No. 18-3654, United States v. Powell


                                                       I.

       A federal grand jury indicted Powell—along with sixteen other individuals—as part of a

conspiracy to distribute cocaine. The investigation focused on Dona Battle, who would obtain

powder cocaine, cook it into crack cocaine, and then distribute the crack around northern Ohio.1

When Battle needed to find powder cocaine at a better price, he contacted Powell. Powell

introduced Battle to new cocaine sources in the Akron, Ohio area. And he played the role of

middleman for two transactions between Battle and his sources.

       Powell pleaded guilty to his role in the conspiracy, but he did not have a written plea

agreement with the government. At sentencing, the district court considered Powell’s long history

with drugs and crime, which included ten convictions ranging from trafficking in cocaine to

disorderly conduct. These convictions caused the district court to sentence Powell as a career

criminal—ultimately sentencing Powell to 140 months in prison. Powell now raises two issues on

appeal: one with his guilty plea and one with his sentence.

                                                 II.

       Powell argues that the district court lacked a factual basis to accept his guilty plea. Because

Powell did not make this objection with the district court, we review it for plain error. See United

States v. Taylor, 627 F.3d 1012, 1017 (6th Cir. 2010). “This is a demanding standard.” United

States v. King, 914 F.3d 1021, 1024 (6th Cir. 2019). And it means that Powell must show an error




       1
         We recently affirmed Battle’s sentence. United States v. Battle, 769 F. App’x 260, 262–
65 (6th Cir. 2019).
                                                 2
No. 18-3654, United States v. Powell


that was so “obvious or clear” and “so plain that the trial judge was derelict in countenancing it.’”

Id. (quoting United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (quotation marks omitted)).

       Powell argues that, before accepting his plea, the district court never discussed the

difference between powder cocaine and crack cocaine (also known as “cocaine base”). Powell

maintains that he provided Battle with only powder—and never crack. So according to Powell,

when he entered his plea, he unknowingly pleaded guilty to conspiracy to distribute crack cocaine

(which was charged) rather than powder cocaine (which was not charged). This objection stems

from Powell’s presentence investigation report (“PSI”), which he received after his plea. Powell

claims that his PSI was the first time anyone mentioned crack cocaine. (See Powell PSR, R. 262

¶ 25 (“According to the agent, Powell was involved with $1,250 worth of crack cocaine, which is

estimated to be equal to 12.5 grams.”).)

       Powell voiced his concern at his sentencing hearing, where he explained that “before I took

my plea, . . . I told [the government] ‘I don’t sell crack.’” (Powell Sentencing Tr., R. 410 at 3–4.)

And the government assured Powell that it “didn’t have [him] for crack.” (Id.) But when Powell

received his PSI, it contained references to crack cocaine.

       The government agreed with Powell and explained that the reference to “crack” in the PSI

was a mistake:

       I think there may have been a communication involving another source of
       supply, but we have no evidence that Mr. Battle received crack cocaine from
       Mr. Powell. It was just his role to provide him with powder cocaine or others
       that could provide Mr. Battle with powder cocaine and then Mr. Battle would
       cook it and create crack cocaine.



                                                 3
No. 18-3654, United States v. Powell


(Id. at 5.) The government then explained Powell’s correct role in the conspiracy: “Mr. Powell’s

involvement was, in essence, as a supplier and/or an assistant in supplying powder cocaine to Mr.

Battle in which he later cooked into crack.” (Id. at 15.) The FBI also confirmed Powell’s role:

“My agent has just advised me that that the statement [in the PSI] is correct[ ] except for the word

‘crack’ cocaine. It was cocaine—$1,250 worth of cocaine.” (Id. at 6.) The district court said it

would correct the mistake: “The PSI may refer to crack. We will correct it by interlineation.” (Id.

at 15.) And it reiterated Powell’s role in the conspiracy, explaining that “Mr. Powell was involved

with powder which was later cooked by Mr. Battle into crack.” (Id. at 15.)

       Powell agreed with this explanation and fix. So even though Powell never directly sold

crack, Powell admitted that he conspired with Battle to distribute crack cocaine by providing him

with necessary powder cocaine. Powell also admitted that he voluntarily joined and participated

in this drug conspiracy—and that he knew he was possessing and distributing a controlled

substance. (Powell Plea Tr., R. 400 at 7; Factual Basis, R. 184 at 4–7.) This is enough to support

his guilty plea on plain error review. United States v. Garcia, 252 F.3d 838, 844 (6th Cir. 2001).

       Further, the district court did not commit any error (much less plain error) by clarifying the

factual basis for Powell’s plea at his sentencing hearing. “In reviewing whether a district court

had a factual basis for a plea, . . . we ‘may examine the entire record, including proceedings that

occurred after the plea colloquy.’” United States v. Mobley, 618 F.3d 539, 545 (6th Cir. 2010)

(quoting United States v. McCreary-Redd, 475 F.3d 718, 722 n.1 (6th Cir. 2007)). Thus, the

district court properly corrected the “powder versus crack cocaine” misunderstanding before

sentencing Powell. We affirm the district court’s decision regarding Powell’s guilty plea.

                                                 4
No. 18-3654, United States v. Powell


                                                III.

       Powell also challenges whether his prior conviction under Ohio Revised Code § 2925.03

qualifies as a controlled substance offense under the Sentencing Guidelines. If it does not, then

Powell’s enhancement as a career criminal was error.

       Before our decision in Havis, the problem for Powell was that we already answered this

question: “a conviction under [Ohio Revised Code § 2925.03(A)(1)] categorically qualifies as a

controlled substance offense under” the Sentencing Guidelines. Evans, 699 F.3d at 868. Indeed,

the government’s entire argument, correctly at that time, was that “Evans is and remains binding

authority and forecloses Powell’s attempt to revisit that holding here.” (Appellee’s Br. at 61.)

       But in Havis, we declined to defer to the Sentencing Commission’s commentary, “which

adds attempt crimes to the list of controlled substance offenses.” Havis, 927 F.3d at 386. In other

words, our “en banc court determined that attempt crimes no longer qualify as controlled substance

offenses for purposes of the career offender enhancement.” United States v. Garrett, No. 18-3816,

2019 WL 2443145, at *1 (6th Cir. June 11, 2019) (per curiam). So we reversed the defendant’s

sentence because his Tennessee conviction could not enhance his sentence “[b]ecause the least

culpable conduct covered [by the statute] is attempted delivery of a controlled substance.” Havis,

927 F.3d at 385.




                                                 5
No. 18-3654, United States v. Powell


       We therefore vacate the district court’s decision on Powell’s sentence and remand for the

limited purpose of resentencing Powell in light of Havis.2




       2
         To be sure, on remand, the government is not prevented from arguing that Powell’s
conviction under § 2925.03 still qualifies as a predicate offense for other reasons, including reasons
not addressed in Havis. See United States v. Baker, 559 F.3d 443, 455 (6th Cir. 2009).
                                                  6
