                                  RECOMMENDED FOR FULL-TEXT PUBLICATION
                                       Pursuant to Sixth Circuit Rule 206
                                               File Name: 06a0071p.06

                         UNITED STATES COURT OF APPEALS
                                          FOR THE SIXTH CIRCUIT
                                            _________________


                                                              X
                                        Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                               -
                                                               -
                                                               -
                                                                   No. 04-5981
               v.
                                                               ,
                                                                >
 ERIKI GALLOWAY,                                               -
                                       Defendant-Appellee. -
                                                              N
                                Appeal from the United States District Court
                             for the Western District of Tennessee at Memphis.
                             No. 02-20355—Bernice B. Donald, District Judge.
                                              Argued: July 27, 2005
                                    Decided and Filed: February 27, 2006
             Before: ROGERS and SUTTON, Circuit Judges; FORESTER, District Judge.*
                                               _________________
                                                     COUNSEL
ARGUED: David C. Henry, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee,
for Appellant. Kemper B. Durand, THOMASON, HENDRIX, HARVEY, JOHNSON &
MITCHELL, Memphis, Tennessee, for Appellee. ON BRIEF: David C. Henry, ASSISTANT
UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellant. Kemper B. Durand,
THOMASON, HENDRIX, HARVEY, JOHNSON & MITCHELL, Memphis, Tennessee, for
Appellee.
                                               _________________
                                                   OPINION
                                               _________________
       KARL FORESTER, Senior District Judge. The United States appeals the district court’s
decision not to sentence Eriki Galloway as a career offender under § 4B1.1 of the United States
Sentencing Guidelines. For the reasons set forth below, we REVERSE and REMAND for
resentencing.




         *
         The Honorable Karl S. Forester, Senior United States District Judge for the Eastern District of Kentucky, sitting
by designation.


                                                            1
No. 04-5981           United States v. Galloway                                                  Page 2


                                                   I.
        On September 18, 2002, a Federal Grand Jury sitting in the Western District of Tennessee
returned a one count indictment against Eriki Galloway charging that on or about September 5,
2002, in the Western District of Tennessee, Galloway did unlawfully, knowingly and intentionally
possess with the intent to distribute a schedule II controlled substance, to wit: approximately 211
grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). On January 15, 2003, Galloway entered
a voluntary guilty plea to one count of possessing approximately 211 grams of cocaine base with
intent to distribute in violation of 21 U.S.C. § 841(a)(1). In exchange for his plea, the Government
agreed to recommend that Galloway receive a sentencing reduction for acceptance of responsibility
and that he be sentenced at the low end of his guideline range. The Presentence Investigation Report
(PSR) prepared in Galloway’s case recommended that he receive a three-level enhancement under
U.S.S.G. § 4B1.1 for being a career criminal. This conclusion was based on Galloway’s two prior
felony convictions: (1) a 1989 conviction for unlawfully possessing a controlled substance with the
intent to sell; and (2) a 1991 conviction of attempting to commit a felony. The PSR concluded that
these two convictions were controlled substance violations as defined by § 4B1.2 of the Sentencing
Guidelines. Galloway objected to the imposition of the career offender enhancement.
         The dispute in this case centers on Galloway’s 1991 Tennessee conviction for attempt to
commit a felony. In 1991, Galloway was indicted for unlawful possession of a controlled substance,
hydromorphone, with intent to sell. However, Galloway later pled guilty to “attempt to commit a
felony” under Tennessee Code Annotated § 39-12-101. The district court determined that
Galloway’s conviction for attempt to commit a felony was not a controlled substance offense. The
district court concluded that neither the record of Galloway’s conviction for “attempt to commit a
felony” nor the statutory elements of that offense indicated that he was convicted of a controlled
substance violation in 1991. The district court noted that the Tennessee attempt statute was
“generalized,” and that as a logical matter attempt is not an offense, but must be connected to
another crime. However, the district court declined to examine the indictment because Galloway
was not convicted of the charge appearing in the indictment. The district court thus concluded that
the career offender guideline was inapplicable to Galloway because he had not been convicted of
two controlled substance offenses.
                                                   II.
        This Court reviews a district court’s legal conclusions regarding the Sentencing Guidelines
de novo. United States v. Garner, 940 F.2d 172, 174 (6th Cir. 1991). Moreover, we review a district
court's factual findings in applying the Sentencing Guidelines for clear error. See United States v.
Latouf, 132 F.3d 320, 331 (6th Cir.1997).
        A defendant is considered a career offender under the Guidelines if he is currently being
sentenced for a controlled substance violation and he has at least two prior felony convictions for
controlled substance offenses. U.S.S.G. § 4B1.1 (2002). “Controlled substance offense” is defined
as a federal or state offense that prohibits the manufacture, import, export, distribution, or dispensing
of a controlled substance, or possession with intent to manufacture, import, export, distribute or
dispense a controlled substance. U.S.S.G. § 4B1.2(b). The definition of a controlled substance
offense includes the offenses of aiding and abetting, conspiring and attempting to commit such
offenses. Id. at Application Note 1. A specific, technical approach is taken in cases such as
Galloway’s where it is unclear whether a prior conviction qualifies as a controlled substance offense.
        In order to determine whether a defendant’s prior conviction is a “controlled substance
offense” for purposes of § 4B1.1, the Sixth Circuit has adopted a “categorical” approach. See United
States v. Martin, 378 F.3d 578, 581 (6th Cir. 2004) (employing a categorical approach to determine
whether a particular offense constituted a “crime of violence” under the Guidelines); United States
No. 04-5981           United States v. Galloway                                                Page 3


v. Butler, 207 F.3d 839, 842-43 (6th Cir. 2000) (employing a categorical approach to determine
whether a particular offense constituted a “controlled substance offense” or “crime of violence”
under the Guidelines). Generally speaking, only the fact of the prior conviction and the statutory
definition of the predicate offense are used to determine whether a prior conviction is a controlled
substance offense. Butler, 207 F.3d at 843; see Martin, 378 F.3d at 581. “Under this approach, it
is not only impermissible, but pointless, for the court to look through to the defendant’s actual
criminal conduct. . . . Indeed, the categorical approach eliminates the practical difficulties and
potential unfairness of a factual approach to each prior conviction.” Butler, 207 F.3d at 843 (internal
quotations and citations omitted). If, however, “the relevant statute of conviction does not supply
a clear answer to [whether the defendant committed a controlled substance offense] the sentencing
court may consult the indictment and either the jury instructions or plea agreement for the specific
conduct with which the defendant was charged in order appropriately to characterize the offense.”
Martin, 378 F.3d at 581.
        The categorical approach used to determine the nature of a prior offense was confirmed by
the Supreme Court in Shepard v. United States, 125 S.Ct. 1254 (2005). The decision also explicitly
stated what documents can be used by the district court to characterize a prior felony for purposes
of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Shepard was convicted of burglary
in Massachusetts, and whether his prior conviction was a violent felony, as defined in the ACCA,
became an issue. Under the ACCA, “generic burglary” is a predicate violent felony, defined by the
Supreme Court as the “unlawful or unprivileged entry into, or remaining in, a building or structure,
with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 599 (1990). However, some
states define burglary more broadly, including, for instance, breaking and entering a car; a burglary
statute with such a broader definition is referred to by the Supreme Court as “non-generic burglary.”
Shepard, 125 S.Ct. at 1257. If a defendant is convicted of non-generic burglary, the conviction may
or may not qualify as a predicate violent felony under the ACCA. The question thus became what
sources may a district court consult to determine whether a state court conviction for non-generic
burglary qualified as a predicate violent felony.
        In Shepard, the First Circuit concluded that a district court could consider complaint
applications and police reports in determining whether a defendant’s prior conviction for burglary
qualified as a violent felony under the ACCA. Shepard, 125 S.Ct. at 1258-59. The Supreme Court
reversed, stating “that a later court determining the character of an admitted burglary is generally
limited to examining the statutory definition, charging document, written plea agreement, transcript
of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”
Id. at 1257.
        By extension, Shepard sets out what a district court may consider in determining whether
a defendant has committed a “controlled substance offense” under sentencing guideline 4B1.1.
Galloway was convicted of “attempt to commit a felony,” which from the face of the statute may
or may not qualify as a controlled substance offense. Whether a defendant who is convicted of non-
generic burglary has committed a predicate violent felony under the ACCA is similar to the issue
presented in this case. The district court addressed what documents it could consult to determine
the nature of Galloway’s prior conviction for attempt to commit a felony within the confines of the
categorical approach adopted by the Sixth Circuit. In the instant case, the district court adopted a
narrower approach to what documents may be used to determine the nature of a prior conviction
than did the Supreme Court in Shepard.
        While Shepard involves the definition of a violent felony under the ACCA, we conclude that
Shepard’s holding is fully applicable to Sentencing Guideline cases that require a court to determine
the nature of a prior conviction when the defendant has a prior conviction under a generic statute
that may or may not serve as a predicate for a sentencing enhancement. Shepard’s discussion has
been used to determine whether a prior conviction is a “drug trafficking offense” under § 2L1.2 of
No. 04-5981           United States v. Galloway                                               Page 4


the Sentencing Guidelines. See United States v. Gutierrez-Ramirez, 405 F.3d 352, 358 (5th Cir.
2005). Further, Taylor’s holding has been consistently applied in cases addressing whether a
defendant has committed a “violent felony” or “controlled substance offense” under the career
offender Guideline. See Martin, 378 F.3d at 581; Butler, 207 F.3d at 843. Thus, we find that
Shepard is applicable in determining whether Galloway’s 1991 attempt conviction qualifies as a
controlled substance offense under § 4B1.1 of the Guidelines.
        The district court correctly concluded that whether Galloway’s 1991 conviction is a
controlled substance offense is not evident from the judgment or the elements of the offense.
Therefore, the district court was required to look to the indictment or guilty plea in order to
characterize the offense. There was no written plea agreement presented and the district court
refused to look at the 1991 indictment because Galloway was convicted of a crime other than the
one charged in the indictment. We need not address whether this decision was sound. Under the
Supreme Court’s discussion in Shepard, a district court may also look to the plea colloquy in order
to characterize a defendant’s prior conviction as a predicate offense under the career offender
guideline.
       A review of the 1991 plea colloquy reveals that this offense was a controlled substance
offense. During the plea colloquy, Galloway was asked, “Okay. Now, they searched you with
possession of Dilaudid with intent to sell?”, to which Galloway responded, “Yes, Sir.” J.A. at 89.
Galloway’s counsel also stipulated to the fact that Galloway was in possession of forty-three tablets,
which tested positive for Dilaudid, when he was arrested. Based on Galloway’s plea colloquy, the
character of the 1991 conviction is apparent and the prior conviction qualifies as a controlled
substance offense. Galloway thus has two prior controlled substance convictions and the sentencing
enhancement of § 4B1.1 is applicable.
                                                 III.
       For the foregoing reasons, we reverse Galloway’s sentence and remand the case for
resentencing in accordance with this opinion.
