In 2017, Havis pled guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Under the Sentencing Guidelines, a person convicted under § 922(g)(1) starts with a base offense level of 14; but that level increases to 20 if the defendant has a prior conviction for a “controlled substance offense.” See USSG §§ 2K2.1(a)(4), (a)(6). At sentencing, the district court decided that Havis’s 17-year-old Tennessee conviction for selling and/or delivering cocaine was a controlled substance offense under the Guidelines. Havis objected because the Tennessee statute at issue criminalizes both the “sale” and “delivery” of cocaine, and his charging documents did not specify whether his conviction was for sale, delivery, or both. See Tenn. Code Ann. § 39-17-417(a)(2)–(3). Under Tennessee law, “delivery” of drugs means “the actual, constructive, or attempted transfer from one person to another of a controlled substance.” Id. § 39-17-402(6) (emphasis added). Havis therefore argued that his Tennessee conviction was not a controlled substance offense because it encompassed the mere attempt to sell cocaine, and the Guidelines’ definition of “controlled substance offense” does not include attempt crimes. See USSG § 4B1.2(b).1 The district court overruled Havis’s objection because an unpublished case of this circuit, United States v. Alexander, held that any violation of § 39-17-417 is a controlled substance offense. 686 F. App’x 326, 327–28 (6th Cir. 2017) (per curiam). In combination with other adjustments, that left Havis with a Guidelines range of 46 to 57 months. The district court sentenced him to 46 months, and he appealed.

 

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