United States v. Booker

994 F.3d 591

UNITED STATES of America, Plaintiff-Appellee,

v.John Louis BOOKER, Jr., Defendant-Appellant.

No. 20-1047

United States Court of Appeals, Sixth Circuit.

Decided and Filed: April 14, 2021

ON BRIEF: John F. Clark, CLARK LAW FIRM PLLC, Detroit, Michigan, for Appellant. Alexis M. Sanford, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

Before: GIBBONS, COOK, and LARSEN, Circuit Judges.

LARSEN, Circuit Judge.

John Booker pleaded guilty to one count of distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1). The district court sentenced Booker as a career offender under U.S.S.G. § 4B1.1, resulting in a prison term of 188 months. The district court also imposed a six-year term of supervised release with special conditions of supervision. On appeal, Booker challenges his career-offender status and his supervision conditions. We AFFIRM.

I.

In spring 2019, an undercover police officer was investigating a suspect named Julius Walker for narcotics offenses. The officer arranged on several occasions to purchase methamphetamine from Walker. John Booker accompanied Walker to one of these pre-arranged sales, and it was Booker who handed the officer Walker's drugs. Booker used this opportunity to let the officer know that he could offer methamphetamine at a better price. Booker then gave the officer his cell phone number. Over the course of the next month, Booker sold methamphetamine to the officer on three separate occasions.

Things unraveled for Booker at his fourth planned sale to the officer. Booker noticed police cars at the initial planned meeting location. He ultimately ended up fleeing, first by car—with a passenger and her two-year-old daughter in tow—and then on foot. Police eventually caught up with Booker. Once they apprehended him, officers dialed the phone number that Booker had used to arrange sales with the undercover officer. Booker's cell phone rang. He was arrested.

A federal grand jury indicted Booker on four counts of distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1). Booker pleaded guilty to the fourth charge, and the other three were dismissed. The district court sentenced Booker as a career offender based on his prior state convictions for unarmed robbery and for the "deliver[y]/manufacture" of a controlled substance. See U.S.S.G. § 4B1.1(a). That classification increased his offense level by two, making his advisory Guidelines range 188 to 235 months’ imprisonment. The district court sentenced Booker to a 188-month prison term and 6 years of supervised release. The court also imposed special supervised release conditions. Booker now appeals his sentence.

II.

Booker argues that he should not have been sentenced as a career offender and that the district court did not adequately explain its decision to apply the enhancement. Both claims fail.

A.

Because Booker challenged his career-offender status below, we review the application of this enhancement de novo. United States v. Havis , 927 F.3d 382, 384 (6th Cir. 2019) (en banc) (per curiam). To be a career offender, a defendant must have at least two prior felony convictions that qualify as "controlled-substance offenses" or "crimes of violence." United States v. Garth , 965 F.3d 493, 495 (6th Cir. 2020) (citing U.S.S.G. § 4B1.1 ). The defendant's instant offense of conviction must also fall into one of those categories.

U.S.S.G. § 4B1.1(a)(2). At issue here is what constitutes a controlled-substance offense, which the Guidelines define as "an offense under federal or state law ... that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance ... or the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 4B1.2(b). To determine whether an offense meets this definition, we use the "categorical approach," which demands that "the least of the acts criminalized by the elements of th[e] statute" of conviction "fall[ ] within the Guidelines’ definition." Havis , 927 F.3d at 384–85 (emphasis omitted).

Booker argues that his prior conviction under Mich. Comp. Laws § 333.7401 for the delivery or manufacture of a controlled substance and his instant conviction under 21 U.S.C. § 841(a)(1) for the distribution of a controlled substance are not valid career-offender predicates. For support, he relies on United States v. Havis , where we held that the Guidelines’ definition of " ‘controlled substance offenses’ does not include attempt crimes." 927 F.3d at 387. Michigan law defines "delivery" as "the actual, constructive, or attempted transfer from [one] person to another of a controlled substance." Mich. Comp. Laws § 333.7105(1) (emphasis added). The federal Controlled Substances Act (CSA) defines "distribute" as "to deliver" and, in turn, defines "deliver" substantially the same way Michigan does: to make an "actual, constructive, or attempted transfer of a controlled substance." 21 U.S.C. § 802(8), (11) (emphasis added). Because both definitions include "attempted transfer," Booker contends that the least conduct criminalized by each statute is "attempted delivery," meaning that neither can be a predicate offense under Havis .

However, Booker admits that binding precedent forecloses his argument with respect to the Michigan statute. See United States v. Thomas , 969 F.3d 583, 585 (6th Cir. 2020) (per curiam). Still, he suggests that we have not yet decided whether the federal statute qualifies as a predicate offense. Yet our prior reasoning with regard to the Michigan statute maps squarely onto 21 U.S.C. § 841(a)(1). And we recently rejected an identical argument about § 841(a)(1), albeit in an unpublished opinion. See United States v. Morton , 843 Fed.Appx. 699, 701-02 (6th Cir. Jan. 28, 2021).

In United States v. Thomas , we held that convictions for "delivery" under Mich. Comp. Laws § 333.7401 are controlled-substance offenses. 969 F.3d at 585. We explained that the word "distribution" in the Guidelines’ definition of "controlled substance offense" takes on the definition given in the CSA. Id. ; see United States v. Jackson , 984 F.3d 507, 512 (6th Cir. 2021) ("[W]e routinely utilize the CSA (even after Havis ) in defining the relevant conduct covered by the [career-offender] Guidelines."). And, as we established above, the Michigan and CSA definitions are substantially identical. Compare Mich. Comp. Laws § 333.7105(1), with 21 U.S.C. § 802(8), (11). We held in Thomas that "the Michigan offense of delivery" is a controlled-substance offense. 969 F.3d at 585. Essential to our reasoning was the observation that the word "distribution" has the same definition in both the career-offender Guidelines and the CSA. See id. Thus, Thomas illustrates why Booker's § 841(a)(1) conviction is a predicate controlled-substance offense.

At first blush, that reasoning might spark some confusion. If the Guidelines and relevant statutes define predicate offenses to include the attempted transfer of a controlled substance, then what of the rule from Havis that attempt crimes don't count? Our caselaw eliminates that concern along with any confusion that might stem from Havis . See id. ; Garth , 965 F.3d at 497.

Havis addressed Tennessee's definition of "delivery," which is substantially identical to the Michigan and CSA definitions. See 927 F.3d at 384 (citing Tenn. Code Ann. § 39-17-402(6) ). In Havis , both parties agreed that, under this definition, the least conduct criminalized by the defendant's statute of conviction was the inchoate offense of "attempted delivery." Id. at 385. Based strictly on the parties’ shared assumption, we had occasion to decide whether the definition of "controlled substance offense" in U.S.S.G. § 4B1.2(b) includes attempt crimes, and we held that it does not. Id. at 387.

But we've since determined that the parties’ assumption in Havis was wrong. United States v. Elliott , 835 F. App'x 78, 81 (6th Cir. 2020) ; Thomas , 969 F.3d at 585. Federal law and Michigan law both codify attempted distribution or delivery separately from the completed offenses. See 21 U.S.C. § 846 ; Mich. Comp. Laws § 333.7407a(1) ; People v. Burton , 252 Mich.App. 130, 651 N.W.2d 143, 146 n.4 (2002). We must "construe statutes, where possible, so as to avoid rendering superfluous any parts thereof." Astoria Fed. Sav. & Loan Ass'n v. Solimino , 501 U.S. 104, 112, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991) ; see also Koenig v. City of S. Haven , 460 Mich. 667, 597 N.W.2d 99, 104 (1999) ("[A] court's duty is to give meaning to all sections of a statute and to avoid, if at all possible, nullifying one by an overly broad interpretation of another."). So, we have held that, under Michigan law, "an ‘attempted transfer’ constitutes a completed delivery rather than an attempt crime." United States v. Hill , 982 F.3d 441, 444 (6th Cir. 2020) (emphasis added) (quoting Thomas , 969 F.3d at 585 ); see also Garth , 965 F.3d at 497 (applying this reasoning to Tennessee's delivery statute). The same applies to the analogous provisions of the CSA. See Garth , 965 F.3d at 497 ; United States v. Havis , 929 F.3d 317, 319–20 (6th Cir. 2019) (Sutton, J., concurring in the denial of en banc reconsideration). Moreover, if we had taken a contrary route and held that "distribution encompasses attempted distribution," then "that would mean the guidelines’ definition of controlled-substance offenses does include attempted crimes—the very result we rejected in Havis ." Garth , 965 F.3d at 497.

It would be remarkable if Booker were right that § 841(a)(1) did not describe a "controlled substance offense" under U.S.S.G. § 4B1.2(b). In directing the Sentencing Commission to enact the career-offender Guidelines, Congress specifically instructed that "offense[s] described in ... 21 U.S.C. [§] 841" be covered. 28 U.S.C. § 994(h)(1)(B), (2)(B) ; Jackson , 984 F.3d at 511–12. Booker would have us hold that the Sentencing Commission failed to comply with...