United States v. Miller, No. 21-5598 (6th Cir. 2022)
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In 2019, Miller was arrested at his home for failure to appear. Police woke Miller up in his bedroom and searched his room and his person. They found methamphetamine, marijuana, and a shotgun at the end of his bed. Miller pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. 922(g)(1). At sentencing, the government objected to the PSR’s recommended offense level, arguing Miller’s prior convictions for Tennessee drug delivery were “controlled substance offenses” under the U.S.S.G. The district court rejected the government’s argument, citing Sixth Circuit precedent (Havis), which held that “the least culpable conduct” proscribed by Tennessee’s drug delivery statute was “the attempted delivery of a controlled substance” and attempt crimes were not “controlled substance offenses” because they were omitted from the Guidelines’ text.
The Sixth Circuit vacated, noting that it has repeatedly acknowledged that “the parties’ assumption in Havis was wrong.” The parties in Havis were mistaken about the scope of Tennessee’s drug delivery statute. Evaluating the statute anew, the court concluded it is a controlled substance offense and remanded for resentencing.
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