Sentencing; Whether defendant was properly sentenced as a “career offender” under USSG § 4B1; United States v. Garth; Whether his prior Michigan convictions for delivery of heroin and possession with intent to deliver marijuana qualified as “controlled-substance offenses” for purposes of the career-offender enhancement; § 4B1.2; Gonzales v. Duenas- Alvarez; 21 USC § 802(8) & (11); MCL 333.7105; United States v. Havis

The court affirmed the district court, holding that defendant-Thomas was properly sentenced as a “career offender” where his two Michigan convictions for delivery of heroin and possession with intent to deliver marijuana qualified as “controlled-substance offenses” under the Sentencing Guidelines. Thomas pled guilty to two counts of distributing a mixture containing heroin and was sentenced as a career offender. He argued that his prior Michigan convictions were not controlled-substance offenses under § 4B1.2. and could not support the enhancement. But the court disagreed, noting that “[t]he Guidelines define both distribution and possession with the intent to distribute as controlled-substance offenses[,]” and that “[u]nder federal law, ‘distribution,’ for purposes of both offenses, means ‘delivery’—‘the actual, constructive, or attempted transfer of a controlled substance[.]’” Because Michigan defines “delivery” in the same way, and because there is “no substantive difference between possession with the intent to distribute under federal law and possession with intent to deliver under Michigan law[,]” the court held that Thomas’s prior Michigan convictions were for controlled-substances offenses. It rejected his argument that Michigan has defined delivery to include “attempt crimes,” and that under Havis, “‘attempt crimes do not qualify as controlled substance offenses,’” holding that the “attempted” language in the Michigan statute only applies to attempted transfers. “And an attempted transfer qualifies as a completed delivery.” This distinction made the court’s decision in Havis inapplicable.