United States of America v. Daniel Frank Miller

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0103p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
DANIEL FRANK MILLER,
Defendant-Appellee.
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No. 21-5598
Appeal from the United States District Court for the Western District of Tennessee at Jackson.
No. 1:19-cr-10133-1—S. Thomas Anderson, District Judge.
Argued: March 17, 2022
Decided and Filed: May 12, 2022
Before: MOORE, COLE, and NALBANDIAN, Circuit Judges.
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COUNSEL
ARGUED: Kevin G. Ritz, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee,
for Appellant. M. Dianne Smothers, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Memphis, Tennessee, for Appellee. ON BRIEF: Kevin G. Ritz, William Joshua Morrow,
UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellant. M. Dianne
Smothers, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for
Appellee.
COLE, J., delivered the opinion of the court in which NALBANDIAN, J., joined.
MOORE, J. (pg. 9), delivered a separate dissenting opinion.
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No. 21-5598 United States v. Miller Page 2
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OPINION
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COLE, Circuit Judge. Daniel Miller pleaded guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the government objected to United
States Probation and Pretrial Services’ recommended offense level, arguing Miller’s prior
convictions for Tennessee drug delivery were “controlled substance offenses” under the United
States Sentencing Guidelines. But the district court rejected the government’s argument,
reasoning our decision in United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (per curiam) (en
banc), reconsideration denied 929 F.3d 317 (Mem.), controlled. Sitting en banc, we accepted the
Havis parties’ agreement that “the least culpable conduct” proscribed by Tennessee’s drug
delivery statute was “the attempted delivery of a controlled substance” and unanimously held
that attempt crimes were not “controlled substance offenses” because they were omitted from the
Guidelines’ text. Id. at 385, 387. Since then, however, we have repeatedly acknowledged that
“the parties’ assumption in Havis was wrong.” United States v. Booker, 994 F.3d 591, 596 (6th
Cir. 2021) (collecting cases). In this case, we clarify that the parties in Havis were mistaken
about the scope of Tennessee’s drug delivery statute. Because our legal determinations cannot
be dictated by parties’ stipulations, we evaluate the statute anew and conclude it is a controlled
substance offense. Accordingly, we vacate Miller’s sentence and remand to the district court for
resentencing.
I. BACKGROUND
Just before 10 p.m. on March 23, 2019, law enforcement arrested Miller at his home for
failure to appear in McNairy County General Sessions Court. 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, in
violation of 18 U.S.C. § 922(g)(1). Probation recommended a base offense level of 14.
The government objected to Probation’s recommendation. It argued Miller’s three prior
Tennessee felony convictions for drug delivery were “controlled substance offenses” under

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No. 21-5598 United States v. Miller Page 3
§ 4B1.2(b) of the Guidelines. In the government’s view, Miller’s base offense level should have
been set at 24. Probation, however, stood firm. It maintained that our en banc decision in Havis
foreclosed the government’s position.
Havis is an unusual case. There, we granted en banc review to consider the “narrow”
question of what role the Guidelines’ commentary plays in interpreting its text. Havis, 927 F.3d
at 384. After describing the function of the Sentencing Commission, we explained that
“commentary to the Guidelines . . . has no independent legal force” because it does not “pass[]
through the gauntlets of congressional review or notice and comment.” Id. at 386 (citing, e.g.,
Stinson v. United States, 508 U.S. 36, 44–46 (1993)). For that reason, we unanimously held the
Guidelines’ definition of “controlled substance offense” does not include attempt crimes because
the Guideline’s text included only completed offenses. Id. at 387. To reach that conclusion, we
first accepted the parties’ agreement that the least culpable conduct criminalized under
Tennessee’s drug delivery statute, Tenn. Code Ann. § 39-17-417, was the attempted delivery of a
controlled substance. Id. at 385. Based on that representation, we concluded that Tennessee’s
drug delivery statute was not a “controlled substance offense.” Id. at 387.
When the government moved for reconsideration, one member of the en banc panel
suggested the parties’ stipulation about § 39-17-417’s scope may have been wrong. See
929 F.3d at 320 (Havis II) (Sutton, J., concurring in denial of en banc reconsideration).
Tennessee defines “delivery” as “the actual, constructive, or attempted transfer from one person
to another of a controlled substance.” Tenn. Code Ann. § 39-17-402(6). After analyzing the
various provisions in play, the separate writing explained that “[s]omeone who attempts to
transfer drugs in Tennessee has committed the completed offense of delivery under § 39-17-
417(a)(2),” but “someone who attempts to deliver drugs . . . has committed the lesser-included,
but distinct, offense of attempted delivery under § 39-12-101(a).” Havis II, 929 F.3d at 320
(second and fourth emphases added). As a result, “a person who commit[ted] a completed
delivery offense under Tennessee law”—like Havis—“may merit a guidelines bump” after all.
Id. “But the government, even in its motion for reconsideration, did not make this argument,” so
the issue was left for “future cases” to resolve. Id.

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No. 21-5598 United States v. Miller Page 4
Since then, subsequent decisions have consistently stressed that the parties’ agreement in
Havis was wrong while reiterating that Havis’s ultimate holding—that the Guidelines’
commentary cannot add offenses to the Guidelines themselves—was correct. See, e.g., Booker,
994 F.3d at 596 (analyzing Michigan’s identically-worded delivery statute); United States v.
Elliott, 835 F. App’x 78, 81 (6th Cir. 2020) (same); United States v. Thomas, 969 F.3d 583, 585
(6th Cir. 2020) (per curiam) (same); United States v. Garth, 965 F.3d 493, 497 (6th Cir. 2020)
(discussing Tennessee’s possession-with-intent-to-deliver statute). These observations have
come most often in the context of Michigan law. Like Tennessee, Michigan defines “deliver” or
“delivery” as “the actual, constructive, or attempted transfer . . . of a controlled substance[.]”
Mich. Comp. Laws § 333.7105(1). We have made clear that, under this provision, “an
‘attempted transfer’” is not an attempt crime; rather, it “constitutes a completed delivery[.]”
Booker, 994 F.3d at 596 (citations omitted). But we have not had an opportunity to clarify the
same with respect to Tennessee’s delivery statute. But see Garth, 965 F.3d at 497–98 (holding
possession with intent to deliver is a completed crime under Tennessee law).
This brings us back to the instant case. Left to muddle through Havis and its conflicting
progeny, the district court observed it was still “constrained . . . to follow Havis” and ultimately
concluded that Miller’s previous Tennessee convictions for completed drug delivery were not
controlled substance offenses under the Guidelines. As a result, it adopted Probation’s
recommended base offense level of 14. After decreasing Miller’s offense level by two for
acceptance of responsibility, the district court imposed a 36-month sentence. The government
appealed.
II. ANALYSIS
Whether a prior conviction counts as a “controlled substance offense” is a question of law
we review de novo. Havis, 927 F.3d at 384.
We use a three-step categorical approach to determine whether prior convictions count as
a controlled-substance offense under the Guidelines. Garth, 965 F.3d at 495. We start by
“map[ping] out what conduct is criminalized under the [G]uidelines’ definition.” Id. Then, we
“do the same” for the “state law that led to the conviction.” Id. The third and final step requires

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No. 21-5598 United States v. Miller Page 5
us to “overlay the two” to assess whether “the [G]uidelines . . . fully envelop the state law of
conviction.” Id. If it does, then the conviction qualifies as a controlled substance offense. If it
does not, then the statute does not “categorically qualif[y] as a controlled substance offense,” and
it cannot be used to enhance the defendant’s base offense level. Havis, 927 F.3d at 385.
We begin at step one. Section 4B1.2(b) of the Guidelines defines “controlled substance
offense” as:
[A]n offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or the possession
of a controlled substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
U.S.S.G. § 4B1.2(b). Stated differently, a controlled substance offense is “a federal or
state felony conviction for possessing a controlled substance with intent to distribute[.]” Garth,
965 F.3d at 496. Under federal law, “distribute” means “to deliver,” and “deliver” means “the
actual, constructive, or attempted transfer of a controlled substance[.]” 21 U.S.C. § 802(8), (11).
As we have mentioned, only completed crimes fall within the ambit of a controlled substance
offense; attempt crimes do not. Havis, 927 F.3d at 387.
Next, we confront step two. Tennessee’s delivery statute in part provides:
“It is an offense for a defendant to knowingly . . . [d]eliver a controlled substance.”
Tenn. Code Ann. § 39-17-417(a)(2). Tennessee also criminalizes “knowingly . . . deliver[ing]
methamphetamine[.]” Id. § 39-17-434(a)(2). And just like federal (and Michigan) law,
Tennessee defines “deliver” and “delivery” in both as “the actual, constructive, or attempted
transfer . . . of a controlled substance.” Compare id. § 39-17-402(6), with 21 U.S.C. § 802(8),
(11), and Mich. Comp. Laws § 333.7105(1); see also Garth, 965 F.3d at 496 (explaining that
Tennessee’s drug laws were patterned after federal law).
Neither party disputes that Miller was previously convicted under Tenn. Code Ann. § 39-
17-402(a)(2) for delivery of morphine and twice under § 39-17-434(a)(2) for delivery of
methamphetamine. And the parties agree that the two state statutes are functionally identical for
the purpose of deciding the issue on appeal. But the parties contest whether “the

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No. 21-5598 United States v. Miller Page 6
[G]uidelines . . . fully envelop” Miller’s Tennessee drug delivery convictions after Havis. Garth,
965 F.3d at 495.
Citing Havis, Miller argues that—unlike federal or Michigan law—it is possible for a
defendant to be convicted of delivery in Tennessee when the evidence only establishes attempted
delivery. He supports this contention by offering a detailed history of the definition of
“delivery,” a side-by-side comparison of Michigan and Tennessee law, and an analysis of how
other states have treated the same (or similar) definitions of “delivery” inconsistently. What his
argument misses, however, is that Tennessee (like Michigan and federal law) defines “delivery”
to encompass “attempted transfers” and criminalizes attempts to violate the drug laws through a
separate statute. See Tenn. Code Ann. § 39-12-101(a); see also Havis II, 929 F.3d at 320.
Under Tennessee law, someone who attempts to deliver drugs has committed an offense
under § 39-12-101. See State v. Pinegar, No. M2015-02403-CCA-R3-CD, 2016 WL 6312036,
at *15–16 (Tenn. Crim. App. Oct. 28, 2016). Conversely, we now confirm that “[s]omeone who
attempts to transfer drugs in Tennessee has committed the completed offense of delivery under
§ 39-17-417(a)(2)[.]” Havis II, 929 F.3d at 320. This result brings Tennessee law into
conformity with our interpretation of the “substantially identical” definitions of “delivery” under
Michigan and federal law. See, e.g., Booker, 994 F.3d at 596 (“[W]e have held that, under
Michigan law, an attempted transfer constitutes a completed delivery rather than an attempt
crime. . . . The same applies to the analogous provisions of the [Controlled Substances Act].”
(internal quotations, emphasis, and citations omitted)).
Miller resists this conclusion, suggesting there is a “realistic probability” that Tennessee’s
delivery statute encompasses attempted delivery. See Gonzales v. Duenas-Alvarez, 549 U.S.
183, 193 (2007). To support his argument, he relies on State v. Faulkner, No. E2006-02094-
CCA-R3-CD, 2008 WL 2242531 (Tenn. Crim. App. June 2, 2008). In Faulkner, the defendant
argued a Tennessee delivery charge was “duplicitous” because “it necessarily include[d]
attempted delivery.” Id. at *14. The court stated that the trial judge’s decision not to instruct the
jury on “attempted delivery” was “proper” because “‘delivery,’ in effect, includes attempted
delivery.” Id. But as Miller himself recognizes, “[t]his one sentence conclusion is questionable
given that there are numerous cases thereafter where defendants are convicted of attempted

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No. 21-5598 United States v. Miller Page 7
delivery.” (Appellee Br. 15 (citing, e.g., Pinegar, 2016 WL 6312036, at *15–16 (discussing
§ 39-12-101 in conjunction with “attempted delivery”)).) And the lack of Tennessee caselaw
establishing that § 39-17-417(a)(2) criminalizes “attempted delivery” further suggests that
Miller’s argument raises no more than a “theoretical possibility” that Tennessee would “apply its
statute to conduct that falls outside” the Guidelines’ scope. United States v. Smith, 881 F.3d 954,
959 (6th Cir. 2018) (citations omitted).
With few arguments left at his disposal, Miller asserts that we are bound by Havis’s
determination that Tennessee delivery encompasses attempted delivery, and we cannot overrule
that “holding.” (Appellee Br. 8, 33–34.) But Miller misunderstands Havis’s ultimate
disposition. Again, in Havis, the en banc court confronted the “narrow” question of “whether the
definition of ‘controlled substance offense’ in § 4B1.2(b) includes attempt crimes” and held it
did not. 927 F.3d at 384–85, 387. We accepted—but did not interrogate—the parties’
agreement that the least culpable conduct criminalized by Tennessee’s delivery statute was
“attempted delivery.” Id. at 385. But we have “since determined that the parties’ assumption in
Havis was wrong.” See, e.g., Booker, 994 F.3d at 596.
When “[c]areful study and reflection” convince a reviewing court that an “assumption”
on which a case was decided was “erroneous,” the court is “not bound to follow” the prior case,
particularly where, as here, “the point now at issue was not fully debated.” Cent. Va. Cmty. Coll.
v. Katz, 546 U.S. 356, 363 (2006) (citing Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399–400
(1821)); see also United States v. Lucido, 612 F.3d 871, 876 (6th Cir. 2010) (“Cases implicating
issues that ‘merely lurk in the record, neither brought to the attention of the court nor ruled
upon,’ do not establish binding precedent on an unexamined point.” (quotation omitted)). But
we are now in a position to correct the Havis parties’ faulty assumption about § 39-17-417’s
scope without disrupting Havis’s true holding.
Were we to allow the Havis parties’ agreement to control, we would contravene our duty
to decide questions of law and inappropriately cede our authority to private parties. Parties’
mutual agreement about a statute’s interpretation does not—and cannot—tie the judiciary’s
hands. See, e.g., Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 290 (1917) (“[T]he
[C]ourt cannot be controlled by agreement of counsel on a subsidiary question of law.”); Neuens

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No. 21-5598 United States v. Miller Page 8
v. City of Columbus, 303 F.3d 667, 670 (6th Cir. 2002) (“Issues of law are the province of courts,
not of parties to a lawsuit, individuals whose legal conclusions may be tainted by self-interest.
Courts, accordingly, are not bound to accept as controlling, stipulations as to questions of law.”
(internal quotations and citations omitted)). Allowing the Havis parties’ mutual error to continue
to bind us to an erroneous interpretation of Tennessee law threatens the proper administration of
justice.
As a last resort, Miller argues Tennessee’s definition of “delivery” is ambiguous and the
rule of lenity should apply. The government counters that this case is about the Guidelines’
definition of “controlled substance offense” rather than Tennessee’s definition of delivery, so
Miller’s argument holds no water. Regardless, the rule of lenity is not implicated here. As the
Supreme Court has repeatedly stressed, the rule of lenity “applies only when a criminal statute
contains a ‘grievous ambiguity or uncertainty,’ and ‘only if, after seizing everything from which
aid can be derived,’ the Court ‘can make no more than a guess as to what Congress intended.’”
Ocasio v. United States, 578 U.S. 282, 295 n.8 (2016) (quoting Muscarello v. United States, 524
U.S. 125, 138–139 (1998)). Those circumstances are notably absent from this case. See
generally Havis, 927 F.3d at 386 (analyzing § 4B1.2 without flagging an ambiguity); Havis II,
929 F.3d at 320 (discussing Tennessee’s delivery statute). Without a “grievous ambiguity,” the
rule of lenity is not triggered.
III. CONCLUSION
We vacate Miller’s sentence and remand to the district court for resentencing.

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DISSENT
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KAREN NELSON MOORE, Circuit Judge, dissenting. Only the Supreme Court or this
court sitting en banc may overrule circuit precedent. Miller v. Caudill, 936 F.3d 442, 447–48
(6th Cir. 2019). In United States v. Havis, a unanimous en banc court held that the district court
incorrectly increased a defendant’s offense level based on a Tennessee conviction “[b]ecause the
least culpable conduct covered by § 39-17-417 is attempted delivery of a controlled substance.”
927 F.3d 382, 387 (6th Cir. 2019) (en banc) (per curiam). No judge on the en banc court
examined the assumption underlying that holding. When the government moved for
reconsideration, only now-Chief Judge Sutton wrote to question the parties’ underlying
assumption. United States v. Havis, 929 F.3d 317, 320 (6th Cir. 2019) (Mem.) (Sutton, J.,
concurring in the denial of en banc reconsideration). Not a single other judge joined his separate
writing. As a panel of this court, we must honor that choice of our full court to adhere to our
original unanimous en banc decision.
Of course, the assumptions underlying the Supreme Court’s previous opinions do not
bind the Supreme Court. See Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006). When
parties before a panel of this court agree to an incorrect legal conclusion, moreover, that panel
need not accept that conclusion. See Neuens v. City of Columbus, 303 F.3d 667, 670 (6th Cir.
2002). But when an en banc court passes over an opportunity to reexamine an assumption, that
decision binds a subsequent panel. See Martinez v. LaRose, 980 F.3d 551, 558 (6th Cir. 2020)
(Moore, J., dissenting from the denial of rehearing en banc) (“Any attempt to decide the status of
binding en banc precedent should be done properly with briefing and concerted discussion by the
full en banc court.”). If a majority of the judges on this court wishes to change its mind, it must
take the case en banc. I decline to rely on the tenuous distinction between a “true” or “ultimate”
holding and another, equally binding holding—one that the en banc court had ample opportunity
to reexamine—to overturn a unanimous en banc opinion. Accordingly, I respectfully dissent.

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