NOT RECOMMENDED FOR PUBLICATION File Name: 20a0405n.06
Case No. 1 9

- 50 46
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff

- Appell ee ,

v. MICHAEL STEPHENS, a

. k

. a . Michael Williams , Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

BEFORE: MOORE , SUTTON, and DONALD , Circuit Judges.
PER CURIAM

. Michael Stephens pleaded guilty to conspir ing to distribute drugs. He received a career

- offender enhancement on the ground that the offense counts as a “controlled substance offense.” U.S.S.G. § 4B1.2(b) . The government concedes error in light of United States
v. Havis , 927 F.3d 382 , 386

– 87 (6th Cir. 2019) (en banc ) (per curiam)

. We vacate and remand for

resen tencing.
In 2014 , Stephens pleaded guilty to conspiring to possess and distribute over 500 grams of cocaine. See 21 U.S.C. § § 841(a)(1), 846. The court treated him as a “career offender” under § 4B1.1(a) of the sentencing guidelines

. The designation i ncreased Stephens’ guidelines range from 130

– 162 months to 188

– 235 months. The court imposed a below

- guidelines sentence of 180Case No. 19

- 50 46 , United States v. Stephens

2

month s, which we affirmed on appeal. United States v. Stephens , 651 F. App ’ x 445, 44 6

– 47 (6th Cir. 2016). A few weeks later , the Supreme Court clarified how to d etermine whether a crime qualifies

as a “violent felon y ” under the Armed Career Criminal Act. Mathis v. United States , 136 S. Ct. 2243 (2016) ; see 18 U.S.C. § 924(e) ( 2)(B) . In light of that decision, the Court vacated our opinion and remanded for reconsideration

. Stephens v. United States , 137 S. Ct. 1334, 1334

– 35 (2017). We in turn remanded for resentencing. United States v. Stephens , 695 F. App’x 944 (6th Cir. 2017) (per curiam)

. But not before another case altered the landscape. In Beckles v. United States , the Supreme Court held that the guidelines ’ residual clause, unlike the Armed Career Criminal Act’s residual clause, was not subject to a due process void

- for

- vagueness challenge because the guidelines are not mandatory. 137 S. Ct. 886 , 892 (2017)

. A lthough the Sentencing Commission deleted th e residual clause in 2016, that change was not retroactive. See United States v. Jackson , 901 F.3d 706, 70 8

– 10 (6th Cir. 2018)

. That meant the 2015 guideline s’ residual clause still governed Stephens’ re sentencing. Id. at 708. And t hat meant Stephens’ Tennessee burglary convictions qualified as crimes of violence if they “involve[] conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (2015)

. At resentencing, t he district court concluded that Stephens’ prior convictions satisfied the residual clause and that his guidelines range was still 188

– 23 5 months . S tephens agreed but sought a downward variance to 130 months based on his efforts to rehabilitate himself in prison

. The government thought the original 180

- month sentence remained appropriate. Striking a balance, the district court settled on 144 months. Stephens appealed again. In the interim, still another case intervened

. United States v.
Havis held that attempted controlled substance offenses d o not qualify for the career offenderCase No. 19

- 50 46 , United States v. Stephens

3

enhancement

. 927 F.3d 382 , 386

– 87 (6th Cir. 2019) (en banc) (per curiam)

. Section 4B1.2(b) defines “controlled substance offense” as an offense punishable by more than a year in prison “ that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substanc e . . . or the possession of a controlled substance

. . . with intent to manufacture, import, export, distribute, or dispense

. ” It does not mention attempt crimes. Even though the commentary
says the term includes “attempting to commit [a controlled subs tance] offense[],” Havis reasoned that this was an impermissible addition to the guidelines’ text. 927 F.3d at 386

– 87 ; U.S.S.G. § 4B1.2(b) cmt

. n.1.
T he government concedes that Stephens no longer qualifies as a career offender under the reasoning of Havis

. Here the underlying conviction is for conspiracy to distribute cocaine , 21 U.S.C. § 846 , and the career offender guideline does not mention conspirac y offenses either,
U .S.S.G. § 4B1.2(b). Only the commentary lists “conspir ing

. . . to commit [a controlled substance] offense[]” as a qualifying offense. U.S.S.G. § 4B1.2(b) cmt

. n.1. In light of the government’s concession, we vacate and remand for resentencing.