NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0405n.06

Case No. 19-5046

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL STEPHENS, a.k.a. Michael 

Williams,

Defendant-Appellant.

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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 conspiring 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 

resentencing. 

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 increased Stephens’ guidelines range 

from 130–162 months to 188–235 months. The court imposed a below-guidelines sentence of 180 
Case No. 19-5046, United States v. Stephens

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months, which we affirmed on appeal. United States v. Stephens, 651 F. App’x 445, 446–47 (6th 

Cir. 2016). 

A few weeks later, the Supreme Court clarified how to determine whether a crime qualifies 

as a “violent felony” 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). Although the Sentencing Commission 

deleted the residual clause in 2016, that change was not retroactive. See United States v. Jackson, 

901 F.3d 706, 708–10 (6th Cir. 2018). That meant the 2015 guidelines’ residual clause still 

governed Stephens’ resentencing. Id. at 708. And that 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, the district court concluded that Stephens’ prior convictions satisfied the

residual clause and that his guidelines range was still 188–235 months. Stephens 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 do not qualify for the career offender 
Case No. 19-5046, United States v. Stephens

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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 

substance . . . 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 substance] 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.

The 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 conspiracy offenses either,

U.S.S.G. § 4B1.2(b). Only the commentary lists “conspiring . . . 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.