NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0489n.06

No. 20-5026

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellant, )

) ON APPEAL FROM THE

v. ) UNITED STATES DISTRICT

) COURT FOR THE WESTERN

MONTRELL WELCH, ) DISTRICT OF TENNESSEE

)

Defendant-Appellee. ) OPINION

)

BEFORE: NORRIS, NALBANDIAN, and READLER, Circuit Judges.

ALAN E. NORRIS, Circuit Judge. Defendant Montrell Welch pleaded guilty to being a 

felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The government asked the 

district court to count two of defendant’s prior convictions as “controlled substance offenses” for 

the purposes of increasing his guidelines sentence. The district court declined, and the government 

appeals. Because those convictions constitute controlled substance offenses as defined under the 

guidelines, we vacate defendant’s sentence and remand to the district court for resentencing.

I.

Officers with the Memphis Police Department pulled over a car for expired dealer license 

plates. The driver had a suspended license, and the car smelled of marijuana. Defendant was in the 

front passenger seat, and officers observed him sweating, acting nervous, and breathing hard. 

Officers had the driver and defendant get out of the car, and a subsequent search revealed a loaded 

nine millimeter handgun, which turned out to be stolen. The driver denied that the gun was his.
United States v. Welch

No. 20-5026

2

Defendant ultimately was charged with being a felon in possession of a handgun and 

pleaded guilty without the benefit of a plea agreement. Defendant and the government disagreed 

about whether two of defendant’s prior convictions should be counted as controlled substance 

offenses for the purpose of calculating his base offense level under the sentencing guidelines. 

Defendant was convicted on two separate occasions in 2012 for possession of drugs with intent to 

sell, in violation of Tenn. Code Ann. § 39-17-417(a)(4). The probation officer and the government 

considered those to be controlled substance offenses and, after an increase for the stolen firearm, 

and reduction for acceptance of responsibility, calculated defendant’s guideline sentencing range

as ninety-two to one-hundred-fifteen months’ incarceration. Defendant argued that neither of these 

convictions meet the definition of a controlled substance offense, and so the guideline range should 

be thirty-three to forty-one months’ incarceration.

The district court sided with defendant and sentenced him at the low end of that range:

thirty-three months. The government filed this appeal.

II.

The sentencing guideline for felon in possession of a handgun provides for a variable base 

offense level depending on whether a defendant has prior convictions for crimes of violence or 

controlled substance offenses. USSG § 2K2.1(a). “Whether a prior conviction counts as a predicate 

offense under the Guidelines is a question of law subject to de novo review.” United States v. 

Havis, 927 F.3d 382, 384 (6th Cir. 2019) (en banc) (per curiam). The relevant sentencing guideline 

defines “controlled substance offense” as

an 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.

USSG § 4B1.2(b).
United States v. Welch

No. 20-5026

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When evaluating a criminal conviction to determine whether it qualifies as a predicate 

under the guidelines, sentencing courts are directed to use a categorical approach, looking “only 

to the fact of conviction and the statutory definition of the prior offense.” Taylor v. United States, 

495 U.S. 575, 602 (1990); see also Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). 

“Employing the categorical approach, we do not consider the actual conduct that led 

to . . . conviction under the Tennessee statute at issue; instead, we look to the least of the acts 

criminalized by the elements of that statute. Havis, 927 F.3d at 384.

Here, defendant’s two relevant prior convictions were for violations of Tenn. Code Ann. 

§ 39-17-417(a)(4), which makes it illegal to “[p]ossess a controlled substance with intent to 

manufacture, deliver or sell the controlled substance.” The definition of “deliver” in Tennessee 

includes an “attempted transfer from one person to another of a controlled substance.” Tenn. Code 

Ann. § 39-17-402(6) (emphasis added).

This court has long treated Tennessee possession with intent “as a categorical controlled 

substance offense” for sentencing purposes. United States v. Douglass, 563 F. App’x 371, 377 (6th 

Cir. Apr. 17, 2014) (collecting cases). But defendant argues, and the district court agreed, that our 

decision in Havis abrogates that precedent. Havis held that conviction under Tenn. Code Ann. 

§ 39-17-417(a)(2), which makes it illegal to “[d]eliver a controlled substance,” did not constitute 

a controlled-substance offense because the least culpable conduct was an attempted delivery, and 

the guidelines’ definition does not include attempt offenses. 927 F.3d at 387. Defendant argues 

that his prior convictions similarly cannot be controlled-substance offenses under the categorical 

approach because the least culpable conduct can be construed as possession of a controlled 

substance with the intent to attempt to deliver.
United States v. Welch

No. 20-5026

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But we recently confirmed that

possession with intent to deliver is a completed crime, not an attempted one that 

Havis puts beyond the guidelines’ reach. Once a defendant knowingly possesses a 

controlled substance and harbors the intent to deliver it—which can be shown by 

the possession of a large quantity of drugs alone—the crime is complete. True, in 

many cases possession with intent to deliver will amount to an attempted delivery. 

But possession is the completed act the law here proscribes—no delivery need 

actually occur. See State v. Chearis, 995 S.W.2d 641, 645 (Tenn. Crim. App. 

1999); accord United States v. Faymore, 736 F.2d 328, 333 (6th Cir. 1984). 

Incomplete delivery doesn’t render the possession incomplete along with it.

United States v. Garth, 965 F.3d 493, 497 (6th Cir. 2020). We concluded that even after Havis a 

conviction under § 39-17-417(a)(4) for “possession with intent to deliver is categorically a 

controlled-substance offense under U.S.S.G. § 4B1.2(b).” Id. at 498.

III.

Accordingly, we must vacate defendant’s sentence and remand the case to the district 

court for resentencing consistent with this opinion.