* The Honorable Karl S. Forester, Senior United States Dist rict Judge for the Eastern District of Kentucky, sitting by designation. RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
File Name: 06a0071p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U NITED S TATES OF A MERICA , Plaintiff-Appellant,

v

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E RIKI G ALLOWAY , Defendant-Appellee. 

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> 

### , - - N No. 04-5981

Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 02-20355—Bernice B. Donald, District Judge.

Argued: July 27, 2005

Decided and Filed: February 27, 2006

Before: ROGERS and SUTTON, Circu it Judges; FORESTER, District Judge. *

_________________ COUNSEL

ARGUED: David C. Henry, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellant. Kemper B. Durand, THOMASON, HENDRIX, HARVEY, JOHNSON & MITCHELL, Memphis, Tennessee, for Appellee. ON BRIEF: David C. Henry, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tenness ee, for Appellant. Kemper B. Durand, THOMASON, HENDRIX, HARVEY, JOHNSON & MITCHELL, Memphis, Tennessee, for Appellee.

_________________ OPINION

_________________ KARL FORESTER, Senior District Judge. The United States appeals the district court’s decision not to sentence Eriki Galloway as a career offender under § 4B1.1 of the United States Sentencing Guidelines. For the reasons set forth below, we REVERSE and REMAND for resentencing.

1No. 04-5981 United States v. Galloway Page 2

I.
On September 18, 2002, a Federal Grand Jury s itting in the Western District of Tennessee returned a one count indictment against Eriki Galloway charging that on or about September 5, 2002, in the Western District of Tennessee, Ga lloway did unlawfully, knowingly and intentionally possess with the intent to distribute a schedule II controlled substance, to wit: approximately 211 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). On January 15, 2003, Galloway entered a voluntary guilty plea to one c ount of possessing approximately 211 grams of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1). In exchange for his plea, the Government agreed to recommend that Galloway receive a sentencing reduction for acceptance of responsibility and that he be sentenced at the low end of his guideline range. The Presentence Investigation Report (PSR) prepared in Galloway’s case recommended that he receive a three-level enhancement under U.S.S.G. § 4B1.1 for being a career criminal. Th is conclusion was based on Galloway’s two prior felony convictions: (1) a 1989 conviction for unlawfu lly possessing a controlled substance with the intent to sell; and (2) a 1991 conviction of attemp ting to commit a felony. The PSR concluded that these two convictions were controlled substance vi olations as defined by § 4B1.2 of the Sentencing Guidelines. Galloway objected to the imposition of the career offender enhancement.
The dispute in this case centers on Galloway’s 1991 Tennessee conviction for attempt to commit a felony. In 1991, Galloway was indicted fo r unlawful possession of a controlled substance, hydromorphone, with intent to sell. However, Ga lloway later pled guilty to “attempt to commit a felony” under Tennessee Code Annotated § 39-12-101. The district court determined that Galloway’s conviction for attempt to commit a fel ony was not a controlled substance offense. The district court concluded that neither the recordof Galloway’s conviction for “attempt to commit a felony” nor the statutory elements of that offens e indicated that he was convicted of a controlled substance violation in 1991. The district court noted that the Tennessee attempt statute was “generalized,” and that as a logical matter attempt is not an offense, but must be connected to another crime. However, the district court decl ined to examine the indictment because Galloway was not convicted of the charge appearing in the i ndictment. The district court thus concluded that the career offender guideline was inapplicable to Galloway because he had not been convicted of two controlled substance offenses.

II.
This Court reviews a district court’s legal conclusions regarding the Sentencing Guidelines de novo

. United States v. Garner , 940 F.2d 172, 174 (6th Cir. 1991). Moreover, we review a district court's factual findings in applying the Sentencing Guidelines for clear error. See United States v. Latouf , 132 F.3d 320, 331 (6th Cir.1997).

A defendant is considered a career offender under the Guidelines if he is currently being sentenced for a controlled substance violation and he has at least two prior felony convictions for controlled substance offenses. U.S.S.G. § 4B1.1 ( 2002). “Controlled substance offense” is defined as a federal or state offense that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance, or possession with inte nt to manufacture, import, export, distribute or dispense a controlled substance. U.S.S.G. § 4B1.2(b). The definition of a controlled substance offense includes the offenses of aiding and abetting, conspiring and attempting to commit such offenses. Id . at Application Note 1. A specific, technical approach is taken in cases such as Galloway’s where it is unclear whether a prior convi ction qualifies as a controlled substance offense.
In order to determine whether a defendant’s prior conviction is a “controlled substance offense” for purposes of § 4B1.1, the Sixth Circ uit has adopted a “categorical” approach. See United States v. Martin , 378 F.3d 578, 581 (6th Cir. 2004) (employing a categorical approach to determine whether a particular offense constituted a “crime of violence” under the Guidelines); United StatesNo. 04-5981 United States v. Galloway Page 3

v. Butler , 207 F.3d 839, 842-43 (6th Cir. 2000) (employing a categorical approach to determine whether a particular offense constituted a “controlled substance offense” or “crime of violence” under the Guidelines). Generally speaking, only the fact of the prior conviction and the statutory definition of the predicate offense are used to de termine whether a prior conviction is a controlled substance offense. Butler , 207 F.3d at 843; see Martin , 378 F.3d at 581. “Under this approach, it is not only impermissible, but pointless, for the court to look through to the defendant’s actual criminal conduct. . . . Indeed, the categorical approach eliminates the practical difficulties and potential unfairness of a factual appr oach to each prior conviction.” Butler , 207 F.3d at 843 (internal quotations and citations omitted). If, however, “the relevant statute of conviction does not supply a clear answer to [whether the defendant committe d a controlled substance offense] the sentencing court may consult the indictment and either the ju ry instructions or plea agreement for the specific conduct with which the defendant was charged in order appropriately to characterize the offense.” Martin , 378 F.3d at 581.
The categorical approach used to determine th e nature of a prior offense was confirmed by the Supreme Court inShepard v. United States

, 125 S.Ct. 1254 (2005). The decision also explicitly stated what documents can be used by the district court to characterize a prior felony for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Shepard was convicted of burglary in Massachusetts, and whether his prior convicti on was a violent felony, as defined in the ACCA, became an issue. Under the ACCA , “generic burglary” is a predi cate violent felony, defined by the Supreme Court as the “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor v. United States , 495 U.S. 575, 599 (1990). However, some states define burglary more broa dly, including, for instance, breaki ng and entering a car; a burglary statute with such a broader definition is referre d to by the Supreme Court as “non-generic burglary.” Shepard , 125 S.Ct. at 1257. If a defendant is convict ed of non-generic burglary, the conviction may or may not qualify as a predicate violent fel ony under the ACCA. The question thus became what sources may a district court consult to determin e whether a state court conviction for non-generic burglary qualified as a predicate violent felony.

In Shepard , the First Circuit concluded that a district court could consider complaint applications and police reports in determining wh ether a defendant’s prior conviction for burglary qualified as a violent felony under the ACCA. Shepard , 125 S.Ct. at 1258-59. The Supreme Court reversed, stating “that a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, char ging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by th e trial judge to which the defendant assented.” Id . at 1257.
By extension, Shepard sets out what a district court may consider in determining whether a defendant has committed a “controlled substance offense” under sentencing guideline 4B1.1. Galloway was convicted of “attempt to commit a felony,” which from the face of the statute may or may not qualify as a controlled substance offens e. Whether a defendant who is convicted of nongeneric burglary has comm itted a predicate violent felony under the ACCA is similar to the issue presented in this case. The district court addressed what documents it could consult to determine the nature of Galloway’s prior conviction for attemp t to commit a felony within the confines of the categorical approach adopted by the Sixth Circuit. In the instant case, the district court adopted a narrower approach to what documents may be used to determine the nature of a prior conviction than did the Supreme Court in Shepard

.
While Shepard involves the definition of a violent fe lony under the ACCA, we conclude that Shepard ’s holding is fully applicable to Sentencing Guid eline cases that require a court to determine the nature of a prior conviction when the defendant has a prior conviction under a generic statute that may or may not serve as a pred icate for a sentencing enhancement. Shepard ’s discussion has been used to determine whether a prior convic tion is a “drug trafficking offense” under § 2L1.2 ofNo. 04-5981 United States v. Galloway Page 4

the Sentencing Guidelines. See United States v. Gutierrez-Ramirez , 405 F.3d 352, 358 (5th Cir. 2005). Further, Taylor ’s holding has been consistently applied in cases addressing whether a defendant has committed a “violent felony” or “controlled substance offense” under the career offender Guideline. See Martin , 378 F.3d at 581; Butler , 207 F.3d at 843. Thus, we find that Shepard is applicable in determining whether Galloway’s 1991 attempt conviction qualifies as a controlled substance offense under § 4B1.1 of the Guidelines.
The district court correctly concluded that whether Galloway’s 1991 conviction is a controlled substance offense is not evident from the judgment or the elements of the offense. Therefore, the district court was required to l ook to the indictment or guilty plea in order to characterize the offense. Ther e was no written plea agreement presented and the district court refused to look at the 1991 indictment because Ga lloway was convicted of a crime other than the one charged in the indictment. We need not address whether this decision was sound. Under the Supreme Court’s discussion in Shepard , a district court may also l ook to the plea colloquy in order to characterize a defendant’s prior conviction as a predicate offense under the career offender guideline.
A review of the 1991 plea colloquy reveals that this offense was a controlled substance offense. During the plea colloquy, Galloway was asked, “Okay. Now, they searched you with possession of Dilaudid with intent to sell?”, towhich Galloway responded, “Yes, Sir.” J.A. at 89. Galloway’s counsel also stipulated to the fact th at Galloway was in possession of forty-three tablets, which tested positive for Dilaudid, when he was arrested. Based on Galloway’s plea colloquy, the character of the 1991 conviction is apparent a nd the prior conviction qualifies as a controlled substance offense. Galloway thus has two prior controlled substance convictions and the sentencing enhancement of § 4B1.1 is applicable.

III.
For the foregoing reasons, we reverse Galloway’s sentence and remand the case for resentencing in accordance with this opinion.