United States v. Donald Myers ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0112p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 18-5099
v. │
│
│
DONALD CORY MYERS, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Tennessee at Winchester.
No. 4:17-cr-00005-1—Travis R. McDonough, District Judge.
Argued: January 31, 2019
Decided and Filed: June 3, 2019
Before: GRIFFIN, WHITE, and BUSH, Circuit Judges.
_________________
COUNSEL
ARGUED: Gianna Maio, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE,
INC., Chattanooga, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES
ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Gianna Maio,
FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga,
Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE,
Knoxville, Tennessee, for Appellee.
No. 18-5099 United States v. Myers Page 2
_________________
OPINION
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HELENE N. WHITE, Circuit Judge.
Defendant-Appellant Donald Myers challenges his 180-month sentence imposed under
the Armed Career Criminal Act (ACCA) based on two prior Tennessee convictions for initiation
of a process intended to result in the manufacture of methamphetamine. Myers argues that the
Tennessee initiation offense is not a serious drug offense under the ACCA. We AFFIRM.
I. Background
A. Factual Overview
On August 24, 2016, Myers entered Kelly Sullivan’s home without permission, pulled
out a gun, pointed it at Sullivan, and demanded drugs. Sullivan told Myers that she had drugs in
her car and the two went outside. Once outside, Sullivan saw her neighbor Kristy Baker and
attempted to whisper to her to call the police. Myers then grabbed Sullivan and told Baker, “if
you value this woman’s life, you will get me drugs.” (R. 28, PID 91.) Baker ran from the scene
and called the police, who soon arrived and arrested Myers.
Myers pleaded guilty to being a felon in possession of a firearm, a violation of 18 U.S.C.
§ 922(g)(1). The Pre-Sentence Investigation Report (PSR) recommended that Myers qualify as
an armed career criminal under the ACCA, 18 U.S.C. § 924(e), based on his prior Tennessee
convictions for aggravated assault and two separate initiations of a process intended to result in
the manufacture of methamphetamine.1 The PSR recommended the mandatory minimum
sentence of fifteen years’ imprisonment under the ACCA.
At sentencing, Myers objected to his classification as an armed career criminal, arguing
that initiating a process intended to result in the manufacture of methamphetamine is not a
1On July 28, 2006, the Coffee County Circuit Court sentenced Myers to six years’ imprisonment for the
aggravated assault. On May 11, 2011, the Coffee County Circuit Court sentenced Myers to eight years and six
months’ imprisonment for both initiation charges. Myers committed the first of these on November 25, 2010; Myers
committed the second offense on January 26, 2011. Both offenses carried a potential maximum sentence of ten
years’ imprisonment or more.
No. 18-5099 United States v. Myers Page 3
“serious drug” offense under the ACCA. The district court disagreed, concluding that the
convictions qualify as ACCA predicates because initiating a process to manufacture
methamphetamine involves manufacturing the drug. After finding that Myers is an armed career
criminal, the district court sentenced him to the statutory mandatory minimum term of 180
months imprisonment and 3 years’ supervised release, and also imposed a special assessment of
$100. This timely appeal followed.
II. Discussion
A. Standard of Review and Applicable Law
The court reviews de novo whether a prior conviction is a “serious drug offense” under
the ACCA. United States v. Stafford, 721 F.3d 380, 395-96 (6th Cir. 2013).
To determine whether a particular offense qualifies as a serious drug offense, the court
applies a “categorical approach,” which looks “only to the statutory definitions—i.e., the
elements—of a defendant’s prior offenses, and not to the particular facts underlying those
convictions.” Descamps v. United States, 570 U.S. 254, 261 (2013) (internal quotation marks
and citation omitted). Further, the inquiry turns on the elements of the offense at issue, and not
the label state law places on it. Taylor v. United States, 495 U.S. 575, 588-89 (1990) (“Congress
intended that the enhancement provision [of the ACCA] be triggered by crimes having certain
specified elements, not by crimes that happened to be labeled ‘robbery’ or ‘burglary’ by the laws
of the State of conviction.”).
At issue is whether the district court properly applied the ACCA sentence enhancement,
18 U.S.C. § 924(e), which provides:
(1) In the case of a person who violates section 922(g) of this title and has three
previous convictions by any court referred to in section 922(g)(1) of this title for a
violent felony or a serious drug offense, or both, committed on occasions different
from one another, such person shall be fined under this title and imprisoned not
less than fifteen years, and, notwithstanding any other provision of law, the court
shall not suspend the sentence of, or grant a probationary sentence to, such person
with respect to the conviction under section 922(g).
No. 18-5099 United States v. Myers Page 4
And § 924(e)(2)(A) defines “serious drug offense” to mean:
(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the
Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter
705 of title 46, for which a maximum term of imprisonment of ten years or more
is prescribed by law; or
(ii) an offense under State law, involving manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled substance (as
defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for
which a maximum term of imprisonment of ten years or more is prescribed by
law.
The state offense at issue, the initiation of methamphetamine manufacture, is defined by
Tennessee Code Annotated § 39-17-435:
(a) It is an offense for a person to knowingly initiate a process intended to result
in the manufacture of any amount of methamphetamine.
(b) It shall not be a defense to a violation of this section that the chemical reaction
is not complete, that no methamphetamine was actually created, or that the
process would not actually create methamphetamine if completed.
(c) For purposes of this section, “initiates” means to begin the extraction of an
immediate methamphetamine precursor from a commercial product, to begin the
active modification of a commercial product for use in methamphetamine
creation, or to heat or combine any substance or substances that can be used in
methamphetamine creation.
These are the only means by which a defendant can be convicted of initiation of
methamphetamine manufacture process under Tennessee law.
B. Analysis
A state conviction qualifies as “a serious drug offense” if it is an offense “involving
manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled
substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for
which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C.
§ 924(e)(2)(A)(ii). There is no dispute that initiation of the methamphetamine manufacture
process carries a maximum term of ten years or more, and that methamphetamine is a listed
controlled substance. Tenn. Code Ann. § 39-17-435(f); § 40-35-111(b)(2) (prescribing a
maximum “authorized term[] of imprisonment” of up to “thirty (30) years” for Class B felonies).
No. 18-5099 United States v. Myers Page 5
The sole issue on appeal is whether the initiation offense involves manufacturing
methamphetamine.
1. United States v. Eason
This court recently held in United States v. Eason, 919 F.3d 385 (6th Cir. 2019), that the
related Tennessee offense of promoting methamphetamine manufacture, Tenn. Code Ann. § 39-
17-433, is a serious drug offense under the ACCA. After conducting the divisibility analysis
required by Descamps and Mathis v. United States, 136 S. Ct. 2243 (2016), the Eason court
concluded that the least of the acts criminalized by the statute is the purchase of an ingredient
that could be used to produce methamphetamine with reckless disregard of its intended use. 919
F.3d at 389. The court then analyzed whether such conduct “involves” the manufacture of
methamphetamine so as to qualify as a serious drug offense under the ACCA.
The panel noted that most other circuits have interpreted involving “as an ‘expansive
term,’ which goes beyond the enumerated offenses and ‘requires only that the conviction be
related to or connected with drug manufacture, distribution, or possession, as opposed to
including those acts as an element of the offense.’” Id. at 390-91 (quoting United States v.
Bynum, 669 F.3d 880, 886 (8th Cir. 2012) (internal quotation omitted)); (citing United States v.
Gibbs, 656 F.3d 180, 185 (3d Cir. 2011) (“In adopting this position, we conform with all courts
of appeals that have addressed the scope of the definition of a serious drug offense.”); United
States v. Vickers, 540 F.3d 356, 365 (5th Cir. 2008) (“[I]nvolving means related to or connected
with.” (citation and internal quotation marks omitted)); United States v. Alexander, 331 F.3d 116,
131 (D.C. Cir. 2003) (citing “related to or connected with” language); United States v. King, 325
F.3d 110, 113-114 (2d Cir. 2003) (“[I]nvolving has expansive connotations ... encompassing ...
offenses that are related to or connected with [distributing, manufacturing, or possessing.]”)).
But, the Eason court also observed that the term “involving” has its limits, and that while the
term “is not to be too narrowly read, it also is not to be too broadly read.” Id. (quoting United
States v. McKenney, 450 F.3d 39, 45 (1st Cir. 2006) (explaining that “[n]ot all offenses bearing
any sort of relationship with drug manufacturing, distribution, or possession with intent to
manufacture or distribute will qualify as predicate offenses under ACCA. The relationship must
not be too remote or tangential.”)).
No. 18-5099 United States v. Myers Page 6
In addressing the “involving” test, the court explained:
Here, the conduct prohibited [] relates to and is connected with the manufacture of
methamphetamine. Methamphetamine can be made largely from products
purchased over the counter. . . . Thus, the purchase of those ingredients is often an
essential first step in the drug’s manufacture. And to ensure that the statute
criminalizes only those purchases that relate to manufacture—for our purposes,
that they are not too tangential from manufacture—the Tennessee legislature
requires more: a person must purchase the ingredient with knowledge that it will
be used to produce methamphetamine, or with a “reckless disregard of [the
ingredient’s] intended use.”
Id. at 391-92.
The Eason panel determined that both the minimal mens rea required (reckless disregard
of the ingredient’s intended use) and the action required (purchasing the prerequisite ingredient)
are sufficiently connected to the “methamphetamine’s ‘production, preparation, propagation,
compounding or processing’” to make the promotion offense an offense that “involves” the
manufacture of methamphetamine under the ACCA. Id. at 392 (quoting 21 U.S.C. § 802(15)
(defining manufacturing)).
2. Whether the Initiation of Methamphetamine Manufacture Process Is a
Serious Drug Offense Under the ACCA
Although Myers’s prior convictions were of the initiation statute, rather than the
promoting statute, Eason dictates the outcome here. Myers argues that a person could be
convicted under the Tennessee initiation statute without possessing, distributing, or “actually
starting the process of manufacturing” any controlled substance under 18 U.S.C.
§ 924(e)(2)(A)(ii), (Appellant Br. at 13) and that a person can use thousands of legal,
commonplace ingredients to make methamphetamine, including automotive and household
chemicals, like lighter fluid and lithium strips, many of which are not defined as controlled
substances under federal law. (Id. at 16-19) (citing State v. Dunn, 2016 WL 1446113 (Tenn.
Crim. App., April 12, 2016) for the proposition that a defendant has been convicted of initiation
for possessing an opened cold compression pack, among other household materials).) Although
Myers acknowledges that courts have interpreted the phrase “involving” broadly, he maintains
that the term as written “modifies the word ‘controlled substance,’” and since he never possessed
No. 18-5099 United States v. Myers Page 7
or manufactured a controlled substance, his offense is not subject to the ACCA enhancement.
(Appellant Br. at 14-15 (emphasis in original).) But these objections apply to the promotion
offense as well, and were rejected by Eason, which held that simply purchasing an ingredient
that could be used to produce methamphetamine with reckless disregard for its intended use
constitutes an offense involving the manufacture of methamphetamine under the ACCA.
The initiation statute here requires that a person “knowingly initiate a process intended to
. . . manufacture . . . methamphetamine,” which is accomplished by “begin[ning] the extraction
of an immediate methamphetamine precursor from a commercial product,” “begin[ning] the
active modification of a commercial product for use in methamphetamine creation,” or
“heat[ing] or combin[ing] any substance or substances that can be used in methamphetamine
creation.” Tenn. Code Ann. § 39-17-435. If purchasing a methamphetamine ingredient with
reckless disregard for its intended use involves the manufacture of methamphetamine, then
knowingly initiating a process intended to manufacture methamphetamine surely involves its
manufacture as well.
Myers is correct that a defendant could be convicted under the initiation statute although
“no chemical reaction would likely result, no controlled substances would be involved, and
certainly no methamphetamine would be produced.” (Appellant Br. at 17). However, as Eason
made clear, the Tennessee legislature’s intent to criminalize steps in the methamphetamine
manufacturing process, including actions short of the actual manufacture of the drug, does not
remove the offenses from the ambit of the ACCA, provided they still involve the manufacture of
the drug. Further, Tennessee cases have held that the initiation offense must be committed
knowingly. In State v. Banks, No. M2008–01823–CCA–R3–CD, 2010 WL 2943115, at *7
(Tenn. Crim. App. July 26, 2010), the court explained:
Because the specific steps which comprise the initiation offense must be
undertaken ‘knowingly,’ a person who inadvertently heats or mixes substances
which are commonly used in the manufacture of methamphetamine, or purchases
an over-the-counter drug containing a prohibited substance would not be guilty of
a crime under the terms of the statute unless the state proved that the conduct was
undertaken with the intent to initiate a process that would lead to the production
of methamphetamine.
No. 18-5099 United States v. Myers Page 8
By pleading guilty to two initiation offenses, Myers acknowledged that he knowingly
initiated a process intended to result in the manufacture of methamphetamine. Because Myers
had a violent felony conviction and two serious drug offense convictions, the district court did
not err in sentencing him as an armed career criminal under the ACCA.
III. Conclusion
For the reasons above, we AFFIRM the district court’s application of the ACCA’s
sentencing enhancement.