United States v. Bryan Goins ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0626n.06
No. 19-6319
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Nov 04, 2020
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
BRYAN KEITH GOINS, ) TENNESSEE
)
Defendant-Appellant. )
BEFORE: ROGERS, NALBANDIAN, and MURPHY, Circuit Judges.
PER CURIAM. Bryan Keith Goins appeals his 50-month sentence for being a felon in
possession of a firearm. We AFFIRM.
Goins pled guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1).
Before sentencing, Goins’s presentence report set a base offense level of 24 based on two prior
convictions for controlled substance offenses. The first was a Georgia conviction for possession
with intent to distribute methamphetamine. See Ga. Code Ann. § 16-13-30(b). And the second
was a Tennessee conviction for possession with intent to sell or deliver methamphetamine. See
Tenn. Code Ann. § 39-17-417(a)(4). After a reduction for accepting responsibility, Goins’s total
offense level was 21. Combined with his criminal history category of V, this led to a Guidelines
range of 70 to 87 months of imprisonment.
Goins objected to the presentence report. He argued that his two prior drug offenses do
not qualify as controlled substance offenses under the Sentencing Guidelines. So, according to
Goins, his base offense level should be 14, his total offense level 12, and his Guidelines range 27
No. 19-6319, United States v. Goins
to 33 months of imprisonment. But the district court overruled Goins’s objections at sentencing
and adopted the presentence report. After considering the factors under 18 U.S.C. § 3553(a), the
district court varied downward from the Guidelines and sentenced Goins to 50 months of
imprisonment.
Goins appealed. He continues to argue that the district court was wrong to count his prior
Georgia and Tennessee convictions as controlled substance offenses under the Sentencing
Guidelines. And for support he relies on our recent decision in United States v. Havis, 927 F.3d
382, 387 (6th Cir. 2019) (en banc). Havis held that the definition of “controlled substance offense”
in U.S.S.G. § 4B1.2(b) does not include attempt crimes. Id. at 386. Goins correctly notes that the
Georgia and Tennessee criminal codes proscribe “deliver[ing]” controlled substances. Ga. Code
Ann. § 16-13-30(b); Tenn. Code Ann. § 39-17-417(a). And he’s right that delivery includes
“attempted transfer.” Ga. Code Ann. § 16-13-21(7); Tenn. Code Ann. § 39-17-402(6). But he is
wrong that possession with intent to distribute or deliver a controlled substance under either
Georgia or Tennessee law encompasses attempt crimes and cannot qualify as a controlled
substance offense under the Sentencing Guidelines.
Indeed, as the government points out, we recently rejected Goins’s argument. In United
States v. Garth, 965 F.3d 493, 498 (6th Cir. 2020), we held that possession with intent to deliver a
controlled substance under Tennessee law is categorically a controlled substance offense under the
Sentencing Guidelines. And we noted that attempted transfer is not an attempt crime but is instead
completed delivery. Id. at 497. So “possession with intent to deliver”—or, using the statute’s
definition of “deliver,” possession with intent to attempt to transfer—“is a completed crime, not
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No. 19-6319, United States v. Goins
an attempted one that Havis puts beyond the guidelines’ reach.” Id. This reasoning applies with
equal force to the Georgia offense, which uses nearly identical language.1
The district court correctly determined that Goins’s prior Georgia and Tennessee
convictions for possession with intent to distribute or deliver a controlled substance qualify as
controlled substance offenses under the Sentencing Guidelines. Thus, we AFFIRM Goins’s
sentence.
1
Goins initially appeared to argue, albeit inartfully, that the Georgia statute is not
divisible. Presumably, this matters because when employing the categorical approach, we look to
the “least of the acts criminalized by the elements of [the] statute” that led to the conviction. Havis,
927 F.3d at 384 (citation omitted). And the Georgia statute criminalizes distribution and delivery,
which, according to Goins, encompass attempt crimes. See Ga. Code Ann. §§ 16-13-30, 16-13-21
(7), (11). Goins recognizes, however, that under the modified categorical approach, he was
convicted of “possession with intent to distribute,” and he later admits he likely conceded that
§ 16-13-30(b) is divisible into multiple crimes. We therefore express no opinion on whether the
Georgia statute is divisible and confine our analysis to whether “possession with intent to
distribute” is a completed crime.
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