United States v. Donnell Davenport ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0664n.0m
No. 19-2442
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 19, 2020
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
DONNELL DEOMEARA DAVENPORT, ) MICHIGAN
)
Defendant-Appellant. )
)
BEFORE: DAUGHTREY, NALBANDIAN, and MURPHY, Circuit Judges.
PER CURIAM. Donnell Deomeara Davenport appeals his 115-month sentence for
possessing a stolen firearm. We AFFIRM.
After leading police on a high-speed chase, Davenport threw a handgun out of his vehicle.
Federal law prohibits Davenport—a felon—from possessing a firearm. Law enforcement
recovered the weapon, which a gun shop had reported as stolen.
After the chase, a federal grand jury charged Davenport with (1) possession of a firearm
by a felon, and (2) possession of a stolen firearm. See 18 U.S.C. §§ 922(g)(1), (j). Davenport
pleaded guilty to Count 2 pursuant to a written plea agreement. Davenport’s presentence report
set a base offense level of 20 based on his prior felony conviction for a controlled substance
offense. See U.S.S.G. § 2K2.1(a)(4)(A). In his objections to the presentence report, Davenport
challenged the base offense level, arguing that his 2009 Michigan conviction for
delivering/manufacturing less than 50 grams of cocaine, in violation of Michigan Compiled Laws
No. 19-2442, United States v. Davenport
§ 333.7401, did not constitute a “controlled substance offense” within the meaning of the
Sentencing Guidelines. The district court overruled Davenport’s objection and sentenced him to
115 months of imprisonment.
On appeal, Davenport argues that the district court erred in categorizing his prior
conviction under Michigan Compiled Laws § 333.7401 as a controlled substance offense.
Davenport relies on United States v. Havis, 927 F.3d 382, 387 (6th Cir. 2019) (en banc) (per
curiam), which held that the definition of “controlled substance offense” in U.S.S.G. § 4B1.2(b)
does not include attempt crimes. Davenport contends that because Michigan law defines
“delivery” as “the actual, constructive, or attempted transfer from 1 person to another of a
controlled substance,” Mich. Comp. Laws § 333.7105(1), delivery of a controlled substance under
Michigan law includes attempted delivery and therefore does not qualify as a controlled substance
offense under the Sentencing Guidelines.
After Davenport filed his appellate brief, we issued a published decision foreclosing his
argument. In United States v. Thomas, 969 F.3d 583, 585 (6th Cir. 2020) (per curiam), we pointed
out that the Sentencing Guidelines define “controlled substance offense” as including distribution
of a controlled substance. See U.S.S.G. § 4B1.2(B). And “distribution” under federal law means
“delivery,” which federal law defines the same way as Michigan law: “the actual, constructive, or
attempted transfer of a controlled substance.” Compare 21 U.S.C. § 802(8), (11) with Mich. Comp.
Laws § 333.7105(1). We thus concluded that “[t]here is no meaningful difference between the
federal offense of distribution and the Michigan offense of delivery.” Thomas, 969 F.3d at 585.
So the Michigan offense constitutes a controlled substance offense under the Sentencing
Guidelines. Id. Distinguishing Havis, we stated that the definition of “delivery” under both federal
and Michigan law “does not include ‘attempted delivery’” and instead “includes only ‘attempted
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No. 19-2442, United States v. Davenport
transfer,’” which “qualifies as a completed delivery.” Id. (citing United States v. Garth, 965 F.3d
493, 497 (6th Cir. 2020)).
The district court correctly determined that Davenport’s prior Michigan conviction for
delivering/manufacturing less than 50 grams of cocaine constituted a controlled substance offense
under the Sentencing Guidelines. Accordingly, we AFFIRM Davenport’s sentence.
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