In a recently published opinion, the Sixth Circuit held that delivery of a controlled substance under Tenn. Code. § 39-17-417(a) is a “serious drug offense” under the Armed Career Criminal Act. The Court rejected the defendant’s argument that the term “deliver” under Tennessee law is broader than term “distribute” under the ACCA.
Under the ACCA, the term “distribute” means to deliver, other than by administering or dispensing, a controlled substance. Likewise, under Tennessee law, “distribute” means to deliver, other than by administering or dispensing, a controlled substance. However, Tennessee law prohibits “delivery” while the ACCA includes convictions for “distribution.”
Accordingly, Mr. Goldston argued that delivery is broader than distribution, because the definition for distribution excludes delivery by administering or dispensing. In other words, delivery necessarily includes delivery by administration or dispensation, while distribution excludes those two types of delivery.
Although the Sixth Circuit acknowledged that “at first glance there might appear to be merit” to this argument, the Court ultimately rejected it. The Court held that Tennessee did not actually criminalize either administering or dispensing controlled substances, because the definitions of these terms necessarily included only legal deliveries. Thus, delivery includes only one category of prohibited conduct, which is distribution.
Opinion available here.