After Havis, an Offer to Sell is not a “Controlled Substance Offense”

Does the Texas offense of possession with intent to distribute qualify as a “controlled substance offense” under the guidelines? In United States v. Serrano, the Sixth Circuit held that it does not.

Serrano was convicted under a statute that prohibited manufacturing, delivering, or possessing with intent to deliver a controlled substance.  Tex. Health & Safety Code § 481.112 (2004) (amended 2009).  Under Texas case law, these are all means of committing the same crime, so the statute is not divisible.  Texas law also includes offering to sell a controlled substance in its definition of “deliver.” 

Serrano argued that his prior conviction was not categorically a “controlled substance offense” because that term does not include offers to sell.

The Sixth Circuit had previously disagreed.  In United States v. Evans, 699 F.3d 858, 868 (6th Cir. 2012), the Court had held that an offer to sell was an attempt to transfer a controlled substance.  And because the commentary to the guidelines states that “controlled substance offenses” includes attempt crimes, the Court held that offers to sell qualify.

However, Evans predated the Court’s decision in United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc).  In Havis, the Court rejected the commentary’s expanded definition of “controlled substance offense.”  Because the text’s definition of “controlled substance offense” never mentions attempt crimes, the commentary’s inclusion of attempt crimes is an impermissible addition to the guidelines.  So statutes that include attempted deliveries of controlled substances are too broad to categorically qualify as “controlled substance offenses.”

Accordingly, after Havis, a statute that criminalizes offers to sell is not a controlled substance offense.  Rather, because an offer to sell is an attempt, it cannot form the basis for a controlled substance offense under the guidelines.  Therefore, the district court committed plain error when it determined that Serrano’s conviction for possession with intent to distribute under Texas law qualified as a controlled substance offense.