Description: Memphis, Tennessee criminal defense lawyer represented the Defendant charged with being a felon in possession of a firearm.

The United States appeals a 46-month sentence imposed on Charles Eason by the Western District of Tennessee following his guilty plea to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The United States argues the district court erred in finding that Eason was not an armed career criminal, given his five prior
Tennessee convictions for promotion of methamphetamine manufacture. See Tenn. Code Ann.
§ 39-17-433. Since these convictions are serious drug offenses under the Armed Career
Criminal Act (ACCA), we REVERSE Eason’s sentence and REMAND for resentencing.

FACTUAL AND PROCEDURAL HISTORY

In 2017, Eason pleaded guilty to being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g). The default statutory range for such a violation is zero to 10 years’
imprisonment. 18 U.S.C. § 924(a)(2). However, under the ACCA, a defendant convicted under
§ 922(g) who has three prior convictions for violent felonies or serious drug offenses is subject to
an enhanced mandatory minimum sentence of 180 months. 18 U.S.C. § 924(e)(1).

The Pre-Sentence Report recommended that Eason be sentenced under the ACCA due to
his five prior Tennessee felony convictions for promotion of methamphetamine manufacture.
Eason objected. He pointed out that an ACCA “serious drug offense” is defined, in relevant part,
as “an offense under State law, involving manufacturing, distributing, or possessing with intent
to manufacture or distribute, a controlled substance . . . .” 18 U.S.C. § 924(e)(2)(A)(ii). Eason
argued that, under the Tennessee statute, his prior offenses could have been based on no more
than the purchase of an ingredient that can be used to produce methamphetamine with reckless
disregard of its intended use. This, he argued, was too attenuated from the manufacture of
methamphetamine to involve it for ACCA purposes.

The government countered, and continues to argue, that the Tennessee statute “involves”
the manufacture of methamphetamine because it targets those who gather the necessary
ingredients. And under the ACCA’s definition of serious drug offense, there is no explicit mens
rea requirement for the underlying state crimes—rather, the ACCA requires only that the
predicate offenses involve certain activities related to controlled substances.

The district court agreed with Eason. It explained that, while “involving” is an expansive
term under the ACCA, purchasing an ingredient with reckless disregard of its intended use does
not relate or connect closely enough with manufacturing so as to involve it. Without the ACCA
enhancement, Eason was sentenced to 46 months’ imprisonment, the top of the guideline range.

STANDARD OF REVIEW

We review a district court’s interpretation and application of the ACCA de novo. United
States v. Stafford, 721 F.3d 380, 395-96 (6th Cir. 2013). This includes review of whether a prior
conviction constitutes a “serious drug offense.” United States v. Goldston, 906 F.3d 390, 393
(6th Cir. 2018).

DISCUSSION

To determine whether a prior conviction meets this definition, courts use “a formal
categorical approach, looking only to the statutory definitions of the prior offenses, and not to the
particular facts underlying those convictions.” Taylor v. United States, 495 U.S. 575, 600
(1990). When a state statute includes multiple, alternative elements, not all of which meet the
ACCA’s definition for a predicate offense, a modified categorical approach may be employed.
See Descamps v. United States, 570 U.S. 254, 257 (2013). The modified approach allows a court
to consult a limited class of documents,1
“to determine which alternative formed the basis of the
defendant’s prior conviction,” and then compare the elements of the conviction to the elements
of the generic predicate crime, id., or, in this case, the definition supplied by Congress. If the
elements of the conviction are the same or narrower, it constitutes a predicate offense under the
ACCA. Id.

I. Eason’s Prior Convictions

The first inquiry, then, is to determine the elements of Eason’s prior convictions. Mathis
v. United States, 136 S. Ct. 2243, 2256 (2016). Under Tennessee law, a person promotes
methamphetamine manufacture when he:

(1) Sells, purchases, acquires, or delivers any chemical, drug, ingredient, or
apparatus that can be used to produce methamphetamine, knowing that it will be
used to produce methamphetamine, or with reckless disregard of its intended use;
(2) Purchases or possesses more than nine (9) grams of an immediate
methamphetamine precursor with the intent to manufacture methamphetamine or deliver the precursor to another person whom they know intends to manufacture
methamphetamine, or with reckless disregard of the person’s intent; or
(3) Permits a person to use any structure or real property that the defendant
owns or has control of, knowing that the person intends to use the structure to
manufacture methamphetamine, or with reckless disregard of the person’s intent.
Tenn. Code Ann. § 39-17-433(a).

Both parties agree that this statute is divisible since it lists multiple alternative elements
under which Eason could have been convicted. It is also undisputed that the indictments show
each of Eason’s convictions was under section (a)(1) of the statute. It is less clear whether
section (a)(1) is further divisible—whether the alternative phrases listed throughout the section
are means to satisfying one element, or are individual elements themselves. See Mathis, 136 S.
Ct. at 2256-57. The importance of the distinction being: if they are elements, the court should
proceed with the modified categorical approach to determine which element was included in
Eason’s convictions, but if they are means, “the court has no call to decide which of the statutory
alternatives was at issue in the earlier prosecution.” Id. at 2256.

Tennessee law provides no answer. When state law fails to provide a clear answer
regarding elements or means, “federal judges have another place to look: the record of a prior
conviction itself.” Id.; see also Descamps, 570 U.S. at 264 n.2. Here, the indictments charged
Eason with the “purchase [of] an ingredient that could be used to produce methamphetamine,
knowing that the ingredient would be used to produce methamphetamine, or with reckless
disregard of its intended use.”

Since the indictment lists “purchase” and “ingredient” to the exclusion of their alternative
terms, these are elements of Eason’s crimes. Mathis, 136 S. Ct. at 2257; see also Descamps, 570
U.S. at 272 (“A prosecutor charging a violation of a divisible statute must generally select the
relevant element from its list of alternatives”). However, the indictment retains both mens rea
alternatives from the original statute, indicating that knowledge or reckless disregard are both
possible means for satisfying a single mens rea element, but neither of which is an element by
itself (i.e. it must be proven to a jury beyond a reasonable doubt for conviction). Mathis, 136 S.
Ct. at 2257. The categorical approach does not allow the court to venture into the facts of
Eason’s conduct to determine the means by which he violated the mens rea element of
Tennessee’s statute. Id. at 2256.

Thus, Eason’s prior offenses, for ACCA purposes, could have been based on no more
than the purchase of an ingredient that could be used to produce methamphetamine with reckless
disregard of its intended use. The court must determine whether such a crime involves the
manufacture of methamphetamine under the ACCA. See Moncrieffe v. Holder, 569 U.S. 184,
190-91 (2013) (“Because we examine what the state conviction necessarily involved, not the
facts underlying the case, we must presume that the conviction rested upon [nothing] more than
th[e] least of the acts criminalized, and then determine whether even those acts are encompassed
by the generic federal offense.” (internal quotations omitted)) (alteration in original).
II. Whether Eason’s Prior Convictions Are ACCA Predicate Offenses

A “serious drug offense” under the ACCA includes:

[A]n offense under State law, involving manufacturing, distributing, or possessing
with intent to manufacture or distribute, a controlled substance . . . 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).2

Apart from “possessing with intent to manufacture or distribute,” this definition does not
require the underlying state conviction to contain a specific mens rea. See, e.g., United States v.
Smith, 775 F.3d 1262, 1267 (11th Cir. 2014) (“No element of mens rea with respect to the illicit
nature of the controlled substance is expressed or implied by [§ 924(e)(2)(A)(ii)]”). Congress
did not attach a mens rea requirement to manufacturing. And it is clear that Congress could have
done so, since it did for convictions involving possession of a controlled substance. Thus, to the

2The ACCA’s definition of serious drug offense incorporates the definitions of 21 U.S.C. § 802. See, e.g.,
Goldston, 906 F.3d at 394. Under that statute, the term “manufacture” means:
[T]he production, preparation, propagation, compounding, or processing of a drug or other
substance, either directly or indirectly or by extraction from substances of natural origin, or
independently by means of chemical synthesis or by a combination of extraction and chemical
synthesis, and includes any packaging or repackaging of such substance or labeling or relabeling
of its container . . . .
21 U.S.C. § 802(15).

extent the district court’s opinion rests on a belief that the ACCA requires proof that Eason
intended to engage in a serious drug offense, this is error.3

But the level of culpability required for Eason’s state convictions remains relevant. As
already detailed, the categorical approach requires courts to compare the elements of the state
crime to the definition of a serious drug offense under the ACCA. Mens rea is an element of
each of Eason’s convictions. The district court was correct, then, to point out that the degree of
culpability required of the statute—indeed, the type of conduct it prohibits—may affect whether
a conviction under it involves manufacturing of a controlled substance. 18 U.S.C.
§ 924(e)(2)(A)(ii).

a. The legal landscape of “involving”

There is little Sixth Circuit caselaw addressing the “involving” element of the serious
drug offense definition.4

Most other circuits have interpreted it 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. ” United States v. Bynum, 669 F.3d 880, 886 (8th Cir. 2012)
(internal quotation omitted); 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

3Eason points to the legislative history, and a few other circuit courts, for the proposition that Congress was
targeting those who “intentionally enter the highly dangerous drug distribution world” when enacting the ACCA.
United States v. Bynum, 669 F.3d 880, 886 (8th Cir. 2012) (quoting United States v. Vickers, 540 F.3d 356, 365-66
(5th Cir. 2008)). While Congress certainly meant for the ACCA to apply to those defendants, § 924(e)(2)(A)(ii) is
unambiguous, e.g., United States v. Winbush, 407 F.3d 703, 708 (5th Cir. 2005), and the words used do not establish
a minimum mens rea requirement in order for the underlying state convictions to relate to manufacturing. Given the
straightforward statutory command, there is no reason to resort to the legislative history on this issue. United States
v. Gonzales, 520 U.S. 1, 6 (1997).

See United States v. Thomas, 13 F. App’x 233, 242 (6th Cir. Apr. 3, 2001) (holding, without discussion,
that “an attempt narcotics conviction ‘involves’ narcotics”); see also United States v. White, 53 F.3d 332 (Table),
1995 WL 244069 at *2 (6th Cir. Apr. 26, 1995) (accepting government’s concession that convictions for “illegal
processing of drug documents” were not serious drug offenses, where defendant did not intend to distribute the pills
for which he possessed forged prescriptions).

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.]”).

Eason responds that the connection cannot be too tangential or remote, and that the plain
meaning of “involve” is “to relate closely” or to “connect closely.” Gibbs, 656 F.3d at 184
(emphasis added) (citing United States v. McKenney, 450 F.3d 39, 43 (1st Cir. 2006)). In
McKenney, the First Circuit, after agreeing that “involving” was to be read “expansively” and
encompassed offenses that were “related to or connected with” the enumerated conduct of
§ 924(e)(2)(A)(ii), gave a word of caution:

[W]hile the term “involving” under 18 U.S.C. § 924(e)(2)(A)(ii) is not to be too
narrowly read, it also is not to be too broadly read. Not 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 the
ACCA. The relationship must not be too remote or tangential. We need not
decide today where the line is . . . .
McKenney, 450 F.3d at 45.

No circuit appears to have considered whether purchasing an ingredient that could be
used to manufacture methamphetamine with a reckless disregard of its intended use involves the
manufacture of a controlled substance. While the government cites two district court opinions
ruling that methamphetamine promotion statutes qualify as serious drug offenses, they are
inapposite, since the prior convictions in those cases specifically involved the intent to
manufacture, rather than a reckless disregard for the ingredient’s use. See Jones v. United States,
No. 1:11-cr-10004, 2018 WL 1618335, at *4 (W.D. Ark. Apr. 4, 2018); United States v. Sage,
No. 1:13-cr-00100, 2017 WL 4544596, at *2-3 (D. Or. Oct. 11, 2017). The district court opinion
relied on by Eason also sheds little light on the issue before us. The court in Ernst v. United
States, 293 F. Supp. 3d 1242 (D. Or. 2017), determined that an Oregon statute making it
“unlawful for any person to manufacture or deliver a controlled substance,” was not a serious
drug offense. But the court held so because the willingness of Oregon state courts to include
solicitation as part of the statute’s prohibition on delivery, even in the absence of possession,
intent to possess, payment, or specific terms regarding the controlled substance. Id. at 1248-49.
Neither solicitation, nor the meaning of delivery, is involved in the Tennessee statute.

b. Our case

Here, the conduct prohibited by Tennessee Code § 39-17-433(a)(1) relates to and is
connected with the manufacture of methamphetamine. Methamphetamine can be made largely
from products purchased over the counter. See, e.g., United States v. Roberge, 565 F.3d 1005,
1007-08 (6th Cir. 2009). Thus, the purchase of those ingredients is often an essential first step to
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.” Tenn. Code Ann. § 39-17-433(a)(1).

That Eason could have done the latter does not attenuate the conduct from manufacturing.
While true that, as culpability diminishes, so too does the connection to manufacturing,
Tennessee’s recklessness standard does not create a gap too far. To be convicted under § 39-17-
433(a)(1), a purchaser of ingredients would have to be “aware of but consciously disregard[] a
substantial and unjustifiable risk” of the ingredient’s intended use. Tenn. Code. § 39-11-302(c).
Purchasing ingredients needed to make methamphetamine, and consciously disregarding an
unjustifiable risk regarding how those products will be used, “indirectly,” if not “directly,”
connects with methamphetamine’s “production, preparation, propagation, compounding or
processing.” 21 U.S.C. § 802(15) (defining manufacturing). Indeed, recklessly purchasing
prerequisite ingredients, many of which are otherwise restricted, takes them out of the store and
into the public, increasing the potential supply from which the drug can be made.5

Thus,
Eason’s convictions involve the manufacture of methamphetamine under the ACCA.

5Eason argues his convictions support the finding that someone other than himself had the intent to
manufacture methamphetamine, and that he recklessly disregarded that person’s intent. This argument in no way
attenuates the elements of conviction from manufacturing. That a person would have been aware of, but consciously
disregarded a substantial and unjustifiable risk that the ingredients they purchased were intended to be manufactured
into methamphetamine by another, only seems to put the convictions closer to manufacture.

And this reading is consistent with Tennessee’s enforcement of the statute. That the
Tennessee legislature meant to target a first step in methamphetamine manufacture is clear, since
the statute was enacted as part of the Meth-Free Tennessee Act of 2005, the preamble of which
explicitly recognized “that the clandestine manufacture of the illegal drug methamphetamine is a
clear and present danger to the health and well being of the State of Tennessee.” Meth-Free
Tennessee Act of 2005, 2005 Tenn. Pub. Acts, c.18. Eason references no state court cases in his
briefing, much less identifies convictions under § 39-17-433(a)(1) that would not involve the
manufacture of methamphetamine for purposes of the ACCA.

Finally, the rule of lenity does not prohibit application of the ACCA in this case. It is
true that, “where there is ambiguity in a criminal statute, doubts are resolved in favor of the
defendant.” United States v. Bass, 404 U.S. 336, 348 (1971). But the rule of lenity is
inapplicable unless ambiguity is left after the court has “seize[d] every thing from which aid can
be derived.” Chapman v. United States, 500 U.S. 453, 463 (1991) (citations omitted). Here, the
categorical approach provides the process, and the ACCA’s definitions provide the substance by
which the court can readily determine if Eason’s convictions are predicate offenses—there is no
“grievous ambiguity or uncertainty in the language and structure of the Act” required to invoke
the rule of lenity. Id. (internal quotation marks omitted).

Outcome: Since Eason’s convictions are serious drug offenses under the Armed Career Criminal Act, we REVERSE his sentence and REMAND for resentencing consistent with this opinion.

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