RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0182p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
â
UNITED STATES OF AMERICA,
â
Plaintiff-Appellee, â
> No. 20-5521
â
v. â
â
TIMMY L. FIELDS, â
Defendant-Appellant. â
â
Appeal from the United States District Court for the Eastern District of Kentucky at London.
No. 6:19-cr-00029-1âRobert E. Wier, District Judge.
Argued: June 23, 2021
Decided and Filed: August 10, 2022
Before: ROGERS, WHITE, and MURPHY, Circuit Judges.
_________________
COUNSEL
ARGUED: Michael J. Stengel, MICHAEL J. STENGEL, PC, Memphis, Tennessee, for
Appellant. Andrew C. Noll, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: Michael J. Stengel, MICHAEL J. STENGEL, PC, Memphis,
Tennessee, for Appellant. Andrew C. Noll, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., Charles P. Wisdom, Jr., Jenna E. Reed, R. Nicholas Rabold, UNITED
STATES ATTORNEYâS OFFICE, Lexington, Kentucky, for Appellee.
WHITE, J., delivered the opinion of the court in which MURPHY, J., joined, and
ROGERS, J., joined in part. MURPHY, J. (pp. 35â46), delivered a separate concurring opinion
in which WHITE, J., joined except as to Part II.A. ROGERS, J. (pp. 47â49), delivered a separate
opinion concurring in part and dissenting in part.
No. 20-5521 United States v. Fields Page 2
_________________
OPINION
_________________
HELENE N. WHITE, Circuit Judge. Defendant Timmy Fields appeals his twenty-five-year mandatory-minimum sentence enhancement imposed for his having committed two prior
âserious drug felon[ies].â Fields challenges the procedure used to impose his enhancement and
argues as well that neither prior conviction was for a âserious drug felony.â Most of Fieldâs
challenges lack merit, but we agree that one of the predicate prior convictions was not for a
âserious drug felony.â Accordingly, we VACATE Fieldsâs sentence and REMAND for
resentencing.
I. BACKGROUND
In January 2020, a jury convicted Defendant Timmy Fields of possessing 500 grams or
more of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The
district court imposed a statutory sentence enhancement under
21 U.S.C. § 841(b)(1)(A)(viii),
finding that Fields had convictions for two previous âserious drug felon[ies]â in Kentuckyâone
for possessing a methamphetamine âprecursorâ with intent to manufacture, the other for
trafficking in methamphetamine. Fields raises several challenges to the procedure used to
impose the enhancement and the characterization of his prior offenses as âserious drug felonies.â
A. Relevant Statutory and Legal Background
Section 841(b)(1)(A) provides for a twenty-five-year-minimum sentence enhancement if
a defendant commits certain violations of 21 U.S.C. § 841(a) âafter 2 or more prior convictions
for a serious drug felony . . . have become final[.]â Prior to the First Step Act, this enhancement
provided for a mandatory life sentence after two prior final convictions for a âfelony drug
offense,â which included certain drug-related state or federal offenses punishable by more than a
year of imprisonment.
21 U.S.C. § 802(44); First Step Act of 2018,
Pub. L. No. 115-391,
§ 401(a)(2)(A)(ii),
132 Stat. 5194, 5220. The First Step Act lowered this mandatory minimum to
twenty-five years and replaced âfelony drug offenseâ with a new term, âserious drug felony.â
First Step Act § 401(a)(1), (a)(2)(A)(ii). Relevant here, a âserious drug felonyâ is (1) a âserious
No. 20-5521 United States v. Fields Page 3
drug offenseâ under
18 U.S.C. § 924(e)(2)(A), for which the defendant (2) served over a year in
prison and (3) was released within fifteen years of the commencement of the instant offense.
21 U.S.C. § 802(57).1
A âserious drug offense,â as relevant here, means a state-law offense âinvolving
manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled
substance (as defined in [21 U.S.C. § 802]), for which a maximum term of imprisonment of ten
years or more is prescribed by law.â
18 U.S.C. § 924(e)(2)(A)(ii). So, in this case, prosecutors
had to show two prior final convictions for âserious drug offensesâ and prove that for each,
Fields served over a year in prison and was released within 15 years of the commencement of the
instant offense.
Another statutory provision, 21 U.S.C. § 851, governs the procedure for imposing
conviction-based statutory sentence enhancements under § 841. Section 851(a) requires the
government to file an âinformationâ (often referred to as the ⧠851 noticeâ) informing the
defendant of its intent to seek an enhancement based on prior convictions, âstating in writing the
previous convictions to be relied upon.â
21 U.S.C. § 851(a)(1). Section 851(b) provides that the
courtâafter conviction but before pronouncing a sentenceâmust ask the defendant if he affirms
or denies that he was previously convicted as alleged in the § 851 notice. Id. § 851(b). The
court must also âinform [the defendant] that any challenge to a prior conviction which is not
made before sentence is imposed may not thereafter be raised to attack the sentence.â Id.
Section 851(c) provides that if the defendant âdenies any allegationâ in the § 851 notice
or claims that any conviction is invalid, the defendant âshall file a written response[.]â Id.
§ 851(c)(1). Then, â[t]he court shall hold a hearing to determine any issues raised by the
response which would except the person from increased punishment.â Id. This âhearing shall be
before the court without a jury[.]â Id. â[E]ither party may introduce evidence,â and aside from
an exception for claims that a prior conviction was obtained in violation of the Constitution, the
1A âserious drug felonyâ can also be a âviolent felonyâ as described in 18 U.S.C. § 924(e)(2)(B), but that
definition is not relevant to this case. See
21 U.S.C. § 802(57) (defining âserious drug felonyâ as âan offense
described in section 924(e)(2) of Title 18 for whichâ the defendant served over a year in prison and was released
within fifteen years of present offense);
18 U.S.C. § 924(e)(2) (providing definitions for âserious drug offenseâ and
âviolent felonyâ).
No. 20-5521 United States v. Fields Page 4
government âshall have the burden of proof beyond a reasonable doubt on any issue of fact. At
the request of either party, the court shall enter findings of fact and conclusions of law.â
Id.
§ 851(c)(1)-(2).
The Sixth Amendment requires that juries determine any facts (except the fact of a
conviction) that increase a statutory maximum or mandatory-minimum punishment. Alleyne
v. United States, 570 U.S. 99, 103, 111 n.1 (2013); Apprendi v. New Jersey,
530 U.S. 466, 490
(2000). Fields argues Alleyne requires that the First Step Actâs incarceration factsââthe
offender served a term of imprisonment of more than 12 months [for the prior offense]â and âthe
offenderâs release from any term of imprisonment was within 15 years of the commencement of
the instant offense,â § 802(57)âmust go to a jury under Alleyne but that § 851 requires a judge
to decide them, creating an unsolvable problem.
B. Factual Background
In April 2019, Kentucky police pulled Fields over and discovered 985 grams of
methamphetamine in his vehicle. A few months later, a federal grand jury indicted Fields with
one count of possession of 500 grams or more of methamphetamine with intent to distribute, in
violation of 21 U.S.C § 841(a)(1). The indictment also alleged that Fields had two prior âfinal
conviction[s] for . . . serious drug felon[ies]â for which he served over a year in prison and was
released within fifteen years of the instant offense. R. 1 PID 1-2. The first was for âTrafficking
in a Controlled Substance in the First Degree,â in violation of Ky. Rev. Stat. § 218A.1412 (the
Trafficking Offense). Id. PID 1. The second was for âUnlawful Possession of a
Methamphetamine Precursor and Persistent Felony Offender,â in violation of Ky. Rev. Stat.
§§ 218A.1437 & 532.080 (the Meth-Precursor Offense). Id. PID 1-2.
Before trial, the government filed a § 851 notice, stating its intent to seek a sentence
enhancement based on these two prior convictions. The government also filed a pretrial
motionâwhich Fields did not oppose at the timeâto bifurcate the trial into two phases. In the
first phase, the government would seek to prove the substantive § 841 drug offense. If Fields
were found guilty, the trial would move to a second phase, where the government would seek to
No. 20-5521 United States v. Fields Page 5
prove that Fields had previously been convicted of two serious drug felonies. The court granted
the unopposed motion.
1. The Trial
The final pretrial conference took place on January 14, 2020, the day before trial. It
largely focused on what prior-conviction facts, if any, should go to the jury if the second phase
was reached. The district court and government took the position that the Sixth Amendment
required the incarceration-related facts (length of incarceration and recency of release) to be
decided by the jury. But counsel for Fields argued that ânone of it is a jury question,â raising the
same argument noted above: that under Supreme Court precedent, the additional incarceration-related facts had to be found by a jury, but that § 851 required the court to find them. R. 111 PID
794. Thus, counsel argued, if Fields were convicted, he should â[j]ust be subject to the penalty
without any enhancement for prior convictions.â Id. PID 797.
Trial began the next day. The government put on all its guilt-phase proofs on day one.
At the end of the first day, the parties conferred with the court to discuss the § 851 issue further.
The court said that if a second phase was necessary, it would likely ask the jury to find whether
Fields was convicted of each prior offense and determine, for each, whether he served over a
year in prison and was released within fifteen years of his current offense. Counsel for Fields
repeated his objection, to which the court responded that the Sixth Amendment, not § 851,
determines what questions go to the jury.2 The court added that its approach may leave Fields
2Mr. Hoskins: Your Honor, I think that as the law stands now, that the only statutory way to
address these points is for the Court to make the determination on the prior convictions. And the
arguments that I made earlier, I think there is a problem with a federal contradiction between the
First Step Act and 851 as written. . . .
The Court: You gave me a thoughtful argument, and I appreciate the argument. But what defines
what goes to a jury is the Sixth Amendment, not a statute. And if the enhancing facts are within
the ambit of the Sixth Amendment, that tells me it has to go to the jury. I donât need a statute to
tell me that. The constitution is the primary authority, not the statute. . . . I understand your
argument about 851, but I donât think that defines what goes to the jury. I think the Court has to
define the elements of the crime. The elements of the crime go to the jury under the Sixth
Amendment. . . . [T]o the extent there is a Sixth Amendment issue, it is easily cured by letting the
jury decide. Thatâs what I intend to do.
R. 107 PID 525-28.
No. 20-5521 United States v. Fields Page 6
with a statutory argument but would likely prevent him from raising a subsequent Sixth
Amendment challenge on appeal:
The Court: Well, you know, I understand strategically your argument. I do want
to make it clear that Iâm extending to the defendant kind of the option of having
what I think is the most robust Sixth Amendment protection he can have, and that
is for the jury to decide all of it. Down the road, if heâs convicted and the jury
finds what it finds, if heâs got an argument to make, it is going to be that the
statutory authority, or clash, as you pointed out, somehow deprives the Court of
the power to honor the Sixth Amendment in the way that Iâm proposing. It is not
going to be there was a violation of the Sixth Amendment by the Court making a
finding that the jury could make, because Iâm giving him the chance to have it all
decided by the jury. Just to make that clear.
Mr. Hoskins: We recognize that, Your Honor.
R. 107 PID 557-58.
On the second day of trial, the jury deliberated and returned a guilty verdict on the
substantive § 841 offense. During deliberations, the court again recognized that Fields âha[s] an
overall objectionâ to the second-phase jury instructions. R. 108 PID 564. Fieldsâs counsel noted
that other than the general objection regarding the appropriate factfinder, âFields is not going to
contest that those two Laurel Circuit Court convictions are him.â Id. Fields, his lawyer, and
government counsel then submitted a stipulation that Fields was convicted of the Meth-Precursor
Offense on December 27, 2006 and was convicted of the Trafficking Offense on January 24,
2013. The district court then engaged in the mandated § 851(b) colloquy with Fields, asking him
whether he affirmed or denied that he was convicted of these two previous offenses. Fields
affirmed that he was.
A brief second phase then began, with the government presenting proof that for both
prior convictions, Fields served more than a year in prison and was released within fifteen years
from the date of his current offense. Before the jury deliberated, at the close of evidence,
Fieldsâs lawyer made an oral motion for judgment of acquittal, arguing that neither prior offense
met the legal definition of âserious drug offense.â The court denied the motion but noted that
Fields had preserved the issue and could develop his arguments prior to sentencing. In a special
verdict form, the jury found both factual predicates were satisfied for each prior conviction.
No. 20-5521 United States v. Fields Page 7
2. Sentencing
After trial had concluded and before sentencing, Fields filed an âObjection to § 851
Noticeâ and an objection to his pre-sentence report, both focusing exclusively on whether his
prior offenses were âserious drug offenses,â and neither raising any factual disputes regarding
the length or recency of his incarceration for the two prior convictions. Regarding the Meth-Precursor Offense, he argued that Shular v. United States, 140 S. Ct. 779 (2020), required the
court to ask whether the offense ânecessarily entail[ed]â any of the conduct described in
§ 924(e)(2)(A)(ii) and contended that it did not. He also argued that the Trafficking Offense was
overly broad because it could encompass trafficking in certain substances that were excluded
from federal controlled-substance schedules, including inhalers with levmetamfetamine.
During argument, Fieldsâs counsel emphasized that it was possible to violate the meth-precursor statute before ever beginning the manufacturing process and that the offense did not
necessarily entail the predicate conduct. The government responded that the statuteâs
requirement that the defendant possess a methamphetamine ingredient with intent to manufacture
means that it necessarily entails manufacturing. The district court expressed some skepticism,
see R. 109 PID 653 (â[C]an you call something that involves intent to use a chemical as a
precursor to manufacturing part of manufacturing? Is that logical?â), and posed a hypothetical to
test the theory:
The Court: So if somebody is in a drugstore and shoplifts a pack of Sudafed with
the intent to take it to a cook, the second that shoplifting occurs, you would
consider that manufacturing?
[AUSA] Mr. Rabold: Not necessarily. I mean, thatâs possession of a precursor,
but it requires that there is the intent to use it as a precursor of methamphetamine.
And thatâs just - -
The Court: Thatâs what I said.
Mr. Rabold: Yes.
The Court: So in that context, that person is guilty of an offense involving
manufacturing?
Mr. Rabold: I would say so, just based on the plain reading of KRS 218A.1437.
That if they possessed that precursor with the intent of using it as a precursor to
manufacturing methamphetamine, then that person would then be guilty of that
offense.
No. 20-5521 United States v. Fields Page 8
Id. PID 653-54. The court ultimately sided with the government, reasoning that our decision in
United States v. Eason, 919 F.3d 385 (6th Cir. 2019), which found a similar Tennessee
conviction to be a serious drug offense, âdecides the issue.â
Id. PID 665. The court noted that
Shular may arguably âshrink[]â Easonâs analysis, as the latter relied on a â[p]retty broad
readingâ of § 924(e)(2)(A)(ii) asking only if the prior crime ârelated to and connected with
manufacturing,â but concluded that âEason is a published Sixth Circuit case that I feel bound
by.â Id. PID 665-66.
Applying the statutory enhancement, the district court sentenced Fields to 300 months in
prison (the bottom of the mandatory range), noting that â[w]ithout that mandatory minimum,â it
would have imposed a lower sentence. Id. PID 710. The district court also issued two written
orders explaining its reasoning on the § 851 issue and âserious drug offenseâ issues, respectively.
Fields timely appealed.
II. STANDARD OF REVIEW
Fields raises several legal challenges to his sentencing enhancement, some for the first
time on appeal. We review the ones raised below de novo. See United States v. Mateen, 764
F.3d 627, 630 (6th Cir. 2014) (en banc) (per curiam); United States v. Green,
654 F.3d 637, 649
(6th Cir. 2011); Eason,
919 F.3d at 388. But we apply plain-error review to arguments first
raised on appeal, United States v. Cavazos,
950 F.3d 329, 334 (6th Cir. 2020), requiring (1) an
error; that (2) was âplainâ (i.e., obvious or clear); (3) affected the defendantâs substantial rights;
and (4) affected the fairness, integrity, or public reputation of the judicial proceedings.
Id. We
first address Fieldsâs challenges to the district courtâs § 851 procedure. We then address whether
his prior convictions were âserious drug offenses.â
III. CHALLENGES TO § 851 PROCEDURE
Fields raises four challenges to the procedure used to impose his enhancement. He first
argues that § 851(b) facially violates the Fifth Amendment by compelling defendants to testify
regarding previous convictions; second, that § 851(c) facially violates the Sixth Amendment by
requiring judges to determine factsâthe length and recency of incarcerationâthat the
Constitution requires to be decided by a jury; third, that the court violated § 851 by sending those
No. 20-5521 United States v. Fields Page 9
facts to the jury here; and finally, that the court violated the Sixth Amendment by not requiring
the jury to decide whether his prior convictions were âfinal.â We take these arguments in order.
A. The Fifth Amendment Challenge
Fields first argues that § 851(b) violates a defendantâs Fifth Amendment right against
self-incrimination by requiring that courts ask defendants to âaffirm or denyâ prior convictions
and warn defendants that they may forfeit challenges they do not raise prior to imposition of
sentence. Fields Br. at 17-18. He did not raise this argument below, so plain-error review
applies.
The Fifth Amendment provides that no person âshall be compelled in any criminal case
to be a witness against himself[.]â U.S. CONST. amend. V. But this privilege âis not a selfexecuting mechanism; it can be affirmatively waived, or lost by not asserting it in a timely
fashion.â Maness v. Meyers, 419 U.S. 449, 466 (1975). Generally, answers âare not compelled
within the meaning of the Fifth Amendment unless the witness is required to answer over his
valid claim of the privilege.â Minnesota v. Murphy,
465 U.S. 420, 427 (1984). The Fifth
Amendment âspeaks of compulsion. It does not preclude a witness from testifying voluntarily in
matters which may incriminate him. If, therefore, he desires the protection of the privilege, he
must claim it or he will not be considered to have been âcompelledâ within the meaning of the
Amendment.â
Id. (quoting United States v. Monia,
317 U.S. 424, 427 (1943)).
Fields never asserted the privilege. Despite being informed of the right not to testify,
Fields did not invoke that right when asked if he affirmed or denied his prior convictions.
Indeed, prior to being asked that question, he voluntarily stipulated that he had been convicted of
those offenses. Fields thus did not suffer a Fifth Amendment violation, and his challenge fails.
See Garner v. United States, 424 U.S. 648, 653 (1976) (â[A] witness who reveal[s] information
instead of claiming the privilege los[es] the benefit of the privilege.â); see also United States v.
Jones,
447 F. Appâx 319, 326 (3d Cir. 2011) (rejecting âJonesâs facial challenge to
21 U.S.C.
§ 851(b) under the Fifth Amendmentâ because âas applied,â there was no constitutional
violation).
No. 20-5521 United States v. Fields Page 10
B. The Sixth Amendment Challenge
Fields next argues that § 851(c) is facially unconstitutional under the Sixth Amendment
because it requires the judge to decide factsâthe length and recency of incarcerationâthat
should be decided by the jury.
In general, the Sixth Amendment requires the jury to decide any fact that increases the
statutory maximum or mandatory-minimum sentence available for a crime. Alleyne, 570 U.S. at
103; Apprendi,
530 U.S. at 490. But there is an exception to this rule for the âfact of
conviction.â This exception stems from Almendarez-Torres v. United States,
523 U.S. 224, 226-
27 (1998). The Court has described Almendarez-Torres as an âexceptional departure fromâ and
ânarrow exception to the general rule.â Apprendi,
530 U.S. at 487, 490; see also Alleyne,
570
U.S. at 111 n.1 (âIn Almendarez-Torres[], we recognized a narrow exception to this general rule
for the fact of a prior conviction.â); United States v. Haymond,
139 S. Ct. 2369, 2377 n.3 (2019)
(plurality) (stating that Almendarez-Torres provides a ânarrow exception[] to Apprendiâs general
ruleâ).
Here, the district court heldâand the parties seem to assumeâthat the Sixth Amendment
would require the jury to decide whether, for each prior conviction, Fields was incarcerated for
over a year and released within fifteen years of the instant offense. The basis for the district
courtâs view is intuitive. Alleyne and Apprendi described the Almendarez-Torres exception as
ânarrowâ and applying only to the fact of conviction, and the First Step Actâs incarceration facts
extend beyond the fact of conviction. Further, in justifying the Almendarez-Torres exception,
the Court has explained that prior convictions are âconstitutional[ly] distinct[]â because âunlike
virtually any other consideration used to enlarge the possible penalty for an offense, . . . a prior
conviction must itself have been established through procedures satisfying the fair notice,
reasonable doubt, and jury trial guarantees.â Jones v. United States, 526 U.S. 227, 249 (1999).
That rationale does not apply to post-conviction facts regarding time served or recency of
release. These are new facts never previously found in a proceeding with built-in constitutional
protections.
No. 20-5521 United States v. Fields Page 11
But the Court has also sometimes used a broader justification for the Almendarez-Torres
exception that cuts the other way. The Court has justified the exception on the basis that,
traditionally, facts involving recidivism have been within the province of judicial fact-finding
and that these facts are usually unconnected with the substantive offense at issue. See
Almendarez-Torres, 523 U.S. at 243 (noting that âthe sentencing factor at issue hereâ
recidivismâis a traditional, if not the most traditional, basis for a sentencing courtâs increasing
an offenderâs sentenceâ); Jones,
526 U.S. at 235, 248-49 (making similar point); Apprendi,
530
U.S. at 488 (pointing out that Almendarez-Torres emphasized âthe fact that recidivism âdoes not
relate to the commission of the offenseââ (quoting Almendarez-Torres,
523 U.S. at 244)). If
Almendarez-Torres creates an exception more broadly for ârecidivism,â there is a case for saying
that the incarceration-related facts are a good fit for the exception. They arguably relate only to
recidivism, and they are completely unconnected to the current offense.
Two district court decisions directly addressing the Sixth Amendment implications of the
new âserious drug felonyâ incarceration facts have reached opposite conclusions. The difference
in their reasoning tracks the separate rationales described above. The district court in our case
held that the jury must decide these facts, emphasizing the Courtâs clear statements that the
Almendarez-Torres exception is ânarrowâ and limited solely to the âfact of conviction.â See
United States v. Fields, 435 F. Supp. 3d 761, 764 (E.D. Ky. 2020) (stating that these facts
amount to âempirical issues, which rise or fall based on events occurring only after the
conviction,â and thus âby definition are beyond the âfactâ of conviction (the narrow Almendarez-Torres harbor)â); see also United States v. Beal, No. 18-00070,
2021 WL 4524159, at *3 n.6
(D. Haw. Oct. 4, 2021) (stating âthat the more âconservative approachâ would be to put the
question of the serious drug felony determination to the jury before its dismissalâ). But a North
Carolina district court recently held the opposite, relying more heavily on the ârecidivismâ
justification. See United States v. Lee,
2021 WL 640028, at *3-7 (E.D.N.C. Feb. 18, 2021) (âThe
exception for the fact of a prior conviction is based in the recognition that recidivism does not
relate to the commission of the offense.â (internal quotation marks omitted)); see also United
States v. Fitch, No. 19-CR-30,
2022 WL 1165000, at *2 (N.D. Ind. Apr. 19, 2022) (concluding
that, although the First Step Act added new facts to consider, those facts are still facts of a prior
conviction).
No. 20-5521 United States v. Fields Page 12
Though both Fields and Lee give the issue thoughtful consideration, the district courtâs
view in our case appears more persuasive. Although one can find strands of reasoning
supporting a broader reading of Almendarez-Torres, the Courtâs repeated descriptions of
Almendarez-Torres as ânarrowâ and limited to the âfact of convictionâ cut against this approach.
But ultimately, we need not (and do not) definitively decide this constitutional issue because
even assuming that the incarceration-related facts must be decided by a jury, there was no
constitutional violation here.
The basis of Fieldsâs constitutional argument is that § 851(c) requires the judge to decide
factual questions (length and recency of incarceration) that must go to the jury under Alleyne.
But those facts were actually submitted to the jury here. Fields therefore suffered no personal
constitutional violation. Instead, his argument is based on a counterfactual hypothetical: he
argues that under the correct reading of § 851, the judge should have decided these facts himself,
and that had he done so, he would have violated the Sixth Amendment. That, however, did not
happen here. Although Fields has a potential statutory argumentâthat the court did not follow
§ 851âthe district courtâs application of § 851 did not produce a Sixth Amendment violation.
Fieldsâs facial challenge also fails. Facial challenges only succeed if the challenger can
show âthat no set of circumstances exists under which the [challenged statutory provision] would
be valid.â United States v. Salerno, 481 U.S. 739, 745 (1987). Fields cannot do so. Section 851
applies to all conviction-related enhancements imposed on those convicted of an offense under
21 U.S.C. §§ 841-65, see
id. § 851(a)(1), and several of those enhancements do not turn on the
type of incarceration-related facts that, according to Fields, implicate the Sixth Amendment.
See, e.g., id. § 841(b)(1)(C) (enhancement for âfelony drug offense,â which
21 U.S.C. § 802(44)
defines without reference to incarceration-related facts); see also
id. § 842(c)(2)(B); id.
§ 843(d)(1). Fields has not shown that § 851 would be unconstitutional as applied to these types
of enhancements.3 In short, Fieldsâs facial challenge lacks merit. So does any personal âas-
3Even in the âserious drug felonyâ context, § 851 would not be unconstitutional in all its applications.
Section 851(c)(1) provides that a court âshall hold a hearing to determine any issues raised byâ a defendant.
21 U.S.C. § 851(c)(1) (emphasis added). If a defendant concedes the length and recency of incarceration but raises
the purely legal challenge that his prior convictions were not for âserious drug offenses,â there would be no Sixth
Amendment issue, even under Fieldsâs view.
No. 20-5521 United States v. Fields Page 13
appliedâ challenge (to the extent he brings one), because the jury decided the facts Fields said it
needed to decide.
C. The § 851 Statutory Challenge
The closer question is whether the district court failed to follow § 851. âThe
requirements delineated in § 851 are mandatory, and a district court cannot enhance a
defendantâs sentence based on a prior conviction unlessâ they are satisfied. United States
v. King, 127 F.3d 483, 487 (6th Cir. 1997); see also Carachuri-Rosendo v. Holder,
560 U.S. 563,
569 n.6 (2010) (âAlthough § 851âs procedural safeguards are not constitutionally compelled,
they are nevertheless a mandatory feature of the Controlled Substances Act.â (citation omitted));
United States v. LaBonte,
520 U.S. 751, 754 n.1 (1997) (â[I]mposition of an enhanced penalty is
not automatic. . . . If the Government does not file [a] notice [under § 851(a)(1)] . . . the lower
sentencing range will be applied even though the defendant may otherwise be eligible for the
increased penalty.â).
The question is whether § 851 required the district court to decide the incarceration-related facts hereâi.e., whether it precluded the district court from sending those factual
questions to the jury in the post-guilt phase of the bifurcated trial proceeding. Before addressing
the partiesâ arguments on that question, we briefly review § 851âs statutory scheme.
1.
As relevant here, § 851(a)(1) provides that â[n]o person who stands convicted of an
offense under this part [21 U.S.C. §§ 841-65] shall be sentenced to increased punishment by
reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty,â
the government âfiles an information with the courtâ and serves a copy on the defendant âstating
in writing the previous convictions to be relied upon.â
21 U.S.C. § 851(a)(1). Section 851(b)
provides that when such an information is filed, âthe court shall after conviction but before
pronouncement of sentenceâ ask the defendant âwhether he affirms or denies that he has been
previously convicted as alleged in the information, and shall inform him that any challenge to a
prior conviction which is not made before sentence is imposed may not thereafter be raised to
attack the sentence.â
Id. § 851(b).
No. 20-5521 United States v. Fields Page 14
Section 851(c) provides that if the defendant âdenies any allegation of the information of
prior conviction, or claims that any conviction alleged is invalid, he shall file a written response
to the informationâ and serve the government with a copy. Id. § 851(c)(1). Then, â[t]he court
shall hold a hearing to determine any issues raised by the response which would except the
person from increased punishment.â Id. âThe hearing shall be before the court without a jury
and either party may introduce evidence.â Id. Aside from one exception (when the defendant
asserts that the prior conviction was obtained in violation of the Constitution), the government
âshall have the burden of proof beyond a reasonable doubt on any issue of fact.â Id. § 851(c)(1)-
(2). The âfailure of the [government] to include in the information . . . any facts in addition to
the convictions to be relied upon shall not constitute grounds for invalidating the notice[.]â Id.
§ 851(c)(1). âAt the request of either party, the court shall enter findings of fact and conclusions
of law.â Id.
Section 851(d)(1) provides that the court âshall proceed to impose sentenceâ upon the
defendant if the defendant fails to respond to the § 851 notice âor if the court determines, after
hearing, that the person is subject to increased punishment by reason of prior convictions[.]â Id.
§ 851(d)(1). Section 851(d)(2) provides that the court mustâif requested by the governmentâ
stay imposition of the sentence to allow for appeal if the court âdetermines that the person has
not been convicted as alleged in the information, that a conviction alleged in the information is
invalid, or that the person is otherwise not subject to an increased sentence as a matter of law[.]â
Id. § 851(d)(2). Finally, § 851(e) prevents defendants from âchalleng[ing] the validity of any
prior conviction alleged under this section which occurred more than five years before the date
of the information alleging such prior conviction.â Id. § 851(e).
2.
The parties first dispute whether § 851 applies to the incarceration-related facts at all.
The government argues that § 851âs text is limited to questions involving the validity of previous
convictions and âdoes not encompass the resolution of any term-of-imprisonment-related
questions at all.â Govât Br. at 18. In support of this argument, it cites portions of § 851(a)(1),
No. 20-5521 United States v. Fields Page 15
(b), and (d)(2) that refer to challenges implicating the validity of convictions, as well as § 851âs
title (â[p]roceedings to establish prior convictions.â).4 We are not persuaded.
The government picks out portions of § 851 that mention the validity of convictions but
omits parts of the statute using broader language, in particular § 851(c)(1), the main sub-section
Fields relies on. Section 851(c)(1) provides that â[i]f the person denies any allegation of the
information of prior conviction,â he must file a written response. 21 U.S.C. § 851(c)(1)
(emphasis added). âAny allegationâ is broad. The subsection adds that the court âshall hold a
hearing to determine any issues raised by the response which would except the person from
increased punishment.â
Id. (emphasis added). Had Congress sought to limit § 851 to challenges
involving the validity or existence of convictions, it could have said so here. â[A]ny issuesâ is
far broader. See, e.g., id. (stating that the government will have the burden of proof on âany
issue of factâ in the § 851(c) hearing (emphasis added)). Section 851(c)(1) also expressly
contemplates that the hearing may encompass facts beyond the mere fact of conviction. It states
that the governmentâs âfailureâ to âinclude . . . any facts in addition to the convictions to be
relied uponâ will not invalidate the § 851 notice. Id. (emphasis added). If the § 851 hearing is
focused only on the existence of a conviction, why reference âfacts in addition to the
convictionâ? See, e.g., Lee,
2021 WL 640028 at *5 (citing these portions of § 851 and
concluding that its scope âencompasses a variety of subsidiary findings necessary to define or
qualify [a] prior convictionâ).
Section 851(c)(1) refers to a âhearing to determine any issues raised by the [defendantâs]
response which would except the [defendant] from increased punishment.â If a defendant has
not served over a year in prison or was released more than fifteen years before the present
4See Govât Br. at 18-19 (âSection 851âs procedure does not encompass the resolution of any term-ofimprisonment-related questions at all. Section 851 sets forth a process for the district court to determine the âfacts
regarding prior convictionsââincluding whether the defendant âhas been previously convicted as alleged in the
information,â whether an alleged conviction âis invalid,â or whether a conviction would not subject a defendant âto
an increased sentence as a matter of law.â 21 U.S.C. § 851(a)(1), (b), (d)(2). As the district court suggested,
questions about the characteristics of the sentence a defendant served as a result of a prior conviction are not
encompassed by Section 851.â);
id. at 19 (adding that â[a]ny doubt about the scope of the statutory section is
resolved by [its] heading, which refers to â[p]roceedings to establish prior convictionsââand not to âestablishâ the
period of imprisonment the defendant served or other consequences that resulted from the convictionâ).
No. 20-5521 United States v. Fields Page 16
offense, those facts âexcept [him] from increased punishment.â If raised, they fit within § 851âs
scope.
3.
The parties next dispute whether § 851 prevents a court from doing what the court did
here: i.e., sending the incarceration-related facts to the jury via a bifurcated proceeding at trial.
While we do not agree with the governmentâs precise framing, we ultimately agree that the
answer to this close question is âno.â
The government argues that nothing in § 851 âmandates that the [district] court
independently make factual findings, nor prevents the district court from adopting a juryâs
determinations.â Govât Br. at 20. We have trouble with both assertions. To start, § 851(c)(1)
does require the court, not a jury, to make certain findings. It requires the court to hold a hearing
to determine âany issuesâ raised by a defendantâs written § 851 response, contemplates that this
hearing may involve âfacts in addition to the convictions to be relied upon,â and provides that
the âhearing shall be before the court without a jury and either party may introduce evidence.â
21 U.S.C. § 851(c)(1). It also states that the government âshall have the burden of proof beyond
a reasonable doubt on any issues of factâ in the hearing, and that when requested, âthe court shall
enter findings of fact and conclusions of law.â
Id. (emphasis added). These sentences (in part)
describe an evidentiary hearing. Clearly, if the jury is not present to evaluate evidence in that
hearing, only the court can decide the âissues of factâ raised in it. It follows that when there are
issues left to be resolved in a § 851(c) hearing (i.e., unresolved factual issues raised by the
defendantâs written § 851 notice), the court is the entity that decides those issues.
There are two problems with the governmentâs argument that nothing in § 851 bars the
court from adopting the juryâs factual findings, as if they were optional recommendations. First,
the court did not purport to âadoptâ the juryâs findings here. See R. 72 PID 293 (âThese post-conviction factual criteria . . . are for the jury alone to evaluate.â). Second, if the Sixth
Amendment requires a jury to decide the incarceration-related facts at issue hereâas the
government argued below and seems to assume on appealâthere could well be a constitutional
problem with concluding that a court could treat a juryâs findings as ârecommendationsâ it could
No. 20-5521 United States v. Fields Page 17
choose to adopt or reject. Under that view, the judge, not jury, would make the final factual
determination. That would âreduce[] the juryâs role âto the relative importance of low-level
gatekeeping.ââ United States v. Booker, 543 U.S. 220, 230 (2005) (quoting Jones,
526 U.S. at
244).
Yet a slightly different framing makes the argument more plausible. Nothing in § 851
expressly forbids a court from sending factual questions to a jury during a bifurcated trial merely
because they may come up later in a § 851(c) hearing. The statute is silent on what a court can
and cannot do during the trial phase of a criminal proceeding. Fields notes that § 851(c)(1) refers
to a hearing âbefore the court without a jury,â and argues that this language expressly precludes
the juryâs involvement, adding that in Booker, the Court read 18 U.S.C. § 3553(a)(1)âs use of the
phrase âthe courtâ to âmean âthe judge without the jury,â not âthe judge working together with
the jury.ââ Booker,
543 U.S. at 249. We agree, of course, that the phrase âbefore the court
without a juryâ means what it says and precludes a juryâs involvement. But the question is how
far this language extendsâi.e., at what point the juryâs involvement is precluded. Section 851
clearly requires a court, not a jury, to decide disputed issues when the § 851 hearing happens.
But a § 851 hearing necessarily cannot occur until a defendant files a written § 851 response.
See
21 U.S.C. § 851(c)(1). Fields had not filed a § 851 response when phase two of the trial
proceeding occurred; therefore, phase two of the trial could not have been a § 851(c)(1) hearing.5
5We also note another problem with Fieldsâs argument, albeit one that the government has not raised.
Fieldsâs entire argument hinges on the language in § 851(c)(1) describing the § 851 hearing, emphasizing that
§ 851(c)(1)âs exclusion of the jury from this hearing necessarily means that the court must decide the SixthAmendment-implicating facts that he discusses here. But the scope of the § 851(c)(1) hearingâand, by logical
extension, the scope of the purported obligation for the judge (and not the jury) to decide such facts under Fieldsâs
argumentâis itself defined by what issues a defendant raises in his written response to the § 851 notice. If a
defendant does not raise factual objections to the § 851 notice in a written response, there will be no factual issues to
resolve in the § 851 hearing, and thus no obligation, even under Fieldsâs argument, for the judge to decide those
facts. See 21 U.S.C. § 851(c)(1) (describing hearing as applying to resolve âany issues raised by the [defendantâs]
response which would except the [defendant] from increased punishmentâ (emphasis added)); see also United States
v. Espinal,
634 F.3d 655, 664 (2d Cir. 2011) (âWhile § 851(c)(1) requires the government to prove contested facts
relating to the prior felony beyond a reasonable doubt, that burden is triggered only where the defendant . . . submits
a written response raising a factual issue.â).
Fields raised no factual issues in his § 851 response. Indeed, he waited until after trialâand after the jury
had found the incarceration-related conditions to be metâto file any § 851 response at all, and that response
challenged only the legal characterization of his prior convictions as being for âserious drug felonies.â See R. 75
PID 303-05; see also R. 91 PID 353-58 (supplemental brief objecting to PSR, solely raising challenge to this legal
characterization). He had time to do so before trial. The indictment alleged that he had served over a year in prison
and was released within fifteen years of the present offense for each of his alleged prior convictions for âserious
No. 20-5521 United States v. Fields Page 18
And Fields never explains how the statute extends to prohibit the court from sending questions to
the jury before the § 851 hearing, during a bifurcated trial.
Because the text does not clearly prohibit what the district court did here, the most Fields
can hope to show is that § 851 is capable of competing plausible constructions, including his.
But when a âstatute is susceptible of âtwo plausible . . . constructions,â one of which âwould raise
a multitude of constitutional problems, the other should prevail.ââ United States v. Erpenbeck,
682 F.3d 472, 476 (6th Cir. 2012) (quoting Clark v. Martinez,
543 U.S. 371, 380-81 (2005)). To
the extent that is the case here, this canon cuts against Fieldsâs reading, which would create
constitutional problems that a contrary reading would avoid.6
drug felon[ies].â R. 1 PID 1-2. And the government filed a § 851 notice in November 2019, just shy of two months
before the January 15, 2020 trial started. Indeed, Fieldsâs counsel told the government that he âha[d] no objection to
bifurcationâ when the government moved to bifurcate proceedings on January 3, 2020. R. 44 PID 133.
It is difficult to accept Fieldsâs argument that § 851 required the court to refrain from sending facts to the
jury that Fields never challenged in a § 851 written objectionâthe trigger for a § 851 hearing. Cf. United States
v. Hill, 142 F.3d 305, 313 (6th Cir. 1998) (holding that district courtâs failure to engage in § 851(b) colloquy was
harmless because the defendant never filed § 851(c)(1) response challenging his prior convictions: âthere is no
reason for a district court to conduct a hearing on the validity of the prior convictions when a defendant fails to first
meet the requirements of 21 U.S.C. [§] 851(c), which requires that a defendant give advance notice concerning the
basis of his challengeâ); United States v. Denkins,
367 F.3d 537, 549 (6th Cir. 2004) (same); United States
v. Walker,
761 F. Appâx 547, 552-53 (6th Cir. 2019) (same). Although we recognize it would be pointless to raise
such a factual challenge after the incarceration-related facts were found at trial, Fields had two months to do so
before trial.
6There is another problem with Fieldsâs argument. Federal Rule of Criminal Procedure 23(a) states that
â[i]f the defendant is entitled to a jury trial, the trial must be by jury unlessâ the defendant and government waive the
jury trial in writing and the court approves. Fed. R. Crim. P. 23(a). The committee notes make clear that this rule
aims to codify the requirements of the Sixth Amendment. Fed. R. Crim. P. 23(a) advisory committeeâs note 1 to
1944 adoption. Rule 23(a) became effective in 1946, while § 851 was enacted in 1970. See Fed. R. Crim. P.
historical note; Controlled Substances Act, Pub. L. No. 91-513, § 411,
84 Stat. 1242, 1269 (1970). Absent a âclear
and manifestâ intent, we generally disfavor implied repeals of earlier statutes by later ones, Rodriguez v. United
States,
480 U.S. 522, 524 (1987) (internal quotation marks omitted); Beckert v. Our Lady of Angels Apartments,
Inc.,
192 F.3d 601, 606 (6th Cir. 1999), and that principle applies to implied repeals of Federal Rules as well,
Callihan v. Schneider,
178 F.3d 800, 802-03 (6th Cir. 1999); Zedner v. United States,
547 U.S. 489, 507 (2006);
United States v. Borden Co.,
308 U.S. 188, 198 (1939) (âIt is a cardinal principle of construction that repeals by
implication are not favored. When there are two acts upon the same subject, the rule is to give effect to both if
possible. The intention of the legislature to repeal âmust be clear and manifest.ââ (citations and internal quotation
marks omitted)). But the practical import of Fieldsâs argument is that § 851 impliedly repeals Rule 23(a)âs
requirement to have a jury trial on any issues implicating the Sixth Amendment. So, Fieldsâs argument that § 851
forbids or invalidates the procedure employed here creates a constitutional-avoidance and an âimplied-repealâ
problem. When statutes are ambiguous, we avoid reading them to create constitutional problems, and in general, we
avoid readings that treat a subsequent statute as impliedly repealing a prior statute (or Federal Rule). Fieldsâs
reading would do both.
No. 20-5521 United States v. Fields Page 19
âŚ
In sum, we conclude that the district courtâs bifurcated procedure in this case did not
violate § 851. Nothing in the statute explicitly forbids the district court from submitting to the
jury the factual questions it submitted at the point it did so.
D. The âFinality of Convictionâ Argument
Fields makes one last challenge to the district courtâs procedure. He argues that the
district court violated the Sixth Amendment by failing to require the jury to find the âfactâ that
each of his previous state-law convictions was âfinal.â Fields Br. at 22. Fields never requested
that the jury make such a finding and never raised this argument below. We thus review for
plain error.
Fields has not shown that any error was âplain.â He cites no cases adopting his position,
and â[a] lack of binding case law that answers the question presented will . . . preclude our
finding of plain error.â United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015); see also
United States v. Gonzalez,
584 F. Appâx 188, 190 (5th Cir. 2014) (âGonzalez is unable to show a
clear or obvious error on the question whether the finality of the prior conviction is an issue
beyond the fact of a prior conviction.â) (citing Alleyne,
570 U.S. at 116; Almendarez-Torres,
523
U.S. at 239-47)). The government also points out that Fields has not shown that the error
affected his substantial rights, as the plain-error standard requires. Cavazos, 950 F.3d at 334; see
Govât Br. at 28-29 (âFields served his years-long sentence for each conviction and was initially
released on parole for those convictions in 2010 and 2014, respectively. There is no doubt that
his prior convictions long ago became final.â (citation omitted)). Fields fails to contest that point
in his reply brief. In short, Fields fails to show that plain error warrants reversal on this
argument.
IV. THE âSERIOUS DRUG OFFENSEâ CHALLENGES
In his second category of challenges, Fields argues that neither of his prior convictionsâ
both for criminal offenses in Kentuckyâqualifies as a âserious drug offense.â His first
conviction is the Meth-Precursor Offense: a 2006 conviction for violating Kentuckyâs statute
No. 20-5521 United States v. Fields Page 20
prohibiting possession of a methamphetamine precursor with intent to manufacture. The second
is the Trafficking Offense: a 2013 conviction for violating Kentuckyâs drug-trafficking statute.
As relevant here, a âserious drug offenseâ is âan offense under State law, involving
manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled
substance (as defined in [21 U.S.C. § 802]), for which a maximum term of imprisonment of ten
years or more is prescribed by law[.]â
18 U.S.C. § 924(e)(2)(A)(ii).
To assess Fieldsâs challenges, we use the âcategorical approach.â That approach looks
only to the statutory definitions of the prior offenses, not the facts underlying each conviction.
Eason, 919 F.3d at 388. It asks if the underlying state conviction, âby definition, . . . falls within
[the] categoryâ of offenses described by the federal statute. Mellouli v. Lynch,
575 U.S. 798, 805
(2015). We âmust presume that the [previous] conviction rested upon nothing more than the
least of the acts criminalized under the state statute.â
Id. (internal quotation marks omitted). The
inquiry is âhypotheticalâ and asks if âsomeone [could] commit [the] crime of conviction
withoutâ meeting the federal enhancementâs criteria. Pereida v. Wilkinson,
141 S. Ct. 754, 762
(2021). But sometimes we must first ask a factual question: âwhat was [the] crime of
conviction?â
Id. This arises when a state law is âdivisible,â i.e., has âmultiple, stand-alone
offenses, some of whichâ meet the federal criteria and âothers of which do not.â
Id. at 762-63.
In those cases we use a âmodified categorical approach,â âconsult[ing] a limited class of
documents[] to determine which alternative formed the basis of the . . . prior conviction[.]â
Eason,
919 F.3d at 388 (internal quotation marks omitted).7
A. The Meth-Precursor Offense
In 2006, Fields was convicted of a first-time violation of Ky. Rev. Stat. § 218A.1437, the
meth-precursor statute, for âUnlawful Possession of a Methamphetamine Precursorâ and
received an enhancement under Ky. Rev. Stat. § 532.080 for being a âpersistent felony offender
7These documents include âthe statutory definition, charging document, written plea agreement, transcript
of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.â Shepard
v. United States, 544 U.S. 13, 16 (2005). The laws underlying both of Fieldsâs convictions refer to
âmethamphetamineâ or another âcontrolled substance.â Ky. Rev. Stat. §§ 218A.1437, 218A.1412. The district
court found both laws were divisible and, applying the modified categorical approach, looked to the indictments for
both to determine that they involved methamphetamine, not some other controlled substance. Fields does not
challenge that analysis, so we assume the same for purposes of resolving this appeal.
No. 20-5521 United States v. Fields Page 21
in the first degree.â The meth-precursor statute proscribes âknowingly and unlawfullyâ
possessing certain chemicals with intent to use them as a precursor to manufacturing
methamphetamine. Id. § 218A.1437(1). A first-time violation is a âClass Dâ felony, id.
§ 218A.1437(3), which carries a five-year maximum sentence â[u]nless otherwise provided by
law,â id. § 532.060(2)(c)-(d). But a âpersistent felony offender in the first degreeâ who commits
a Class D felony is subject to at least a ten-year maximum sentence. Id. § 532.080(6).
Fields argues that his Meth-Precursor Offense is not a âserious drug offenseâ because it
(1) does not carry a ten-year maximum sentence and (2) does not ânecessarily entailâ the conduct
described in 18 U.S.C. § 924(e)(2)(A)(ii). The first argument is foreclosed by United States
v. Rodriquez,
553 U.S. 377 (2008),8 so we focus on the second one. It relies heavily on Shular
v. United States,
140 S. Ct. 779 (2020). Fields argues that Shular requires us to ask whether the
Meth-Precursor Offense necessarily entails any of the conduct described in § 924(e)(2)(A)(ii),
and that because the Meth-Precursor Offense does not necessarily entail âmanufacturing,â the
only relevant prong of § 924(e)(2)(A)(ii), his enhancement cannot stand. He acknowledges,
however, that in 2019 we held that a similar Tennessee statuteâbarring possession of
methamphetamine ingredients with recklessness as to their potential use in manufacturingâwas
a âserious drug offense.â Eason,
919 F.3d at 390-92. But Eason was a pre-Shular decision, and
Fields argues that because Easonâs testârequiring only that the prior offense be related to or
connected with the conduct listed in § 924(e)(2)(A)(ii)âis far broader than Shularâs, Eason
should not control our decision here.
Because the Meth-Precursor Offense would constitute a âserious drug offenseâ under
Easonâs broader ârelates to or connects withâ test, but may not under Shularâs ânecessarily
entailsâ test, our threshold question is which standard applies.
8Fieldsâs first argument is that the Meth-Precursor Offense is not âpunishable by ten years or more
imprisonmentâ because a first-time violation of § 218A.1437 aloneâwithout considering the persistent felony
offender enhancementâwould only permit five yearsâ imprisonment. But Rodriquez held that courts must consider
all applicable state recidivism enhancements affecting the defendantâs maximum sentence. 553 U.S. at 383-84. In
light of Rodriquez, Fieldsâs first argument is unavailing.
No. 20-5521 United States v. Fields Page 22
1.
Prior to Shular, most circuits, including ours in Eason, interpreted the word âinvolvingâ
in § 924(e)(2)(A)(ii) to require only that a prior state offense ârelate to or connect withâ the
offenses listed in § 924(e)(2)(A)(ii). See Eason, 919 F.3d at 390-91 (collecting cases). But a
few circuits read âinvolvingâ more narrowly. See United States v. Franklin,
904 F.3d 793, 800-
02 & n.9 (9th Cir. 2018) (rejecting the ârelates to or connects withâ test as overly broad),
abrogated on other grounds by Shular,
140 S. Ct. at 784; United States v. Brandon,
247 F.3d
186, 191 (4th Cir. 2001) (asking, more narrowly, whether the prior offense âintrinsically
involves the proscribed conductâ in § 924(e)(2)(A)(ii), or whether that âconduct is an inherent
part or result of the generic [state] crime of convictionâ). There are dictionary definitions
supporting both views.9
At the same time the ârelates to or connects withâ line of cases developed, courts
considering similar provisions outside the § 924(e)(2)(A)(ii) context often interpreted
âinvolvingâ more narrowly. The most significant example is the Supreme Courtâs decision in
Kawashima v. Holder, 565 U.S. 478, 481, 484-85 (2012). Applying the categorical approach,
Kawashima held that an immigration statute providing for removal upon commission of an
offense that âinvolves fraud or deceitâ applies to âoffenses with elements that necessarily entail
fraudulent or deceitful conduct.â
Id. (emphasis added). Several decisions in other contexts have
taken similar approaches.10
9For example, one entry in Merriam Webster defines âinvolveâ to mean âto have within or as part of itself:
Include,â or âto require as a necessary accompaniment: Entail,â which hews closely to the narrower Brandon
articulation; but another entry defines the word to mean âto relate closely: Connect,â which echoes the ârelates to or
connects withâ formulation. Involve, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/involve
(last accessed Aug. 2, 2022).
10See, e.g., Lovano v. Lynch, 846 F.3d 815, 817 (6th Cir. 2017) (describing BIA interpretation of statutory
phrase âcrime involving moral turpitudeâ as asking whether prior crimes ânecessarily entail[] conductâ reaching
certain levels of culpability); United States v. Reliford,
471 F.3d 913, 916 (8th Cir. 2006) (applying a ânecessarily
entailsâ test to determine, under
18 U.S.C. § 924(e)(2)(B)(ii), whether a prior offense âotherwise involves conduct
that presents a serious potential risk of physical injury to anotherâ); United States v. Montgomery,
402 F.3d 482, 488
(5th Cir. 2005) (same); United States v. Scheels,
846 F.3d 1341, 1342 (11th Cir. 2017) (per curiam) (noting that
â[t]he ordinary meaning of âinvolve,âââas used in U.S.S.G. § 2G2.1(b)(4)âs enhancement for offenses that
âinvolve[] material that portrays sadistic or masochistic conductâââis â[t]o have as a necessary feature or
consequence; entail,â or âto have within or as a part of itselfââ (emphasis added) (citations omitted)); United States
v. Lachowski,
405 F.3d 696, 699 (8th Cir. 2005) (applying similar definition to interpret word âinvolvingâ in
No. 20-5521 United States v. Fields Page 23
Shular appeared to adopt the Kawashima interpretation of âinvolvesâ in the
§ 924(e)(2)(A)(ii) context. The parties in Shular disagreed on the type of categorical analysis
§ 924(e)(2)(A)(ii) calls for. Thedefendant argued for a âgeneric-offense matching exercise,â
under which state-law convictions only constitute âserious drug offensesâ if their elements match
the elements of the âgenericâ versions of the offenses listed in § 924(e)(2)(A)(ii). 140 S. Ct. at
783-84. The government argued that the Kawashima test should apply instead, which requires
courts to ask if the elements of the prior offense necessarily entail conduct described in
§ 924(e)(2)(A)(ii), without the need to define a generic offense. The Court concluded that the
governmentâs reading was the correct one. See id. at 784-85 (âIn the Governmentâs view, a court
should apply âthe Kawashima categorical approachâ: It should ask whether the state offenseâs
elements ânecessarily entail one of the types of conductâ identified in § 924(e)(2)(A)(ii) . . . .
The Governmentâs reading, we are convinced, correctly interprets the statutory text and
context.â).
Post-Shular, several circuits that previously applied (or favorably cited cases applying)
the ârelates to or connects withâ test have recognized that Kawashimaâs ânecessarily entailsâ test
now governs in § 924(e)(2)(A)(ii) contexts. See United States v. Godinez, 955 F.3d 651, 656-57
(7th Cir. 2020); United States v. Coleman,
977 F.3d 666, 669-70 (8th Cir. 2020); United States
v. Smith,
983 F.3d 1213, 1223 (11th Cir. 2020).11 The Ninth Circuitâwhich rejected this
21 U.S.C. § 853(q), which provides for restitution for crimes âinvolving the manufacture of amphetamine or
methamphetamineâ).
11
For pertinent pre-Shular decisions from these circuits, see United States v. Williams, 931 F.3d 570, 575
(7th Cir. 2019); United States v. Bynum,
669 F.3d 880, 886-87 (8th Cir. 2012); see also United States v. Smith,
775
F.3d 1262, 1267 (11th Cir. 2014) (noting that § 924(e)(2)(A)(ii) ârequire[s] only that the predicate offense
âinvolv[es]â . . . certain activities related to controlled substancesâ (alteration in original) (emphasis added)); United
States v. White,
837 F.3d 1225, 1233 (11th Cir. 2016) (stating that several cases in the ârelates to or connects withâ
line of decisions have âlikewise adopted an expansive interpretation of the word âinvolvingââ). The Fifth Circuitâ
another prior adherent to the broader version of the test, see United States v. Vickers,
540 F.3d 356, 365 (5th Cir.
2008)ârecently discussed (but declined to rule on) Shularâs impact on the ârelates to or connects withâ test. United
States v. Prentice,
956 F.3d 295 (5th Cir. 2020). The court assumed without deciding that the defendant was correct
when he argued that Shular endorsed a narrower understanding of âinvolvingâ than Vickers did, but held that even
under Shular, the prior crime at issue was a âserious drug offense.â
Id. at 299. The panel noted, however, that
Shular âalteredâ the rationale of its pre-Shular caselaw. See
id. (âShular altered the rationale underlying Vickers,
but not its result.â);
id. at 300 (âThe precise reasoning of Vickers, i.e., its interpretation of âinvolving,â differs from
that of Shular and seems at odds with Shularâs focus on the underlying conduct charged in state offenses.â).
Similarly, although the First Circuit previously read âinvolveâ to mean ârelate closelyâ or âconnect closelyâ when
construing § 924(e)(2)(A)(ii) (but added that âinvolvingâ should not be read too broadly), United States
v. McKenney,
450 F.3d 39, 43, 45 (1st Cir. 2006), it later applied Shularâs ânecessaryâ approach when construing
No. 20-5521 United States v. Fields Page 24
broader test pre-Shular, see Franklin,
904 F.3d at 800-02 & n.9âhas recognized the same in a
post-Shular decision. United States v. Davis,
806 F. Appâx 572, 574 (9th Cir. 2020).
One panel is usually bound by the ruling of a previous one, but there is an exception to
that rule when the Supreme Court issues an intervening decision that is directly on point.
Ne. Ohio Coal. for the Homeless v. Husted, 831 F.3d 686, 720-21 (6th Cir. 2016). That
exception applies even when the intervening Supreme Court decision is not âprecisely on pointâ
but provides âdirectly applicableâ legal reasoning,
id., or when it provides on-point dictum, see
In re Baker,
791 F.3d 677, 682-83 (6th Cir. 2015) (stating that on-point Supreme Court dictum in
bankruptcy case governed rather than prior panel holding, to extent the two conflicted). Here,
Shular is directly on point. It held that the government âcorrectlyâ read § 924(e)(2)(A)(ii), and
the government had asserted that the statute calls for courts to âask whether the state offenseâs
elements ânecessarily entail one of the types of conductâ identified in § 924(e)(2)(A)(ii).â
Shular,
140 S. Ct. at 784-85. To the extent that this ânecessarily entailsâ test was part of the
Courtâs underlying rationale for adopting the governmentâs conduct-based interpretation, we are
bound to follow it. See Ne. Ohio Coal. for the Homeless, 813 F.3d at 721.
We are aware of no circuit decisions declining to follow Shularâs discussion of the
ânecessarily entailsâ test on the basis that it was dictum. And some decisions have expressly
stated that this discussion was part of Shularâs holding. See Smith, 983 F.3d at 1223 (âThe
Supreme Court held that a court determining whether an offense qualifies as a serious drug
offense need only consider whether the offenseâs elements ânecessarily entailâ the types of
conduct identified in the ACCAâs definition rather than engage in a âgeneric-offense matching
exercise.ââ (quoting Shular,
140 S. Ct. at 783-84)); United States v. Curry,
833 F. Appâx 328,
329 (11th Cir. 2020) (same). But we note that after Shular stated that the government
âcorrectlyâ read § 924(e)(2)(A)(ii) as requiring courts to apply the âKawashima categorical
approach,â it notedâin a single sentence three paragraphs laterâthat the parties agreed on
âinvolvingâ as used in another statutory provision, United States v. Sandoval,
6 F.4th 63, 108-10 (1st Cir. 2021).
And we recently recognized, albeit when interpreting a Guidelines provision rather than § 924(e)(2)(A)(ii), that
Shularâs narrower understanding of âinvolveâ may be at odds with Easonâs broader understanding of the term.
United States v. Gould,
30 F.4th 538, 545-46 (6th Cir. 2022); see also United States v. Winn, No. 20-1477,
2022 WL
636633, at *4 n.7 (3d Cir. Mar. 4, 2022) (recognizing that Shular introduced a new approach).
No. 20-5521 United States v. Fields Page 25
the dictionary definition of âinvolveâ as meaning ânecessarily require.â Shular,
140 S. Ct. at
783-85.12 The same is the case here.
Though no party raises it, we can imagine an argument that Shularâs recognition of party
agreement on that definition somehow deprived its discussion of the ânecessarily entailsâ test of
any precedential value. A close reading of Shular, however, cuts the other way. It is true that
the parties agreed on the definition of âinvolving,â but they did not agree on the test to apply in
§ 924(e)(2)(A)(ii) cases. That was the dispute the Court aimed to resolve. See id. at 782 (âThis
case concerns the methodology courts use to apply that definition.â); id. at 783-84 (describing
the generic element-matching test and then the Kawashima ânecessarily entailsâ test, then
stating, â[t]his case invites us to decide which of the two categorical methodologies just
described appliesâ).
The Court set up and resolved that dispute by describing both partiesâ proposed
approaches and affirmatively choosing the governmentâs test. See id. at 784-85 (âIn the
Governmentâs view, a court should apply âthe Kawashima categorical approachâ [and] ask
whether the state offenseâs elements ânecessarily entail one of the types of conduct identified in
§ 924(e)(2)(A)(ii). . . . The Governmentâs reading, we are convinced, correctly interprets the
statutory text and context.â). The Courtâs recognitionâin a single sentence, three paragraphs
laterâthat the parties agreed on the dictionary definition of âinvolveâ does not erase its previous
articulation of its own position: that the governmentâs interpretation (that the Kawashima test
applies) was the âcorrect[]â one. Id. at 785.
The view that Shularâs holding focused solely on whether § 924(e)(2)(A)(ii) referred to
conduct or generic elements, and that any comment on the applicable test (i.e., Kawashimaâs test
or something else) was extraneous carves out the Courtâs explicit recognition that the
12See id. at 785 (â[B]y speaking of activities a state-law drug offense âinvolv[es],â § 924(e)(2)(A)(ii)
suggests that the descriptive terms immediately following the word âinvolvingâ identify conduct. The parties agree
that âinvolveâ means ânecessarily requir[e].â Brief for Petitioner 14 (citing Random House Dictionary of the English
Language 1005 (2d ed. 1987) (âto include as a necessary circumstance, condition, or consequenceâ)); Brief for
United States 21 (same). It is natural to say that an offense âinvolvesâ or ârequiresâ certain conduct. . . . To refer to
offenses as Shular urges, it would have been far more natural for the drafter to follow the enumerated-offense clause
in using âis,â not âinvolving.â Yet Congress did not adopt that formulation in § 924(e)(2)(A)(ii), opting instead for
language suited to conduct.â (citations omitted)).
No. 20-5521 United States v. Fields Page 26
government âcorrectly interpretedâ § 924(e)(2)(A)(ii) as requiring inquiry into whether a state
offenseâs elements ânecessarily entailedâ the conduct listed in the provision. This view also
supposes that the Courtâdespite setting out to identify the correct âmethodology courts use to
applyâ the serious-drug-offense definition, id. 782âchose to avoid articulating the proper test,
and that it did so without noting that it did not intend its articulation of the âcorrect[]â test to be
binding.
Further, Shular resolved a dispute over whether the generic-offense test or some other
test applied. One side said the generic-offense test applied while the other said the Kawashima
test applied. The Court said the latter represented a correct reading of the statute. That
statementâthat Kawashimaâs test is the âcorrect[]â oneâwas part of its answer to the central
issue raised in the case. That statement was not dictum, see Wright v. Spaulding, 939 F.3d 695,
701 (6th Cir. 2019) (âThe decision of the issue must contribute to the judgment[.]â), and, at
minimum, is certainly an intervening on-point statement of the Court.13 Further, as Judge
Murphy thoughtfully explains in his separate opinion, it is the better understanding of the word
âinvolve.â
We thus conclude that we should follow Shular and now ask whether the elements of
Fieldsâs state offenses ânecessarily entailâ conduct described in § 924(e)(2)(A)(ii). All agree that
âmanufacturingâ is the only conduct implicated. So, we ask if the Meth-Precursor Offense
ânecessarily entailsâ manufacturing.
13But even if the statement were dictumâa proposition we have not seen any post-Shular courts
definitively endorseâwe would still follow it here. âHonoring intervening Supreme Court authority is a critical
duty for any lower court, including ours.â Williams v. Burt, 949 F.3d 966, 977 (6th Cir. 2020); see also Ne. Ohio
Coal. for the Homeless,
831 F.3d at 721 (â[L]ower courts are âbound not only by the holdings of higher courtsâ
decisions but also by their âmode of analysisââ (quoting Troy v. Samson Mfg. Corp.,
758 F.3d 1322, 1326 (Fed. Cir.
2014))). Accordingly, our circuit has repeatedly stated that we must give on-point Supreme Court dictum
substantial weight. See, e.g., Holt v. City of Battle Creek,
925 F.3d 905, 910 (6th Cir. 2019) (âEven if the Supreme
Courtâs statement in Encino was dicta outside of the context of the salesman exemption, â[l]ower courts are
obligated to follow Supreme Court dicta, particularly where there is not substantial reason for disregarding it, such
as age or subsequent statements undermining its rationale.ââ (quoting In re Baker,
791 F.3d at 682; Murray v. U.S.
Depât of Treasury,
681 F.3d 744, 750 n.5 (6th Cir. 2012); ACLU of Ky. v. McCreary County,
607 F.3d 439, 447 (6th
Cir. 2010); United States v. Marlow,
278 F.3d 581, 588 n.7 (6th Cir. 2002); United States v. Morgan,
572 F. Appâx
292, 301 (6th Cir. 2014). There is no substantial reason to disregard Shularâs indication that the narrow
interpretation of âinvolveâ applies under § 924(e)(2)(A)(ii).
No. 20-5521 United States v. Fields Page 27
2.
Section 924(e)(2)(A)(ii) does not define âmanufactureâ but the Controlled Substances
Act does. It defines manufacture to âmean[] the 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[.]â 21 U.S.C. § 802(15). When used in
connection with a word like âsubstanceâ or âdrug,â the words in this definition connote (1) the
creation of a final product from component ingredients and (2) the initiation of a process for
doing so.14
Statutory context indicates that § 802(15)âs definition of âmanufactureâ does not
encompass mere possession of a precursor with intent to manufacture. Congress chose to create
separate substantive offenses for âmanufacturingâ (see 21 U.S.C. § 841(a)(1)), on the one hand,
and possession of ingredients with intent to manufacture, on the other, see, e.g.,
id. §§ 841(c)(1),
843(a)(6). Reading § 802(15)âs definition of âmanufactureâ to include possession with intent to
manufacture would collapse the distinction between these crimes; and if Congress meant the
word âmanufactureâ to include possession with intent, it would have been pointless to treat that
conduct as a crime separate from the substantive offense of manufacturing.
14âProduce,â âprepare,â and âcompoundâ describe the creation of a final product from several ingredients;
âproduceâ and âprepareâ also refer to engaging in a process to do so, as do âpropagateâ and âprocess.â See id.
§ 802(22) (defining âproductionâ to âinclud[e] the manufacture, planting, cultivation, growing, or harvesting of a
controlled substanceâ); Produce, OXFORD ENGLISH DICTIONARY, https://tinyurl.com/3szjh3dd (last accessed Aug. 2,
2022) (to âbring (a thing) into existence from its raw materials or elements, or as the result of a processâ);
Preparation, OXFORD ENGLISH DICTIONARY, https://tinyurl.com/2bvr7ryz (last accessed Aug. 2, 2022) (the âaction
or process of specially producing or making up a thing in its proper condition for use or consideration . . . the
making of a chemical compound, drug, etc., from appropriate starting materialsâ); Prepare, OXFORD ENGLISH
DICTIONARY, https://tinyurl.com/5a55f26z (last accessed Aug. 2, 2022) (âTo produce, form, or make, esp. by
bringing together ingredients or components; to manufacture; to synthesize, concoct, compound. . . . To bring (an
object, substance, surface, etc.) into a fit condition for use by means of some special or technical processâ);
Compound, OXFORD ENGLISH DICTIONARY, https://tinyurl.com/p7pdjp79 (last accessed Aug. 2, 2022) (âTo make up
(a composite product) by the mixture of combination of various ingredients or elementsâ). Process, OXFORD
ENGLISH DICTIONARY, https://tinyurl.com/3hjcbsbj (last accessed Aug. 2, 2022) (âTo subject to or treat by a special
process; to operate on mechanically or chemically.â); Propagate, OXFORD ENGLISH DICTIONARY,
https://tinyurl.com/ejs36j4c (last accessed Aug. 2, 2022) (â[T]o cause (a plant, animal, etc.) to reproduce or
multiply.â).
No. 20-5521 United States v. Fields Page 28
3.
The Kentucky meth-precursor statute prohibits the âunlawful possessionâ of a âdrug
product or combination of drug products containing ephedrine, pseudoephedrine, or
phenylpropanolamine, or their salts, isomers, or salts of isomers, with the intent to use the drug
product or combination of drug products as a precursor to manufacturing methamphetamine or
other controlled substance.â Ky. Rev. Stat. § 218A.1437(1).15
In Kentuckyâs methamphetamine-focused statutory framework, the meth-precursor
statute sits near the bottom of the ladder. It applies when someone possesses one of the
chemicals listed in § 218A.1437(1) with intent to manufacture methamphetamine. Possession of
two or more of those chemicalsâor any others used for manufacturing methamphetamineâis a
more serious Class B felony under Kentuckyâs methamphetamine-manufacturing statute.
Id. § 218A.1432(1)(b). That statute proscribes âknowingly and unlawfullyâ (a) manufacturing
methamphetamine or (b) â[w]ith intent to manufacture methamphetamine possess[ing] two (2) or
more chemicals or two (2) or more items of equipment for the manufacture of
methamphetamine.â Id. § 218A.1432(1)(a)-(b).
The âonly differenceâ between the meth-precursor statute and the chemical-possession
subsection of the methamphetamine-manufacturing statute is that âthe manufacturingmethamphetamine statute requires possession of additional contraband beyond that necessary for
a possession-of-a-methamphetamine-precursor conviction.â Sevier v. Commonwealth,
434 S.W.3d 443, 451-52 (Ky. 2014) (noting that the methamphetamine-manufacturing statuteâs
chemical-possession prong has, for practical purposes, the same âintentâ element as the meth-precursor statute and âsimply requires proof of an additional factâââpossession of an additional
chemicalâ).
The Kentucky Supreme Court has stated that both the meth-precursor statute and
âchemical-possessionâ prong of the methamphetamine-manufacturing statute can be violated
15Some of the chemicals listed in this statute are available in over-the-counter products that can be legally
purchased at pharmacies. For example, pseudoephedrine is found in the over-the-counter cold medicine, Sudafed.
See Hayes v. Commonwealth, 175 S.W.3d 574, 580 (Ky. 2005) (âSudafed is a cold medication containing
pseudoephedrine, a precursor used to manufacture methamphetamine.â).
No. 20-5521 United States v. Fields Page 29
before it is even possible to begin the manufacturing process. See Kotila v. Commonwealth,
114 S.W.3d 226, 240 (Ky. 2003) (âKRS § 218A.1437(1) . . . [was] intended to fill the gap
where there is proof of possession of a methamphetamine precursor . . . but not proof of
possession of . . . other chemicals necessary to manufacture methamphetamine.â) 16; Sizemore
v. Commonwealth,
2011 WL 317474 at *3 (Ky. Jan. 27, 2011) (noting that § 218A.1432(1)(b)
does ânot actually require that [the defendant] had been actively âinvolvedâ in manufacturing
methamphetamineâ or the ââmanufacturing processââ); id. (adding that statute requires no
âimmediate intent to manufactureâ and âimpl[ies] that an intent to manufacture at some point in
the future would sufficeâ).
4.
With that understanding, we turn to the partiesâ arguments. The government argues that
the meth-precursor statute requires intent to manufacture and therefore necessarily entails
manufacturing. Fields replies that intent to take an action does not necessarily mean the action
will occur and argues that the statute plainly does not require that someone manufacture a
controlled substance. Fields is correct.
To start, Kentuckyâs Supreme Court has specifically recognized that the meth-precursor
statute was meant to apply when a defendant was not yet even capable of manufacturing
methamphetamine because he did not yet possess the materials necessary to do so. Kotila, 114
S.W.3d at 240. It is hard to say that a statute tailored to situations where manufacture is not yet
possible ânecessarily entailsâ manufacturing conduct. Indeed, when a defendant possesses more
16Kotila has been partially abrogated, but not the proposition in the cited passage. Kotila held that a
previous version of the meth-manufacturing statuteâwhich only referred to possession of âtheâ chemicals or
equipment used in methamphetamine manufacture, as opposed to âtwo (2) or moreâ of eitherârequired possession
of all the chemicals or all the equipment necessary to manufacture methamphetamine. 114 S.W.3d at 236-37.
Kotila was abrogated by statute in 2005 when the legislature expressly added the âtwo (2) or moreâ language. And
Matheney v. Commonwealth,
191 S.W.3d 599, 602-04 (Ky. 2006) overruled Kotilaâs interpretation of the preamendment version of the statute, holding that this version also required only possession of two or more (not all)
chemicals or pieces of equipment. Kotilaâs recognition that § 218A.1437 fills a gap remains correct, but the size of
the gap has shrunk. Kotila said § 218A.1437 applied where a defendant possesses a methamphetamine precursor but
did not possess âall of the other chemicals necessary to manufacture methamphetamine.â
114 S.W.3d at 240
(emphasis added). But after Matheney and the 2005 statutory amendment, it is more accurate to say that the meth-precursor statute occupies a gap where a defendant possesses a precursor but there is no proof of possession of any
other chemicals used to manufacture methamphetamine. Once a defendant possesses any second chemical,
§ 218A.1432(1)(b) would apply instead.
No. 20-5521 United States v. Fields Page 30
than one methamphetamine ingredient, the harsher § 218A.1432(1)(b) statute would apply
instead. Sevier,
434 S.W.3d at 451-52. And the Kentucky Supreme Court has expressly stated
that even that statute does not âactually require that [the defendant] had been actively âinvolvedâ
in manufacturing methamphetamineâ or the ââmanufacturing process.ââ Sizemore,
2011 WL
317474 at *3. That observation necessarily applies to the meth-precursor statute as well, given
that the two statutes target the same conduct and intent. Sevier,
434 S.W.3d at 451-52.
These statements from the Kentucky Supreme Court show that the answer to our
dispositive questionâwhether a violation of § 218A.1437(1) necessarily entails âmanufacturingâ
methamphetamineâis âno.â So does common sense. Consider a variation on the district courtâs
hypothetical: âsomebody is in a drugstore and shoplifts a pack of Sudafed with the intent to take
it to a [methamphetamine] cookâ a month later, but is arrested right after leaving the store.17 It is
hard to see how that person was âmanufacturingâ methamphetamine. Because the person does
not yet have ingredients other than pseudoephedrine (if he did, he would be facing
§ 218A.1432(1)(b) charges instead), he necessarily cannot yet begin the process of combining
ingredients to form a finished product.
The government asserts that because a defendant convicted of the Meth-Precursor
Offense must have an intent to manufacture, âthe necessary result or consequence of his
possession [is] the manufacture of methamphetamine.â Govât Br. at 35. This logic does not hold
together. Intent to take an action does not necessarily mean the action will occur. The shoplifter
example bears that out. Because the shoplifter was arrested, no manufacturing process ever
began.18
Believing that Eason decides the issue, the district court reached the opposite conclusion.
To be sure, Eason is analogous; it found a conviction under a similar state statute to be a âserious
drug offense.â 919 F.3d at 387-92. But Eason asked if that offense ârelated to or connected
17Cf. Pittman v. Commonwealth, 2007 WL 1195442 at *1 (Ky. Ct. App. Apr. 6, 2007) (describing
indictment for meth-precursor offense after defendant was caught âstealing sudafed from a Kroger [pharmacy]
storeâ).
18Everyday examples suggest the same. For example, if a baker goes to the store on Monday to buy some
ingredients for a cake to be made on Saturday, nobody would say the baker had begun making the cake upon leaving
the store on Monday.
No. 20-5521 United States v. Fields Page 31
withâ manufacturing, a far broader (and more elastic) question. See Mellouli, 575 U.S. at 811-12
(noting that phrases like ârelating to[] are broad and indeterminateâ and âstop nowhereâ when
âextended to the furthest stretch of their indeterminacyâ (citations, alterations, and internal
quotation marks omitted)).19 Possessing a precursor with intent to manufacture may ârelate to
and connect withâ manufacturing, but the Shular question is whether it ânecessarily entailsâ
manufacturing. The latter test is narrower, and Eason never applied it.
The government makes one last argument: it points out that another provision of the
âserious drug offenseâ definition covers any offense under the Controlled Substances Act (CSA)
with a maximum sentence of ten or more years, 18 U.S.C. § 924(e)(2)(A)(i); contends that
possessing a precursor with intent to manufacture would amount to a CSA offense for possessing
certain kinds of chemicals with intent to manufacture under
21 U.S.C. § 843(a)(6) (which
provides a ten-year maximum sentence when applied to methamphetamine,
id. § 843(d)(2)); and
argues that Congress âcould [not] have intended to exclude state offenses that necessarily require
the intent to use a substance to manufacture methamphetamine, because that same conduct, when
charged under [§ 843(a)(6)], qualifies as a âserious drug offense.ââ Govât Br. at 36.
Again, we are not persuaded. We are interpreting § 924(e)(2)(A)(ii) here, not
§ 924(e)(2)(A)(i). If Congress wanted, it could have defined âserious drug offenseâ to include
any state-law offense that, had it been prosecuted federally, would have fit the criteria described
in § 924(e)(2)(A)(i). Elsewhere, it has done just that. See, e.g., 18 U.S.C. § 3559(c)(2)(H)(i)-(ii)
(defining the term âserious drug offense,â in a different context, to mean either an offense under
certain federal drug-law provisions or a state-law offense âthat, had [it] been prosecuted in a
[federal] court . . . would have been punishable underâ those same federal provisions). But it
chose not to here. The categorical approach requires us to focus on the words Congress used in
19Accord Maracich v. Spears, 570 U.S. 48, 59-60 (2013) (âThe phrase âin connection withâ is essentially
âindeterminat[e]â because connections, like relations, âstop nowhere.â So the phrase âin connection withâ provides
little guidance without a limiting principle[.]â (citations omitted);
id. at 60 (â[A]pplying the ârelate toâ provision
according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed,
everything is related to everything else.â (quoting Cal. Div. of Lab. Standards Enfât v. Dillingham Constr., N.A.,
Inc.,
519 U.S. 316, 335 (1997) (Scalia, J., concurring)); N.Y. State Conf. of Blue Cross & Blue Shield Plans
v. Travelers Ins. Co.,
514 U.S. 645, 655 (1995) (âIf ârelate toâ were taken to extend to the furthest stretch of its
indeterminacy, then for all practical purposes pre-emption would never run its course, for â[r]eally, universally,
relations stop nowhere.ââ (citation omitted)).
No. 20-5521 United States v. Fields Page 32
the enhancement being applied. The governmentâs final argument strays too far afield from that
task.20
In short, it is possible to violate the meth-precursor statute without committing
manufacturing conduct. Accordingly, the Meth-Precursor Offense does not ânecessarily entailâ
manufacturing under § 924(e)(2)(A)(ii) and does not constitute a âserious drug offense.â
B. The Trafficking Offense
Fields also argues that his second state-court convictionâfor first degree trafficking in a
controlled substance, in violation of Ky. Rev. Stat. § 218A.1412âdoes not constitute a âserious
drug felony.â This provision prohibited âknowingly and unlawfully traffic[king]â in a number of
drugs, including âmethamphetamine.â Ky. Rev. Stat. § 218A.1412(1) (effective June 8, 2011 to
March 24, 2015). Fields argues that this offense is overly broad because at the time of his
offense (2012/13), an over-the-counter inhaler containing certain levels of levmetamfetamine
would have fit within Kentuckyâs definition of an illegal âmethamphetamine,â while federal
regulations exempted the same kind of over-the-counter inhaler.
The categorical approachâs directive to âfocus on the minimum conduct criminalized by
the state statute is not an invitation to apply âlegal imaginationâ to the state offense; there must be
âa realistic probability, not a theoretical possibility, that the State would apply its statute to
conduct that falls outside [the federal statuteâs coverage].ââ Moncrieffe v. Holder, 569 U.S. 184,
191 (2013) (quoting Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007)). The defendant
âmust at least point to his own case or other cases in which the state courts in fact did apply the
statute in the special . . . manner for which he argues.â Duenas-Alvarez,
549 U.S. at 193. Fields
fails to do so.
20And as noted above, the governmentâs reference to 21 U.S.C. § 843(a)(6), if anything, hurts its position.
Congress chose to make âmanufacturingâ and possession of chemicals with intent to manufacture separate crimes,
under
21 U.S.C. §§ 841(a)(1) and 843(a)(6), respectively. If we interpret
21 U.S.C. § 802(15)âs definition of
âmanufactureâ to include possession of chemicals with intent to manufacture, we would partially collapse the
distinction between these two crimes, because anytime someone possessed chemicals with intent to manufacture,
they would also (under such a reading) be guilty of manufacturing. If anything, the existence of § 843(a)(6)
underscores that § 802(15)âs definition of âmanufactureâ does not include possession with intent to manufacture,
because any other reading would render other substantive portions of the CSA superfluous.
No. 20-5521 United States v. Fields Page 33
And as the government points out, the hypothetical prosecution Fields describes is highly
unrealistic. Since 2005, a Kentucky statute required the state agency responsible for scheduling
controlled substances to âexclude any nonnarcotic substance from a schedule if the substance
may be lawfully sold over the counter without prescriptionâ under the Federal Food, Drug, and
Cosmetic Act (FDCA) or the Federal Comprehensive Drug Abuse Prevention and Control Act of
1970. Ky. Rev. Stat. § 218A.020(4). The FDA exempted the inhaler Fields mentions from
federal schedules in 2010, two years before his 2012 Trafficking Offense. See 75 Fed. Reg.
13678, 13678 (Mar. 23, 2010) (final rule categorizing this inhaler as a ânonnarcotic drug
product[] which may be lawfully sold over the counter without a prescription under the
[FDCA]â). Fields accurately notes that by 2012, the relevant state agency had not yet exempted
the inhaler from state schedules. See 902 K.A.R. 55:040 (2012 ed.).21 But a Kentucky statute
required the inhaler to be exempted. As the government argues, it is highly improbable that
Kentucky would prosecute someone for âtraffickingâ in an over-the-counter inhaler that its own
statutes required to be exempted from state schedules. That, along with Fieldsâs failure to cite
any examples of such a prosecution, is fatal to this argument. Duenas-Alvarez,
549 U.S. at
193.22
Finally, in a barely developed argument, Fields argues that the Kentucky trafficking
statute is overly broad because Kentuckyâs definition of âtraffickingâ includes âdispensing,â
which is âexcepted from 18 U.S.C. § 924(e)(2)(A)(ii).â Fields Br. at 31. Fields looks to United
States v. Goldston to support this assertion.
906 F.3d 390 (6th Cir. 2018). In that case, however,
we rejected the argument that Tennesseeâs definition of âdeliverâ was overly broad for including
âdispensingâ because Tennessee does not actually criminalize âdispensingâ in that by definition
dispensing can only occur âby or pursuant to the lawful order of a practitioner.â
Id. at 395
21Kentucky eventually amended its regulations in 2017 to simply exclude all over-the-counter products
excluded from federal schedules, as opposed to enumerating each excluded product. 902 K.A.R. 55:040 (2017 ed.).
22Fields cites two of our decisions that, he says, held state-law offenses categorically overbroad where the
overbreadth was âplainâ from the statute, even without identification of any state-court cases demonstrating the
precise type of prosecution that would render the statute overbroad. Reply Br. at 27-28 (citing United States v. Lara,
590 F. Appâx 574 (6th Cir. 2014); United States v. McGrattan,
504 F.3d 608, 614 (6th Cir. 2007)). But both
decisions concluded that there was a ârealistic possibilityâ that the potentially overbroad prosecution could occurâ
and they cited either out-of-state cases featuring prosecutions under a similar statute (Lara) or in-state cases
addressing prosecutions for related issues (McGrattan). Lara,
590 F. Appâx at 584; McGrattan,
504 F.3d at 614-15.
Fields relies on a uniquely unrealistic possibility and cites no cases in support.
No. 20-5521 United States v. Fields Page 34
(quoting Tennessee law). Under Kentuckyâs statutory scheme, â[d]ispens[ing]â is also defined
as âdeliver[ing] a controlled substance . . . by or pursuant to the lawful order of a practitioner,â
Ky. Rev. Stat. § 218A.010(11), which, following Goldstonâs reasoning and the fact that Fields
cites no other case to support his argument, makes it equally unrealistic that Kentucky would
apply § 218A.1412 to conduct falling outside § 924(e)(2)(A)(ii)âs coverage. Cf. Goldston,
906
F.3d at 395-97; see also United States v. Fox, No. 20-6039,
2021 WL 3747190 at *2-4 (6th Cir.
Aug. 25, 2021) (concluding that âKentuckyâs first-degree drug-trafficking qualifies as a âserious
drug felonyâ under the First Step Actâ). Thus, we reject Fieldâs final argument.
V. CONCLUSION
In sum, we reject Fieldsâs challenges to the procedure used to impose his enhancement
and his argument that the Trafficking Offense was not a âserious drug offense.â We agree with
Fields that the Meth-Precursor Offense was not a âserious drug offenseâ and therefore cannot
serve as a âserious drug felonyâ for purposes of Fieldsâs twenty-five-year-mandatory-minimum
enhancement. We therefore VACATE Fieldsâs sentence and REMAND for resentencing
consistent with this opinion.
No. 20-5521 United States v. Fields Page 35
_________________
CONCURRENCE
_________________
MURPHY, Circuit Judge, concurring. I concur in Judge Whiteâs excellent opinion for
the court. I write to add a few more thoughts on whether we should follow the narrow
interpretation of the word âinvolvingâ from Shular v. United States, 140 S. Ct. 779 (2020), or
stick with the broad interpretation from United States v. Eason,
919 F.3d 385 (6th Cir. 2019).
I find the issue difficult. We have a duty to follow a published precedent like Eason, and its
reading comports with the near consensus of courts that considered this issue before Shular. Yet
Shularâs reasoning calls Eason into doubt. And the federal governmentâwhich appears to have
changed positions between Eason and Shularâdoes not ask us to follow Easonâs broad
interpretation as a precedential matter. At dayâs end, I view Shularâs reading as the correct one.
And because Shular allows us to depart from Eason under our precedent on precedent, we should
adopt that reading here.
I
Several federal drug laws increase the length of a defendantâs sentence if the defendant
has one or more prior convictions for a âserious drug felony,â a phrase that incorporates the
Armed Career Criminal Actâs definition of âserious drug offense.â 21 U.S.C. §§ 802(57), 841.
The Armed Career Criminal Act, in turn, defines âserious drug offenseâ to cover âan offense
under State law, involving manufacturing, distributing, or possessing with intent to manufacture
or distribute, a controlled substanceâ if the offense has a maximum punishment of ten or more
years in prison.
18 U.S.C. § 924(e)(2)(A)(ii). This definition raises a recurring question of great
importance for defendants convicted of various drug or firearm offenses. Suppose a defendant
has previously committed a state crime like attempting to manufacture drugs, conspiring to
distribute drugs, or possessing an ingredient with an intent to manufacture drugs. Do these
inchoate crimes âinvolveâ drug âmanufacturingâ or âdistributingâ under § 924(e)(2)(A)(ii) even
if a person can accomplish them without engaging in anything that resembles manufacturing or
distributing?
No. 20-5521 United States v. Fields Page 36
This case brings us to a fork in the road on this question. Down one path, we could
continue to follow Eason. That decision treated these types of incomplete crimes as âserious
drug offensesâ even if a defendant could commit them without manufacturing or distributing
drugs (or possessing drugs with the required intent). 919 F.3d at 390â92; see also United States
v. Myers, 925 F.3d 881, 884â86 (6th Cir. 2019); Young v. Quintana,
2019 WL 11863648, at *4
(6th Cir. May 15, 2019). Eason considered a Tennessee law that barred a person from buying a
methamphetamine ingredient with reckless disregard as to whether the ingredient would be used
to make methamphetamine. 919 F.3d at 388â89. There, we interpreted the statutory definitionâs
key wordâinvolvingâto mean ârelated to or connected with[.]â
Id. at 390 (citation omitted).
And while a defendant could commit the crime by merely buying an ingredient (without starting
the manufacturing process), we found that this conduct was related to manufacturing because it
was âan essential first step to the drugâs manufacture.â
Id. at 391. This broad reading adopted
the governmentâs position in Eason: âThe test should be whether the prior conviction was
ârelated to or connected withâ drug manufacture, distribution, or possession with intent to
manufacture or distribute, as long as the relationship is not âtoo remote or tangential.ââ Brief for
the United States at 13, Eason,
919 F.3d 385 (No. 18-5387),
2018 WL 3218556 (citation
omitted).
Down the other path, we could follow language from Shular. That language suggests that
we should exclude these inchoate crimes from the definition of âserious drug offenseâ if a
defendant could commit them without manufacturing or distributing drugs (or possessing them
with the required intent). See 140 S. Ct. at 785. Shular considered the process that courts should
follow to decide whether a state offense qualifies as a âserious drug offense.â
Id. at 782. The
defendant argued that courts should identify the elements of a âgenericâ manufacturing,
distributing, or possessing offense and ask whether the defendantâs crime contains all elements
of this court-identified âgenericâ crime.
Id. The government responded that courts should ask
simply whether the defendantâs crime will always âinvolveâ the listed behaviorâmanufacturing
drugs, distributing drugs, or possessing drugs with the required intent.
Id. The Court adopted
the governmentâs view because, unlike extortion or burglary, things like âmanufacturingâ or
âdistributingâ are not âgenericâ offenses with well-established elements.
Id. at 785. The Court
added that the statuteâs use of the verb âinvolveâ (instead of âisâ) more naturally called for a
No. 20-5521 United States v. Fields Page 37
conduct-based approach than a generic-offense approach.
Id. When making this latter point, the
Court noted that both parties (including the government) agreed that âinvolveâ narrowly means
ânecessarily requir[e]â (not ârelate toâ).
Id. (citation omitted). The government thus abandoned
in Shular the broad definition of âinvolveâ it asked our court to adopt in Eason.
II
Which path should we choose now? Should we continue to apply Easonâs broad
definition (ârelate toâ)? Or should we switch to Shularâs narrow definition (ânecessarily entailâ
or ânecessarily requireâ)? This question raises tricky procedural and substantive questions.
A
Two factors suggest that we should stick with Easonâs broad reading. First, precedential
concerns point that way. We generally must follow a published precedent like Eason (whether
right or wrong) until the Supreme Court or our en banc court jettisons it. See Salmi v. Secây of
Health & Hum. Servs., 774 F.2d 685, 689 (6th Cir. 1985). And it is not obvious to me that
Shular squarely confronted the key issue in this case, let alone rejected the broad definition of
âinvolveâ in favor of the narrow one. Nothing in Shularâs bottom-line holdingâthat courts
should decide whether a state crime is a âserious drug offenseâ using a conduct-based approach,
not a generic-offense approachâseems to have turned on this subtle difference in the meaning of
âinvolve.â
140 S. Ct. at 785. Shularâs chosen conduct-based approach makes sense whether that
word means ârelate toâ or ârequire.â Its references to the narrower definition thus do not appear
critical to the question presented or the ultimate result.
This distinction also might not have mattered to the outcome in Kawashima v. Holder,
565 U.S. 478 (2012). That case concerned a statute that required a court to determine whether a
prior crime âinvolv[ed] fraud or deceit.â See
id. at 485. The Court noted in one sentence that
this phrase covered âoffenses with elements that necessarily entail fraudulent or deceitful
conduct.â
Id. at 483â84. It went on to hold that the specific crimes at issue necessarily entailed
deceit even if they did not include deceit as a formal element.
Id. at 484â85. The Court thus did
not need to address whether âinvolveâ could also reach crimes that were merely related to deceit.
No. 20-5521 United States v. Fields Page 38
Given the ultimate holdings of these cases, I doubt that the Court itself would feel bound
by Shularâs references to the ânecessarily entailsâ or ânecessarily requiresâ test if it addresses
this caseâs question about the meaning of âinvolving.â After all, the Court has repeatedly said
that it does not âdissectâ every sentence of its opinions as if they were enacted statutes that have
passed through both houses of Congress. St. Maryâs Honor Ctr. v. Hicks, 509 U.S. 502, 515
(1993); see Borden v. United States,
141 S. Ct. 1817, 1833 n.9 (2021) (plurality opinion); Cent.
Green Co. v. United States,
531 U.S. 425, 431 (2001); Reiter v. Sonotone Corp.,
442 U.S. 330,
341 (1979). Still, I agree that Shularâs statements (even if dicta) cast enough doubt on Easonâs
reading to allow us to reassess that decisionâas the majority opinion explains when discussing
our caselaw on the requirement to follow prior precedent. See Ellmann v. Baker (In re Baker),
791 F.3d 677, 682â83 (6th Cir. 2015); cf. Gearlds v. Entergy Servs., Inc.,
709 F.3d 448, 452 (5th
Cir. 2013); Carpenters Loc. Union No. 26 v. U.S. Fid. & Guar. Co.,
215 F.3d 136, 141â42 (1st
Cir. 2000).
Second, besides the lack of an unambiguous Supreme Court holding giving the word
âinvolveâ a narrow construction, a practical concern favors Easonâs broader reading. Eason was
no outlier. If we depart from that decision, we depart from nearly every other court in the
countryâat least at the present time. Before Shular, a near-unanimous judicial consensus
interpreted âinvolveâ broadly to mean ârelated toâ or âconnected with.â See Eason, 919 F.3d at
390â91. These courts thus held that many similar inchoate offenses qualified as âserious drug
offensesâ even though a defendant could commit them without undertaking any manufacturing
or distributing. See, e.g., United States v. McKenney, 450 F.3d 39, 42â45 (1st Cir. 2006) (drug
conspiracy); United States v. King,
325 F.3d 110, 112â15 (2d Cir. 2003) (attempted drug crime);
United States v. Daniels,
915 F.3d 148, 152â67 (3d Cir. 2019) (attempted drug crime); United
States v. Winbush,
407 F.3d 703, 705â08 (5th Cir. 2005) (attempted drug crime); United States
v. Williams,
931 F.3d 570, 575â76 (7th Cir. 2019) (financing drug manufacturing or delivery);
United States v. Coleman,
700 F.3d 329, 339 (8th Cir. 2012) (attempted drug crime); United
States v. Alexander,
331 F.3d 116, 131 (D.C. Cir. 2003) (attempted drug crime). (The Fourth
Circuit reached a similar result for similar statutory language. See United States v. James,
834
F.2d 92, 93 (4th Cir. 1987).)
No. 20-5521 United States v. Fields Page 39
As the majority opinion rightly notes, other courts have begun to cite Shularâs
ânecessarily requireâ or ânecessarily entailâ test when discussing the word âinvolveâ in the
statutory definition of âserious drug offenseâ or similar definitions. See, e.g., United States
v. Sandoval, 6 F.4th 63, 108â09 (1st Cir. 2021); United States v. Smith,
983 F.3d 1213, 1223
(11th Cir. 2020); United States v. Ruth,
966 F.3d 642, 647 (7th Cir. 2020). As far as I am aware,
however, no circuit court has held that a crime that the court previously found covered (under its
old ârelated toâ test) no longer counts (under a new ânecessarily entailsâ test). Cf. United States
v. Prentice,
956 F.3d 295, 299â300 (5th Cir. 2020); United States v. Miles,
2021 WL 3077302, at
*2 (N.D. Fla. July 21, 2021). We thus would break significant new ground by relying on Shular
to depart from Eason.
B
In my mind, though, two factors point the other way. First, the government has not
argued that Easonâs ârelated toâ test binds us as a precedential matter. It instead continues to
embrace Shularâs narrow reading (while suggesting that this reading covers the Kentucky crime
at issue in this case). The governmentâs decision to accept the narrow reading may (or may not)
be intentional. Recall that, unlike in Eason, it advocated for the narrow definition in Shular,
asserting that âinvolveâ means to âinclude (something) as a necessary part or result.â Brief for
the United States at 13, Shular, 140 S. Ct. 779 (No. 18-6662),
2019 WL 6324154 (quoting New
Oxford Dictionary of English 962 (2001)). The government in Shular may well have departed
from its prior ârelated toâ test because the defendant claimed that this test was unworkable. See
Brief for Petitioner at 24â29, Shular,
140 S. Ct. 779 (No. 18-6662),
2019 WL 4689150.
According to the government, the ânecessarily entailsâ test avoids these administrative
headaches by adopting a âstraightforward inquiryâ that courts can easily apply. Transcript of
Oral Argument at 46, Shular,
140 S. Ct. 779 (No. 18-6662),
2020 WL 354451.
I agree that the narrow definition leads to an easy-to-apply test. But this test is easy to
apply precisely because it excludes inchoate crimes like the offenses at issue in this case and
Eason. Under the ânecessarily entailsâ or ânecessarily requiresâ framework, a court need only
ask whether a crime will always include manufacturing, distributing, or possessing with intent to
manufacture or distribute in order for a defendant to commit it. If the crime could be completed
No. 20-5521 United States v. Fields Page 40
without any of those activities occurring, the crime does not ânecessarily entailâ or ânecessarily
requireâ the activities (even if it is related to them). And here, the majority opinion persuasively
explains why a defendant could complete the crime of possessing an ingredient with intent to
produce methamphetamine without anyone engaging in anything resembling âmanufacturing.â
I simply do not understand the governmentâs contrary argument that the difference
between the two definitions does not matter in this case. Its view that an offense can
ânecessarily requireâ certain conduct even if the crime can be accomplished without that conduct
conflicts with the ordinary English meaning of those words. It also resurrects the workability
concerns that the government seemingly sought to eliminate by abandoning Easonâs ârelated toâ
test in Shular. I have no idea what crimes would (or would not) ânecessarily entailâ
manufacturing under the governmentâs view. The pre-Shular caselaw that treated inchoate drug
offenses as âserious drug offensesâ confirms that this distinction matters. These decisions do not
suggest that these inchoate offenses would involve manufacturing or distributing under a narrow
definition of âinvolve.â Rather, they treated such unfinished crimes as âserious drug offensesâ
by adopting the broad ârelated toâ test that the government previously espoused. See, e.g.,
Daniels, 915 F.3d at 155; Winbush,
407 F.3d at 707; King, 325 F.3d at 113â14. In one of these
cases, a defendant even quoted the narrow definition to argue that a state drug conspiracy was
not a serious drug offense. See McKenney, 450 F.3d at 42â43. The First Circuit did not hold
that the ânarrow definitionâ would cover the conspiracy. Id. at 43. It instead adopted the broad
definition that did cover it. Id.
In short, the difference between the definitions is critical. Yet the government does not
treat Shularâs narrow definition as dicta or Easonâs broad definition as binding. I suppose we
could find that Eason continues to bind us on our own initiative because litigants cannot force us
to create bad law through their agreements in the lawsuit. See Swift & Co. v. Hocking Valley Ry.
Co., 243 U.S. 281, 289 (1917); Weston v. Wash. Metro. Area Transit Auth.,
78 F.3d 682, 685
(D.C. Cir. 1996); Brown v. United States,
868 F.2d 859, 864 (6th Cir. 1989); cf. Terry v. United
States,
141 S. Ct. 1858, 1862 (2021). Nevertheless, that neither party treats Easonâs broad
reading as the binding test undermines any claim that we must continue to follow it after Shular.
No. 20-5521 United States v. Fields Page 41
Second, Shularâs narrow reading strikes me as the better one. The statutory definition of
âserious drug offenseâ dates to the Career Criminals Amendment Act of 1986. Pub. L. No. 99-
570, § 1402(b), 100 Stat. 3207, 3207-39 to 3207-40. Then, as now, âinvolveâ had a range of
meanings. Every dictionary that I have reviewed lists a definition like the following: âto include
as a necessary circumstance, condition, or consequence; imply; entail[.]â Random House
Dictionary of the English Language 1005 (2d ed. 1987); see also Oxford Dictionary of English
912 (2d ed. 2003); 8 Oxford English Dictionary 57 (2d ed. 1989); Websterâs Third New
International Dictionary 1191 (1986); American Heritage Dictionary of the English Language
690 (1969); Websterâs New International Dictionary of the English Language 1307 (2d ed.
1944). This definition might have grown out of the wordâs original meaning: to âenvelopâ or
âwrap up.â See 8 Oxford English Dictionary, supra, at 57. When âinvolveâ is used in this sense,
the subject that precedes the word typically contains or requires the direct object that comes after
it. It would apply, for instance, if an employer told a prospective employee that âthe job would
involve travel.â American Heritage Dictionary of the English Language 921 (4th ed. 2000). The
employee likely would think that the job requires travel (like the position of a traveling
salesperson), not that the job relates to travel (like the position of an airport baggage handler).
Other times, âinvolveâ means âimplicate.â When used to mean âimplicate,â the word
usually conveys that a person has a âclose, often entangling, connection with somethingâ that is
typically unsavory or criminal. Websterâs New International, supra, at 1307 (2d ed.). If, for
example, a politician discussed âevidence that involved the governor in the scandal,â the
politician would be describing evidence that connected the governor to the scandal.
American Heritage, supra, at 921 (4th ed. 2000). When âinvolveâ is used in this sense, the
subject that precedes the word (âevidenceâ) typically connects a direct object (âgovernorâ) to an
indirect object (âscandalâ).
Some dictionaries also suggest that âinvolveâ can mean ârelate closely.â Websterâs
Third, supra, at 1191; Websterâs Ninth New Collegiate Dictionary 637 (1984). Websterâs Third
lists as its lone example for this usage: âthe problem is closely involved with the management of
pastures.â Websterâs Third, supra, at 1191. It thus suggests that the phrasal verb âinvolved
withâ conveys this meaning (like the phrasal verb ârelate toâ). Cf. McGraw-Hillâs Dictionary of
No. 20-5521 United States v. Fields Page 42
American Idioms and Phrasal Verbs 352, 554 (2005). Another dictionary ties this ârelate toâ
meaning to another definition: âto relate to or affectâ as in âthe matter involves his honor.â
Websterâs New World Dictionary 711 (3d college ed. 1988); cf. Random House, supra, at 1005
(âto affect, as something within the scope of operationâ).
In sum, âinvolveâ can mean anything from âinclude,â to âimplicate,â to ârelate to.â We
thus must decide which usage an ordinary person would think best fits the statutory definition at
issue here. See United States v. Hill, 963 F.3d 528, 532â33 (6th Cir. 2020). To recap, âserious
drug offenseâ covers âan offense under State law, involving manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled substanceâ (as long as the
offense has at least a 10-year maximum sentence).
18 U.S.C. § 924(e)(2)(A)(ii). This text, it
seems to me, signals the first meaningââto include as a necessary circumstance, condition, or
consequence[.]â Random House, supra, at 1005. That is because âinvolvingâ connects an
intangible subject (âoffenseâ) with active objects (âmanufacturing, distributing, or possessing
with intent to manufacture or distributeâ). This construction is typical when âinvolveâ seeks to
convey that one thing contains another. Indeed, one dictionary even lists a directly on-point
example for this definition: âa bill proposing harsher penalties for crimes involving firearms and
drugs.â Oxford Dictionary of English, supra, at 912.
Admittedly, the First Circuitâthe only pre-Shular circuit to grapple with these differing
definitionsâthought that âconnect closelyâ or ârelate closelyâ was the better reading.
McKenney, 450 F.3d at 43 (citations omitted). I do not see why. The full definition with
âconnect closelyâ provides: â[t]o connect closely and often incriminatingly; implicate.â
American Heritage, supra, at 921 (4th ed. 2000). Yet the statute does not seek to convey that a
state offense is incriminatingly connected to the âmanufacturingâ or âdistributingâ of drugsâas
if this inanimate offense (like a person) could commit the crimes. The statute identifies the
conduct that the offense must contain (i.e., âincludeâ), not the conduct that the offense must have
participated in (i.e., âimplicateâ). As noted, moreover, when âinvolveâ means âimplicateâ or
âconnect,â an inanimate subject (like âevidenceâ) typically connects one thing (like âgovernorâ)
with something else (like âscandalâ). See id. This construction is a poor fit for this statute.
No. 20-5521 United States v. Fields Page 43
That leaves ârelate to.â I have found only a few dictionaries, including Websterâs Third
and Websterâs Ninth New Collegiate (an offshoot), that list this definition for âinvolve.â Yet the
Supreme Court has told us to use Websterâs Third âcautiouslyâ given its âfrequent inclusion of
doubtful, slipshod meanings[.]â Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 422 & n.21 (2012); see MCI Telecomms. Corp. v. Am. Tel. & Tel.
Co., 512 U.S. 218, 228 n.3 (1994). In addition, the statute does not use the phrasal-verb
construction (âinvolved withâ) that Websterâs Third associates with this usage. Websterâs Third,
supra, at 1191. Although another dictionary ties this ârelate toâ definition with âaffect,â
Websterâs New World, supra, at 711, the statute also does not suggest that a state offense must
have an effect on manufacturing or distributing. The statute instead conveys a meaning closer to
this dictionaryâs example for âincludeâ (âa project involving years of workâ) than its example for
ârelate to or affectâ (âthe matter involves his honorâ). Id.
Even if some lingering ambiguity existed, though, other contextual clues point to a
narrow reading. For starters, the broad definition comes with a superfluity downside. Congress
opted to identify three specific types of covered drug activities in the statutory definition:
manufacturing, distributing, and possessing with intent to manufacture or distribute. Yet the
third activity serves no purpose under a broad ârelated toâ definition of âinvolving.â I, for
example, would think that possessing a drug (say, cocaine) with an intent to manufacture another
drug (say, crack cocaine) ârelates toâ manufacturingâin the same way that purchasing a drug
ingredient relates to manufacturing. See Eason, 919 F.3d at 391â92. Similarly, possessing a
drug with an intent to distribute it also ârelates toâ distributionâas the Fourth Circuit essentially
held in a related context. See James, 834 F.2d at 93. If âinvolveâ means ârelate to,â Congress
had no reason to include this possession activity in the statute. The narrow definition, by
contrast, gives each of the three objects independent work to do. See Clark v. Rameker,
573 U.S.
122, 130â31 (2014); see also United States v. Colon,
268 F.3d 367, 376â77 (6th Cir. 2001).
To be sure, when Congress seeks to ensure wide coverage by using broad language, its
statutes will often contain some amount of redundancy. See Conn. Natâl Bank v. Germain, 503
U.S. 249, 253â54 (1992); cf. TMW Enters., Inc. v. Fed. Ins. Co.,
619 F.3d 574, 577â78 (6th Cir.
No. 20-5521 United States v. Fields Page 44
2010). And we must respect Congressâs choice if its unambiguous language shows that it opted
for this belt-and-suspenders approach. See Scalia &
Garner, supra, at 176â77.
But Congress does not appear to me to have opted for that approach here. If it sought to
broadly cover any state drug crime related to manufacturing or distributing, it could have simply
said ârelating to.â Congress has not been shy about using that phrase. In the same section as the
definition of âserious drug offense,â it prohibited individuals from traveling interstate to buy a
gun âwith the intent to engage in conduct whichâ âviolates any State law relating to any
controlled substance[.]â 18 U.S.C. § 924(g)(3); see also
id. § 924(k)(2). It also defined âfelony
drug offenseâ (another phrase used to increase sentences, see, e.g.,
21 U.S.C. § 841(b)(1)(C)) to
mean âan offense . . . under any law of . . . a State . . . that prohibits or restricts conduct relating
toâ various drugs.
21 U.S.C. § 802(44); see United States v. Spikes,
158 F.3d 913, 932 (6th Cir.
1998).
Perhaps most tellingly, the very Act that codified the âserious drug offenseâ definition
evinces a clear distinction between ârelating toâ and âinvolving.â For one thing, this Act
elsewhere imposed stiffer sentences for individuals who had prior felony convictions under a
âlaw of a State . . . relating to narcotic drugs[.]â Anti-Drug Abuse Act of 1986, Pub. L. No. 99-
570, § 1002, 100 Stat. 3207, 3207-3 to 3207-4 (emphasis added). (Congress has since amended
this provision. See
21 U.S.C. § 841(b)(1)(A), (B).) If Congress did not intend different
meanings, why would it use ârelating toâ in some places yet switch to âinvolvingâ for the
âserious drug offenseâ definition? Cf. Russello v. United States,
464 U.S. 16, 23 (1983).
For another thing, the Act uses âinvolveâ or âinvolvingâ elsewhere to mean âinclude,â
not ârelate to.â The unconstitutional âresidual clauseâ in the nearby âviolent felonyâ definition
covers a crime that âotherwise involves conduct that presents a serious potential risk of physical
injury to another.â § 1402(b), 100 Stat. at 3207-40 (codified at 18 U.S.C. § 924(e)(2)(B)(ii)),
declared unconstitutional by Johnson v. United States,
576 U.S. 591, 606 (2015). Similarly, the
Act adopted a staggered sentencing scheme that ties an offenseâs sentence to the quantity of
drugs involved. So, for example, an offense âinvolvingâ â1 kilogram or moreâ of heroin calls for
a 10-year minimum sentence. § 1002, 100 Stat. at 3207-2 (codified as amended at
21 U.S.C.
§ 841(b)(1)(A)). Just as these other uses of the word âinvolveâ require an offense to include (not
No. 20-5521 United States v. Fields Page 45
be related to) certain dangerous conduct or drug amounts, so too the definition of âserious drug
offenseâ requires a state offense to include (not be related to) manufacturing, distributing, or
possessing with the intent to manufacture or distribute.
That said, I readily acknowledge that Congress could have used language requiring an
even closer connection between a state drug offense and the manufacture or distribution of drugs.
The Act, for example, imposed harsher sentences for an offense that âis burglaryâ or that âhas as
an elementâ the use of force. § 1402(b), 100 Stat. at 3207-40 (codified at 18 U.S.C.
§ 924(e)(2)(B)(i)â(ii)) (emphases added). As the First Circuit noted, the verb âinvolveâ covers
more conduct than these more precise words. McKenney,
450 F.3d at 43. For example, the
offense of wearing body armor while distributing drugs might not âbeâ the offense of drug
distribution, but it still could qualify as a serious drug offense because it necessarily entails
(âinvolvesâ) that distribution. Cf. United States v. Gibbs,
656 F.3d 180, 187â89 (3d Cir. 2011).
And even if a crime does not have drug manufacturing as a âformal element[],â it could still
qualify as a serious drug offense if that conduct must occur whenever anybody commits the
crime. Kawashima, 565 U.S. at 483â84; cf. Borden,
141 S. Ct. at 1822 (plurality opinion). But I
fail to see why these other phrases help answer whether âinvolveâ should mean ârelate toâ or
ânecessarily entail.â Just because âinvolveâ has a broader reach than âisâ does not make it as
expansive as ârelate to.â
Lastly, even if the reader is still not convinced, remember that we are interpreting a
criminal statute. The rule of lenity thus applies when choosing between these differing
definitions of the word âinvolve.â See Jones v. United States, 529 U.S. 848, 858 (2000); cf.
Shular, 140 S. Ct. at 787â89 (Kavanaugh, J., concurring). I would think that I have said enough
to show that the statute at least remains ambiguous after exhausting all of the traditional tools of
interpretation. This potential tie breaker thus points in the direction of the narrow definition too.
âŚ
To sum up, I am hesitant to depart from a published precedent like Eason and from the
current approach in many other courts based on Supreme Court reasoning that the Court may
later treat as dicta. At the same time, I do think Shular allows us to reexamine Easonâs
No. 20-5521 United States v. Fields Page 46
definition, especially considering that the federal government has not defended that definition
here. And, perhaps most notably, the statutory context and structure lead me to conclude that
Shularâs narrow reading of âinvolvingâ best fits the statutory definition of âserious drug
offense.â For these reasons, along with those in Judge Whiteâs majority opinion, I concur.
No. 20-5521 United States v. Fields Page 47
_____________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
_____________________________________________________
ROGERS, Circuit Judge, concurring and dissenting in part. I concur in all but Part IV.A
of the majority opinion. The published holding of this court in United States v. Eason, 919 F.3d
385 (6th Cir. 2019), flatly precludes the adoption of a ânecessarily requiresâ standard, and
incidental language in a Supreme Court opinion resolving a very different issue is not sufficient
to overrule our precedent. While such language might be relevant or even persuasive in the
absence of binding published precedent of our court, or in arguments for en banc review or
certiorari to the Supreme Court, it is not sufficient to overrule our precedent.
We are required to follow the clear holding in Eason notwithstanding Shular v. United
States, 140 S. Ct. 779 (2020). Formally speaking, any language in Shular appearing to adopt the
ânecessarily requiresâ standard is, at most, dictum rather than holding. See
id. at 784-86. More
importantly, though, a careful reading of the Shular opinion does not reflect that the Court even
adopted that standard.
First, the issue in Shular was whether, as the offender argued, finding a âserious drug
offenseâ required a generic-offense analysis. The Shular Court ruled in favor of the government
on this issue, and certainly would have done the same thing if it had assumed a more generous
reading of âinvolvesâ than the ânecessarily entailâ standard. Accordingly, the ânecessarily
entailâ standard was simply not necessary to its affirmance of the court of appeals. Formally
speaking, in other words, any statement by the Court that âinvolvesâ cannot be broader than
ânecessarily entail,â to the detriment of the government, cannot be a holding in a case where the
government prevailed.
Second, a careful reading shows that Justice Ginsburg was not deciding the ânecessarily
entailâ issue, regardless of whether such a decision would have been dictum or holding. The
Court used the Kawashima case as an âexampleâ to show that the Court did not always require a
generic-offense analysis. See id. at 783 (citing Kawashima v. Holder,
565 U.S. 478 (2012)). In
describing the dispute before it, the Court described the Governmentâs view as that âa court
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should apply âthe Kawashima categorical approach,ââ which asks âwhether the state offenseâs
elements ânecessarily entail one of the types of conductâ identified in § 924(e)(2)(A)(ii).â Id. at
784 (emphasis in original).
But the Court went on in the next paragraph to describe the two positions more crisply as
follows:
This methodological dispute is occasioned by an interpretive disagreement over
§ 924(e)(2)(A)(ii)âs reference to âmanufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance.â Those terms, in the
Governmentâs view, describe conduct a court can compare directly against the
state crimeâs elements. Shular sees them instead as offenses whose elements a
court must first expound.
Id. at 785. This description is the one that immediately precedes the Courtâs statement that â[t]he
Governmentâs reading, we are convinced, correctly interprets the statutory text and context.â Id.
In the following sentence, the Court concluded that § 924(e)(2)(A)(ii) ârefers to conduct.â Id. In
other words, the statement that the Governmentâs reading âcorrectly interprets the statutory text
and contextâ refers to the Courtâs holding that the statute requires a conduct-focused, rather than
a generic-offense, approach. The âcorrectly interpretsâ statement thus cannot be read to apply to
the ânecessarily entailâ language without simply disregarding the intervening paragraph that the
Court was obviously referring to.
The subsequent paragraphs confirm this. The Courtâs primary argument was that words
like âmanufacturingâ and âdistributingâ were unlikely names for generic offenses. This
argument says nothing about the meaning of âinvolves.â The Courtâs second argument was that
the word âinvolvingâ âsuggests that the descriptive terms immediately following the word . . .
identify conduct.â Id. The Court reasoned that in contrast, the use of the word âisâ instead of
âinvolvingâ would have been used to refer to crimes. In making this argument, the Court did say
the â[t]he parties agree that âinvolveâ means ânecessarily require[d],ââ id., but this was only to
support the idea that the words addressed conduct. It is true that the fact that the parties agreed
does not by itself make a statement dictum, but in the context of this case it certainly shows that
the language used by the Court was not meant to reject an argument (that âinvolveâ means more
than ânecessarily requiresâ) when that was not an argument before it.
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So what we have is a clear holding in a published opinion of our court that adopts a broad
interpretation of âinvolvingâ in the statute, and an intervening opinion of the Supreme Court that
does not hold, or even decide, or even make an analysis that could be used to support, the
contrary. We are bound to follow our precedent, no matter how thoughtful the arguments for
coming to a different conclusion are, in the absence of en banc review or an intervening Supreme
Court decision adopting a different rule.
I do not address subparts 2-4 of Part IV.A of the majorityâs opinion, which proceed to
apply the ânecessarily entailâ test. The majority appears to accept that affirmance would be
required on this issue if the Eason test instead were applied.
