Attorney(s) appearing for the Case
United States of America, Plaintiff, represented by Margaret M. Smith , United States Attorney's Office & Andrew Yahkind , U.S. Department of Justice.
ORDER FOR SUPPLEMENTAL BRIEFING
MATTHEW F. LEITMAN, District Judge.
On February 22, 2017, Defendant Erric Watkins filed a motion under 28 U.S.C. § 2255 in which he seeks relief from his sentence. (See ECF #73.) In the motion, Watkins argues that the Court wrongly sentenced him as an armed career criminal after it erroneously determined that certain of his prior convictions constituted "serious drug offenses" under 18 U.S.C. § 924(e)(2)(a)(ii). Watkins filed a brief in support of the motion (see ECF #73); the Government responded (see ECF #77); and Watkins has filed a "rebuttal" (see ECF #83). Upon review of these filings, the Court has determined that it would benefit from additional briefing. Accordingly, the Court orders the Government to file a supplemental brief addressing the following issues:
1. The Government relies on the decisions in United States v. Solomon, 592 Fed. App'x 359 (6th Cir. 2014) and United States v. Tibbs, 2017 WL 1314933 (6th Cir. Apr. 10, 2017). The Sixth Circuit subsequently adopted the analysis of Tibbs in United States v. House, __ F.3d __, 2017 WL 2569706 (6th Cir. June 14, 2017). In all three of these decisions, the Sixth Circuit addressed whether a prior conviction under M.C.L. 333.7401 et seq. qualified as a "controlled substance offense" under the United States Sentencing Guidelines. What controlling (or other) authority supports the proposition that the analysis of that issue under the Sentencing Guidelines is applicable to the analysis of whether a conviction under the Michigan statute qualifies as a "serious drug offense" under 18 U.S.C. § 924(e)(2)(a)(ii)?
2. Watkins argues that the scope of a "delivery" under M.C.L. § 333.7401 et seq. is broader than the scope of a "delivery" under the Armed Career Criminal Act because under the Michigan statute, a "delivery" includes an attempted delivery. (See pages 5-8 of Watkins' Reply, ECF #83 at Pg. ID 689-92.) Is Watkins correct that the scope of a "delivery" differs under the relevant Michigan and federal statutes? If he is correct, does the difference in scope preclude the Court from treating any of Watkins' prior convictions as "serious drug offenses" under 18 U.S.C. § 924(e)(2)(a)(ii)?
3. If the Court applies the modified categorical approach, what sources and/or documents in the record may the Court consult in order to determine precisely the crimes for which Watkins was previously convicted?
The Government shall file its brief addressing these issues (and any other issues raised in Watkins' rebuttal that the Government wishes to address) by August 3, 2017. Watkins may respond to the government's supplemental brief by August 24, 2017.
IT IS SO ORDERED.
I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record of July 13, 2017, by electronic means and/or ordinary mail.
s/Holly A. Monda