ORDER DENYING DEFENDANT'S MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255 (ECF #73) AND GRANTING A LIMITED CERTIFICATE OF APPEALABILITY

MATTHEW F. LEITMAN, District Judge.

Defendant Erric Watkins has moved under 28 U.S.C. § 2255 to vacate the sentence imposed upon him in this criminal case. (See Mot. to Vacate, ECF #73.) For the reasons explained below, Watkins' motion is DENIED, but the Court GRANTS a LIMITED CERTIFICATE OF APPEALABILITY.

I

On January 23, 2014, a grand jury indicted Watkins on multiple drug and firearms charges. (See Indictment, ECF #7.) On October 8, 2015, Watkins entered into a Rule 11 Plea Agreement under which he agreed to plead guilty to Count Four of the Indictment. (See Plea Agreement, ECF #65 at Pg. ID 530.) That count charged Watkins with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (See Indictment, ECF #7 at Pg. ID 18.) Count Four further alleged that Watkins was subject to enhanced penalties under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (the "ACCA"), because he had previously been convicted of three or more "serious drug offenses."1 (Id.)

After some preliminary proceedings, Watkins decided to enter a guilty plea pursuant to a Rule 11 Plea Agreement. In Watkins' Plea Agreement, he admitted that he had "at least three prior felony convictions that are serious drug offenses or crimes of violence, under the [ACCA]." (Plea Agreement, ECF #65 at Pg. ID 531.) These ACCA predicate offenses were "listed on the [] worksheets" attached to the Plea Agreement. (Id.) On October 8, 2015, Watkins appeared before the Court and entered a guilty plea pursuant to his Rule 11 Plea Agreement.

Prior to sentencing, the Probation Department prepared a presentence investigation report (the "PIR"). The PIR confirmed that, as Watkins acknowledged in the Plea Agreement, he had been convicted of three prior "serious drug offenses" and was thus subject to an enhanced sentence under the ACCA. (See PIR at ¶11.) The PIR identified the ACCA predicate offenses as:

Watkins did not file any objections to the PIR. (See id. at A-1.)

Prior to sentencing, Watkins filed a Sentencing Memorandum with the Court. (See Watkins Sentencing Memorandum, ECF #71.) On the first page of that filing, Watkins acknowledged that "he [was] subject to a mandatory fifteen year minimum sentence under 18 U.S.C. § 924(e)." (Id. at Pg. ID 573.)

Watkins appeared before the Court for sentencing on May 26, 2016. During the sentencing proceedings, he did not object to the determination in the PIR that he was subject to an enhanced sentence under the ACCA because he had three prior "serious drug offenses."

The Court ultimately adopted the PIR as written and concluded that Watkins had been convicted of the three prior "serious drug offenses" identified in the PIR. The Court sentenced Watkins to 180 months in custody — the mandatory minimum required by the ACCA. Watkins did not appeal his conviction or sentence.

Watkins has now moved for relief from his sentence under 28 U.S.C. § 2255. (See Mot. to Vacate, ECF #73.) He seeks relief on two grounds: first, that his prior convictions did not qualify as "serious drug offenses" under the ACCA, and, second, that his attorney was ineffective for failing to object to the Court's decision to treat the prior offenses as "serious drug offenses." The Government opposes Watkins' motion. (See Government Resp. Br., ECF #77.)

II

Watkins is not entitled to relief on either ground advanced in his motion because the fundamental premise underlying each ground — that his prior convictions cannot be treated as "serious drug offenses" — is wrong.2

A

In order to determine whether a prior conviction qualifies as a "serious drug offense" under the ACCA, courts generally apply the "categorical approach." See Mathis v. United States, 136 S.Ct. 2243, 2248-49 (2016). The Sixth Circuit has described the analysis under that approach as follows:

United States v. Quarles, 850 F.3d 836, 838 (6th Cir. 2017) (internal punctuation and citations omitted).

Watkins urges the Court to apply the categorical approach here. He argues at great length that he is entitled to relief under that approach because (1) all of his prior convictions involved violations of Mich. Comp. Laws § 333.7401 and (2) that statute "covers more conduct than the generic drug offense defined in 18 USC § 924(e)(2)(A)(ii)." (Mot. to Vacate, ECF #73 at Pg. ID 615.)

But the categorical approach does not apply to Watkins' prior convictions. That approach does not control "where the statute [underlying the prior] conviction is `divisible.'" United States v. House, 872 F.3d 748, 753 (6th Cir. 2017) (quoting Descamps v. United States, 133 S.Ct. 2276, 2284 (2013)). And Mich. Comp. Laws § 333.7401 "is divisible." Id. at 753. Thus, the categorical approach is inapplicable here, and Watkins is not entitled to relief based on that approach.

B

Because Mich. Comp. Laws § 333.7401 is divisible, the Court must apply the "modified categorical approach" to determine whether Watkins' prior convictions under that statute qualify as ACCA predicate offenses. Id. (quoting Descamps, 133 S.Ct. at 2284). The modified categorical approach "entails sorting through the alternative elements to determine whether any of them `matches an element in the generic offense,' and if one does, `consult[ing] a limited class of documents . . . to determine which alternative formed the basis of the defendant's prior conviction.'" Id. (quoting Descamps, 133 S.Ct. at 2281).

In Watkins' original motion, he offered no arguments under the "modified categorical approach." However, Watkins addressed that approach in his reply. (See Watkins Reply, ECF #83.) There, Watkins argued that "if the modified categorical approach is used, the court will have to compare the definition of `deliver' [as used in Mich. Comp. Laws § 333.7401] to the definition of `serious drug offense' as it is defined under the ACCA statute." (Id. at Pg. ID 689-94.) Watkins insisted that "the court will find that the delivery definition [under Mich. Comp. Laws § 333.7401] is broader" than the federal definition of "delivery" of controlled substances because the Michigan definition includes an "attempted transfer," and the federal definition does not. (Id. at Pg. ID 690.) Watkins also argued that the Michigan definition is broader because it "encompasses delivery of prescription forms as well as controlled substances." (Id.) Watkins asserted that in light of these differences, his prior Michigan convictions for delivery of controlled substances should not have been counted as ACCA predicates under the "modified categorical approach." The Court disagrees.

The fact that a "delivery" of controlled substances under Michigan law may include an attempt to deliver does not render the Michigan definition of "delivery" broader than the generic definition of "delivery" of controlled substances. The generic definition "is found by surveying how the crime is described across jurisdictions, as well as consulting sources such as the Model Penal Code." United States v. Rede-Mendez, 680 F.3d 552, 556 (6th Cir. 2012). The Model Penal Code does not define a "delivery" of controlled substances, but most jurisdictions define the offense — as Michigan does — to include an attempted delivery. For instance, under the federal Controlled Substances Act, a "delivery" is "the actual, constructive, or attempted transfer of a controlled substance. . . ." 21 U.S.C. § 802(8) (emphasis added). Likewise, as set forth in the note below, numerous state laws define "delivery" of controlled substances to include an attempted delivery.3 Watkins has not directed the Court to a single definition of "delivery" under the law of any jurisdiction that excludes attempted deliveries. Thus, the Court concludes that the generic definition of "delivery" of controlled substances and "the definition[] of `delivery'" under Mich. Comp. Laws § 333.7401 "are materially identical." Williams v. United States, 2017 WL 4675362, at *4 (E.D. Mich. 2017) (rejecting argument under modified categorical approach that a prior delivery conviction under Mich. Comp. Laws § 333.7401 should not have counted as a "controlled substance offense" under § 4B1.2 of the United States Sentencing Guidelines because a generic delivery under federal law does not include an attempt to deliver); Gonzalez v. United States, 2017 WL 2874739 (E.D. Mich. 2017) (same). Accordingly, Watkins is not entitled to relief under the "modified categorical approach" on the ground that the elements of his Michigan delivery convictions were broader than the elements of the generic federal delivery offense.

Watkins counters that when the ACCA definitions of "serious drug offense" and "violent felony" are read together, it becomes clear that a "serious drug offense" cannot include an attempted delivery. (See Watkins Reply, ECF #83 at Pg. ID 692.) Watkins notes that the definition of "violent felony" includes a specific reference to crimes that have as an element the "attempted use" of force, 18 U.S.C. 924(e)(2)(B)(1), and Watkins highlights that the definition of "serious drug offense" does not contain a single reference to an "attempt." Watkins concludes that the inclusion of attempt in the definition of "violent felony" and omission of attempt from "serious drug offense" demonstrates that Congress did not intend "serious drug offenses" to include attempt offenses. (Id. (citing Russello v. United States, 464 U.S. 16, 23 (1983).)

This is a serious argument, and Watkins' reliance on the Russello canon of statutory construction is not unreasonable. However, "Russello does not provide a dispositive canon. Even at its strongest, Russello provides a single canon, a subset of a single tool of statutory interpretation, which may be displaced by other tools." Grant Trunk W. R.R. Co. v. United States Dep't of Labor, 875 F.3d 821, 825 (6th Cir. 2017). The Court concludes that the Russello canon is not strong enough to overcome the strong evidence — set forth above in the survey of federal and state law — that the generic offense of delivery of controlled substances includes an attempted delivery and that Congress intended an attempted drug delivery (with a sufficient minimum sentence) to qualify as an ACCA predicate offense.4

Finally, it is no help to Watkins that a "delivery" under Michigan law may include delivery of a prescription form. The judgments of conviction entered against Watkins demonstrate that he was convicted of delivering actual controlled substances, not delivering prescription forms.5 The judgments make clear that Watkins was not convicted of a delivery offense that exceeds the scope of a generic drug "delivery." Therefore, Watkins has not shown an entitlement to relief under the "modified categorical approach."

Finally, because Watkins is not entitled to relief under either the categorical approach or the modified categorical approach, Watkins' attorney was not ineffective for failing to object to the Court's decision to treat Watkins' prior offenses as "serious drug offenses." The objection would have been overruled, and a defense attorney's failure to make a futile objection does not amount to ineffective assistance. See United States v. Steverson, 230 F.3d 221, 225 (6th Cir. 2000).

III

The Court grants Watkins a certificate of appealability under 28 U.S.C. § 2253(c)(1) limited to the question of whether his counsel was ineffective for failing to object to the Court's treatment of those offenses as ACCA predicate offenses. Allowing Watkins to appeal on that issue is appropriate under § 2253(c)(1) because (1) reasonable jurists could debate whether the Court properly rejected the premise of that claim — i.e., that Watkins' prior convictions should not have been treated as ACCA predicates — and (2) the issues that are intertwined with the claim — especially Watkins' arguments concerning the Russello canon and its applicability here — deserve encouragement to proceed further. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). And limiting the certificate of appealability to Watkins' ineffective assistance claim is appropriate because that is the sole constitutional claim raised in his motion. See 28 U.S.C. § 2253(c)(2) (providing that a certificate of appealability may issue only upon "a substantial showing of the denial of a constitutional right"); Medellin v. Dretke, 544 U.S. 660, 666 (2005) ("A certificate of appealability may be granted only where there is a substantial showing of the denial of a constitutional right.") (emphasis in original) (quotations omitted).

IV

For the reasons explained above, IT IS HEREBY ORDERED that Watkins' motion to vacate his sentence (ECF #73) is DENIED and a LIMITED CERTIFICATE OF APPEALABILITY is GRANTED.

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