Prior drug convictions don't count as "controlled substance offenses" under USSG § 4B1.2 if they are attempt convictions. The reason is simple. The guideline itself (approved by Congress) does not mention attempts.
But what about the commentary? Doesn't it say that the guideline includes attempts? True enough, but the commentary is not approved by Congress, and it may only interpret the guideline, not replace or modify it.
"The Commission’s use of commentary to
add attempt crimes to the definition of 'controlled substance offense' deserves
no deference. The text of § 4B1.2(b) controls, and it makes clear that attempt
crimes do not qualify as controlled substance offenses."
So says the Sixth Circuit, unanimously, en banc, in United States v. Havis, No. 15-5772, ___ F.3d ___, 2019 WL 2376070 (6th Cir. June 6, 2019).
The Tenth Circuit disagrees. United States v. Chavez, 660 F.3d 1215 (10th Cir. 2011). But with Havis, we have a deeper circuit split and fresh hope that the Supreme Court will take up the issue and eventually rule in our clients' favor.
Object to your client's prior attempt conviction serving as the basis for a guidelines sentencing enhancement and preserve this issue for review today. If you are in the Tenth Circuit, note the Tenth Circuit's contrary authority. But argue that Havis is better reasoned, and that you are preserving the issue for further review.