Whether solicitation can by itself constitute an 'attempt' within the meaning of the Controlled Substances Act

QUESTION PRESENTED The Controlled Substances Act (CSA) makes it a crime to “distribute * * * a controlled substance.” 21 U.S.C. 841(a). The Act includes an “attempt” to distribute within the meaning of “distribute” (21 U.S.C. 802(8), (11)) and separately criminalizes “attempts” (21 U.S.C. 846). There is a deep and acknowledged conflict among the courts of appeals on the question whether solicitation—that is, a mere offer to buy or sell a controlled substance—can by itself constitute an “attempt” within the meaning of that language. The disagreement is impeding the uniform administration not only of the Controlled Substances Act, but also of other statutes that depend on the CSA’s proscriptions. The question whether solicitation constitutes an attempt under the CSA dictates, for example, whether a state drug offense that criminalizes solicitation categorically qualifies as a “serious drug offense” under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e)(2)(a)(ii). The same holds true for the determination under the Immigration and Nationality Act whether a state drug offense categorically qualifies as an “aggravated felony.” 8 U.S.C. 1101(a)(43)(B). The outcome of this case, which involves a criminal prosecution under the ACCA, turns cleanly on the answer to the question presented. The question presented is whether solicitation can by itself constitute an “attempt” within the meaning of the Controlled Substances Act.