Whether an 'attempted transfer' of drugs, § 802(8), includes any conduct that would also constitute an 'attempted distribution' of drugs, § 846

QUESTION PRESENTED For certain recidivist guideline enhancements, “[t]he term ‘controlled substance offense’ means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). In the Fourth Circuit, § 4B1.2(b)’s textual definition includes only those substantive enumerated drug crimes, and consequently, excludes inchoate drug offenses. Accordingly, a conviction for attempted distribution does not qualify as a “controlled substance offense.” Most drug statutes, however—including the federal Controlled Substances Act (CSA”)—broadly define substantive drug distribution to also criminalize the “attempted transfer” of drugs, 21 U.S.C. §§ 802(8), 802(11)—a term that the CSA does not further define. Mr. Groves argued that his 2014 prior conviction for aiding and abetting his codefendant’s distribution of a Schedule I or II controlled substance, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), 18 U.S.C. § 2, was therefore overbroad. The Fourth Circuit held that “attempted transfer,” § 802(8), and “attempted distribution,” § 846, could not be interpreted to criminalize any of the same conduct, because to do so would violate the canon against surplusage and produce absurd results. The question presented in this case is one of statutory interpretation: Whether an “attempted transfer” of drugs, § 802(8), includes any conduct that would also constitute an “attempted distribution” of drugs, § 846. i