United States v. Jeffery Havis

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0117p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

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> No. 17-5772

v. │

│

│

JEFFERY HAVIS, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Eastern District of Tennessee of Chattanooga.

No. 1:16-cr-00121-1—Travis R. McDonough, District Judge.

Decided and Filed: June 6, 2019

BEFORE: COLE, Chief Judge; DAUGHTREY, MOORE, CLAY, GIBBONS, SUTTON,

GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN,

NALBANDIAN, READLER and MURPHY, Circuit Judges.

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COUNSEL

ON PETITION FOR REHEARING EN BANC AND REPLY: Jennifer Niles Coffin,

FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee,

for Appellant. ON RESPONSE IN OPPOSITION: Luke A. McLaurin, William A. Roach, Jr.,

UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF:

Caleb Kruckenberg, NEW CIVIL LIBERTIES ALLIANCE, Washington, D.C., for Amicus

Curiae.

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OPINION

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PER CURIAM. Although it is neither a legislature nor a court, the United States

Sentencing Commission plays a major role in criminal sentencing. But Congress has placed

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careful limits on the way the Commission exercises that power. Jeffery Havis argues that the

Commission stepped beyond those limits here and, as a result, he deserves to be resentenced.

We agree and REVERSE the decision of the district court.

I. BACKGROUND

In 2017, Havis pled guilty to being a felon in possession of a firearm. See 18 U.S.C.

§ 922(g)(1). Under the Sentencing Guidelines, a person convicted under § 922(g)(1) starts with

a base offense level of 14; but that level increases to 20 if the defendant has a prior conviction

for a “controlled substance offense.” See USSG §§ 2K2.1(a)(4), (a)(6). At sentencing, the

district court decided that Havis’s 17-year-old Tennessee conviction for selling and/or delivering

cocaine was a controlled substance offense under the Guidelines. Havis objected because the

Tennessee statute at issue criminalizes both the “sale” and “delivery” of cocaine, and his

charging documents did not specify whether his conviction was for sale, delivery, or both. See

Tenn. Code Ann. § 39-17-417(a)(2)–(3). Under Tennessee law, “delivery” of drugs means “the

actual, constructive, or attempted transfer from one person to another of a controlled substance.”

Id. § 39-17-402(6) (emphasis added). Havis therefore argued that his Tennessee conviction was

not a controlled substance offense because it encompassed the mere attempt to sell cocaine, and

the Guidelines’ definition of “controlled substance offense” does not include attempt crimes. See

USSG § 4B1.2(b).1 The district court overruled Havis’s objection because an unpublished case

of this circuit, United States v. Alexander, held that any violation of § 39-17-417 is a controlled

substance offense. 686 F. App’x 326, 327–28 (6th Cir. 2017) (per curiam). In combination with

other adjustments, that left Havis with a Guidelines range of 46 to 57 months. The district court

sentenced him to 46 months, and he appealed.

1A “controlled substance offense” under § 4B1.2(b) 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.

No. 17-5772 United States v. Havis Page 3

A panel of this court affirmed Havis’s sentence for one reason: our decision in United

States v. Evans held that the definition of “controlled substance offense” in § 4B1.2(b) includes

attempt crimes. United States v. Havis, 907 F.3d 439, 442 (6th Cir. 2018) (citing United States v.

Evans, 699 F.3d 858, 866–67 (6th Cir. 2012)). The Evans court relied on the Sentencing

Commission’s commentary to § 4B1.2(b), which states that a controlled substance offense

“includes ‘the offenses of aiding and abetting, conspiring, and attempting to commit such

offenses.’” Id. at 866 (quoting USSG § 4B1.2(b) comment (n.1)). But Havis objects to this

commentary on a ground never raised by the parties in Evans: he argues that the Guidelines’ text

says nothing about attempt, and the Sentencing Commission has no power to add attempt crimes

to the list of offenses in § 4B1.2(b) through commentary. We granted en banc review to address

that narrow claim.2

II. ANALYSIS

A. Legal Framework

Whether a prior conviction counts as a predicate offense under the Guidelines is a

question of law subject to de novo review. United States v. Wynn, 579 F.3d 567, 570 (6th Cir.

2009). Employing the categorical approach, we do not consider the actual conduct that led to

Havis’s conviction under the Tennessee statute at issue; instead, we look to the least of the acts

criminalized by the elements of that statute. Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013).

If the least culpable conduct falls within the Guidelines’ definition of “controlled substance

offense,” then the statute categorically qualifies as a controlled substance offense. But if the

least culpable conduct falls outside that definition, then the statute is too broad to qualify, and the

district court erred by increasing Havis’s offense level.

The parties agree that the least culpable conduct covered by § 39-17-417 is the attempted

delivery of a controlled substance. See Tenn. Code Ann. § 39-17-402(6). The question before

the court, then, is whether the definition of “controlled substance offense” in § 4B1.2(b) includes

attempt crimes. The Sentencing Commission said it does in the commentary to § 4B1.2(b). See

2The panel decision addressed (and rejected) a number of alternative grounds for finding that Havis’s

Tennessee conviction did not qualify as a controlled substance offense. See Havis, 907 F.3d at 444–47. Havis does

not revisit those claims in his en banc petition.

No. 17-5772 United States v. Havis Page 4

USSG § 4B1.2(b) comment (n.1). But the plain language of § 4B1.2(b) says nothing about

attempt crimes. On appeal, Havis maintains that we must look to the actual text of Guideline

§ 4B1.2(b). The Government asks us to defer to the Commission’s commentary.

B. Role of the Sentencing Commission

To decide which construction of § 4B1.2(b) prevails, we begin with the Sentencing

Commission and its role in our constitutional system. Congress created the Commission as an

independent body “charged [] with the task of establish[ing] sentencing policies and practices for

the Federal criminal justice system.” Stinson v. United States, 508 U.S. 36, 40–41 (1993)

(citation and internal quotation marks omitted). The Commission fulfills its purpose by issuing

the Guidelines, which provide direction to judges about the type and length of sentences to

impose in a given case. Id. at 41. Although judges have some discretion to deviate from the

Guidelines’ recommendations, our procedural rules “nevertheless impose a series of

requirements on sentencing courts that cabin the exercise of that discretion.” Peugh v. United

States, 569 U.S. 530, 543 (2013). A judge cannot stray from a defendant’s Guidelines range, for

example, without first giving an adequate explanation for the variance. See id. The Commission

thus exercises a sizable piece “of the ultimate governmental power, short of capital

punishment”—the power to take away someone’s liberty. United States v. Winstead, 890 F.3d

1082, 1092 (D.C. Cir. 2018) (citation omitted).

That power is ordinarily left to two branches of government—first to the legislature,

which creates a range of statutory penalties for each federal crime, and then to judges, who

sentence defendants within the statutory framework. But the Commission falls squarely in

neither the legislative nor the judicial branch; rather, it is “an unusual hybrid in structure and

authority,” entailing elements of both quasi-legislative and quasi-judicial power. Mistretta v.

United States, 488 U.S. 361, 412 (1989). In Mistretta, the Supreme Court explained how the

Commission functions in this dual role without disrupting the balance of authority in our

constitutional structure. Although the Commission is nominally a part of the judicial branch, it

remains “fully accountable to Congress,” which reviews each guideline before it takes effect. Id.

at 393–94; see also 28 U.S.C. § 994(p). The rulemaking of the Commission, moreover, “is

subject to the notice and comment requirements of the Administrative Procedure Act.” Id. at

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394; see also 28 U.S.C. § 994(x). These two constraints—congressional review and notice and

comment—stand to safeguard the Commission from uniting legislative and judicial authority in

violation of the separation of powers.

Unlike the Guidelines themselves, however, commentary to the Guidelines never passes

through the gauntlets of congressional review or notice and comment. That is also not a

problem, the Supreme Court tells us, because commentary has no independent legal force—it

serves only to interpret the Guidelines’ text, not to replace or modify it. See Stinson, 508 U.S. at

44–46; see also United States v. Rollins, 836 F.3d 737, 742 (7th Cir. 2016) (en banc) (“[T]he

application notes are interpretations of, not additions to, the Guidelines themselves . . . .”).

Commentary binds courts only “if the guideline which the commentary interprets will bear the

construction.” Stinson, 508 U.S. at 46. Thus, we need not accept an interpretation that is

“plainly erroneous or inconsistent with the” corresponding guideline. Id. at 45 (citation omitted).

C. Defining “Controlled Substance Offense”

The Government urges us to find that the commentary at issue here—Application Note 1

to § 4B1.2, which adds attempt crimes to the list of controlled substance offenses under

§ 4B1.2(b)—is not a “plainly erroneous” interpretation of the corresponding guideline. 3 But the

Government sidesteps a threshold question: is this really an “interpretation” at all? The guideline

expressly names the crimes that qualify as controlled substance offenses under § 2K2.1(a)(4);

none are attempt crimes. And the Commission knows how to include attempt crimes when it

wants to—in subsection (a) of the same guideline, for example, the Commission defines “crime

of violence” as including offenses that have “as an element the use, attempted use, or threatened

use of physical force against the person of another.” USSG § 4B1.2(a) (emphasis added).

3The Government argues in the alternative that the real commentary at issue is Application Note 1 to

§ 2K2.1, which cross-references the definition of “controlled substance offense” in Application Note 1 to § 4B1.2.

The Government never made that argument in the district court or before the initial panel on appeal and arguably has

forfeited its right to do so now. At any rate, it makes no difference whether we begin with § 2K2.1 to determine the

meaning of “controlled substance offense.” The commentary to § 2K2.1 directs us to apply “the meaning given that

term in § 4B1.2(b) and Application Note 1 of the Commentary to § 4B1.2.” If anything, the Government’s proposed

definition—which would require us to defer to commentary on other commentary—would carry an even more

tenuous connection to the guideline’s text.

No. 17-5772 United States v. Havis Page 6

To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in

the guideline itself—no term in § 4B1.2(b) would bear that construction.4 Rather, the

Commission used Application Note 1 to add an offense not listed in the guideline. But

application notes are to be “interpretations of, not additions to, the Guidelines themselves.”

Rollins, 836 F.3d at 742. If that were not so, the institutional constraints that make the

Guidelines constitutional in the first place—congressional review and notice and comment—

would lose their meaning. See Winstead, 890 F.3d at 1092 (“If the Commission wishes to

expand the definition of ‘controlled substance offenses’ to include attempts, it may seek to

amend the language of the guidelines by submitting the change for congressional review.”). 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.

III. CONCLUSION

The Guidelines’ definition of “controlled substance offense” does not include attempt

crimes. Because the least culpable conduct covered by § 39-17-417 is attempted delivery of a

controlled substance, the district court erred by using Havis’s Tennessee conviction as a basis for

increasing his offense level. We therefore REVERSE the district court’s decision and

REMAND for further proceedings consistent with this opinion.

4The Government also suggests that the use of the term “prohibits” in § 4B1.2(b) expands the scope of the

guideline to cover attempt crimes. Once again, the Government never made this argument in the district court or

before the initial panel on appeal. Regardless, the guideline’s boilerplate use of the term “prohibits” simply states

the obvious: criminal statutes proscribe conduct. See, e.g., Connally v. Gen. Constr. Co., 269 U.S. 385, 393 (1926)

(“Penal statutes prohibit[] the doing of certain things, and provid[e] a punishment for their violation . . . .”).

That does not help the Government.