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United States v. Havis

United States Court of Appeals, Sixth Circuit

June 6, 2019

United States of America, Plaintiff-Appellee,
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.

         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.

          BEFORE: COLE, Chief Judge; DAUGHTREY, MOORE, CLAY, GIBBONS, SUTTON, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN, NALBANDIAN, READLER and MURPHY, Circuit Judges.

          OPINION

          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 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 Fed.Appx. 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.

         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. ...


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