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.
PETITION FOR REHEARING EN BANC AND REPLY:
Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant.
RESPONSE IN OPPOSITION:
A. McLaurin, William A. Roach, Jr., UNITED STATES
ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.
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.
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.
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). 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objection because an unpublished case of this circuit,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.
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