from the United States District Court for the Eastern
District of Tennessee at Chattanooga. No.
1:16-cr-00121-1-Travis R. McDonough, District Judge.
MOTION FOR EN BANC RECONSIDERATION AND REPLY:
A. BRENEMAN, UNITED STATES ATTORNEY'S OFFICE, KNOXVILLE,
TENNESSEE, FOR APPELLEE.
RESPONSE IN OPPOSITION:
JENNIFER NILES COFFIN, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., KNOXVILLE, TENNESSEE, FOR APPELLANT.
BEFORE: COLE, CHIEF JUDGE; DAUGHTREY, MOORE, CLAY, GIBBONS,
SUTTON, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR,
BUSH, LARSEN, NALBANDIAN, READLER AND MURPHY, CIRCUIT JUDGES.
CONSIDERATION of the government's motion for
reconsideration of the en banc court's opinion of June 6,
2019, AND FURTHER CONSIDERING the Defendant's response in
opposition and the government's reply, IT IS ORDERED that
the motion be, and it hereby is, DENIED.
SUTTON, Circuit Judge.
in the denial of en banc reconsideration. The government
raises an argument for the first time in its motion for en
banc reconsideration that warrants a few words in response
and that may imply a separate problem the parties did not
Havis pleaded guilty to being a felon in possession of a
firearm. Based on his prior Tennessee conviction for selling
or delivering drugs, see Tenn. Code Ann. §
39-17-417(a)(2), (3), the district court found that Havis had
a prior conviction for a controlled substance offense. The
court accordingly adjusted his base offense level under the
guidelines and sentenced him to 46 months in prison.
argued on appeal that his Tennessee conviction did not
qualify as a controlled substance offense because
"delivery" under Tennessee law covers more conduct
than the sentencing guidelines. He noted, more to the point,
that Tennessee defines delivery to include "attempted
transfer" of drugs. Tenn. Code Ann. § 39-17-402(6).
The guidelines meanwhile define a controlled substance
offense as one "that prohibits the manufacture, import,
export, distribution, or dispensing" of drugs (or
possessing drugs with intent to do the same). U.S.S.G. §
4B1.2(b); see id. § 2K2.1 cmt. n.1. Only in the
commentary do the guidelines say that attempting to
commit a controlled substance offense also qualifies.
Id. § 4B1.2 cmt. n.1. As Havis sees it, the
guidelines' commentary doesn't count, making
Tennessee delivery overbroad under the categorical approach.
panel majority agreed with Havis but held that a prior
decision of this court required it to affirm the longer
sentence anyway. United States v. Havis, 907 F.3d
439, 442-44 (6th Cir. 2018). The dissent would have granted
Havis relief because our earlier decision did not address
this issue. Id. at 452-53 (Daughtrey, J.,
granted en banc review and reversed, holding that the
sentencing commission could not expand the guidelines'
definition of a controlled substance offense to include
attempt offenses through commentary, as it did in this
instance. United States v. Havis, 927 F.3d 382,
386-87 (6th Cir. 2019) (en banc) (per curiam). In doing so,
we followed the lead of the D.C. Circuit, United States
v. Winstead, 890 F.3d 1082, 1092 (D.C. Cir. 2018), and
of the Seventh Circuit on the broader point that the
commentary to the guidelines binds courts only to the extent
it interprets a guidelines ...