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United States v. Havis

United States Court of Appeals, Sixth Circuit

July 12, 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 at Chattanooga. No. 1:16-cr-00121-1-Travis R. McDonough, District Judge.

         ON MOTION FOR EN BANC RECONSIDERATION AND REPLY:

          DEBRA A. BRENEMAN, UNITED STATES ATTORNEY'S OFFICE, KNOXVILLE, TENNESSEE, FOR APPELLEE.

         ON 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.

          ORDER

         UPON 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.

         CONCURRENCE

          SUTTON, Circuit Judge.

         concurring 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 address.

         Jeffery 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.

         Havis 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.

         The 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., dissenting).

         We 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 ...


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