United States v. Havis
929 F.3d 317
6th Cir.2019Background
- Jeffery Havis pleaded guilty to being a felon in possession of a firearm; the district court applied a Guidelines enhancement based on a prior Tennessee conviction for selling or delivering drugs (Tenn. Code Ann. § 39-17-417).
- Tennessee law defines "delivery" to include an "attempted transfer," while the Guidelines define a "controlled substance offense" by reference to verbs like "distribution" and only in commentary mention that attempts count.
- The panel majority initially agreed Havis’s Tennessee conviction was overbroad under the categorical approach, but circuit precedent required affirmance; a dissent would have granted relief.
- The en banc Sixth Circuit reversed, holding the Sentencing Commission cannot use commentary to expand the Guidelines’ text to include legal attempt offenses; the decision followed the D.C. and Seventh Circuit reasoning and was unanimous.
- The government, in a late-filed en banc-reconsideration motion, argued for the first time that the word "distribution" in the Guidelines’ text should encompass ordinary-language attempts and thus include Tennessee delivery convictions.
- Judge Sutton concurs in denying reconsideration, explaining the distinction between completed offenses and legal attempt offenses, noting Tennessee law mirrors federal law (both define delivery to include "attempted transfer") and flagging an unaddressed argument that completed Tennessee delivery convictions likely still qualify under the Guidelines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Guidelines commentary may add legal attempt offenses to the definition of "controlled substance offense" | Havis: Commentary cannot expand the text; Tennessee "delivery" (including "attempted transfer") is broader than Guidelines text | Government: "Distribution" in Guidelines text should cover attempts, so commentary merely clarifies text | The Sentencing Commission cannot use commentary to add legal attempt offenses; commentary cannot expand text (en banc Havis upheld) |
| Whether a federal or Tennessee conviction for distribution/delivery that involves an "attempted transfer" counts as a Guidelines "controlled substance offense" | Havis: Tennessee delivery overbroad under categorical approach because it covers attempts | Government (late): Ordinary-language "attempted transfer" falls within "distribution," so such convictions qualify | Completed convictions under federal §841 or Tennessee delivery that use ordinary "attempted transfer" meaning can qualify; but separate statutory attempt convictions do not count because commentary cannot add legal attempts |
| Whether Tennessee's statutory structure changes analysis | Havis: (implicit) Tennessee delivery's inclusion of "attempted transfer" makes it overbroad | Government: (not raised earlier) Tennessee delivery should qualify because it mirrors federal definitions | Sutton: Tennessee mirrors federal law; a completed Tennessee delivery conviction likely qualifies, but courts cannot rely on commentary to import legal attempt crimes |
| Whether government’s new argument can be considered on reconsideration | Havis: N/A | Government: Raised new argument in motion for en banc reconsideration | Court: Too late to raise that argument in this motion; denial of reconsideration affirmed |
Key Cases Cited
- United States v. Havis, 907 F.3d 439 (6th Cir.) (panel decision referenced)
- United States v. Havis, 927 F.3d 382 (6th Cir. en banc) (holding Guidelines commentary may not add legal attempt offenses to text)
- United States v. Winstead, 890 F.3d 1082 (D.C. Cir.) (similar holding on commentary and attempts)
- United States v. Rollins, 836 F.3d 737 (7th Cir. en banc) (commentary binds only as interpretation, not addition)
- Costo v. United States, 904 F.2d 344 (6th Cir.) (distinguishing distribution convictions from statutory attempts)
- United States v. Daniels, 915 F.3d 148 (3d Cir.) (discussing Model Penal Code substantial-step attempt standard)
- United States v. Williams, 704 F.2d 315 (6th Cir.) (attempt liability principles)
- United States v. Walton, 56 F.3d 551 (4th Cir.) (holding §841 distribution counts as a controlled substance offense)
- United States v. Govan, 293 F.3d 1248 (11th Cir.) (same)
- United States v. Goldston, 906 F.3d 390 (6th Cir.) (Tennessee delivery matches federal distribution for ACCA purposes)