United States v. Jeffery Havis
907 F.3d 439
6th Cir.2018Background
- Defendant Jeffery Havis pled guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
- At sentencing, the district court treated a 20-year-old Tennessee conviction for selling/delivering cocaine as a “controlled substance offense” under U.S.S.G. § 2K2.1(a)(4)(A), increasing Havis’s base offense level.
- Havis objected, arguing Tennessee’s delivery/attempt definitions are broader than the Guidelines’ definition of “controlled substance offense” (and that the Guidelines do not include attempts).
- The district court relied on Sixth Circuit precedent (United States v. Evans) treating the Sentencing Commission’s commentary as including attempts and offers to sell within the controlled-substance offense definition.
- The Sixth Circuit panel applied the categorical approach and, while recognizing separation-of-powers concerns about commentary that effectively amends the Guidelines, concluded it was bound by Evans and affirmed the sentence.
Issues
| Issue | Havis's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Tennessee drug delivery is a “controlled substance offense” under U.S.S.G. § 4B1.2 | Tennessee law criminalizes attempts/offers and administering in ways broader than the Guidelines, so it is overbroad | Evans and the Guidelines commentary include attempts/offers; Tennessee statutes match or do not realistically produce broader convictions | Delivering drugs under Tennessee law is a controlled substance offense under § 4B1.2 (affirmed) |
| Whether the Guidelines’ definition may lawfully be expanded to include attempts via commentary | Commentary cannot expand the Guidelines; Commission must use amendment/notice-and-comment | Stinson/Auer support deference to Commission commentary as authoritative interpretation | Court acknowledges constitutional/separation concerns but is bound by Evans; rejects Havis’s challenge on precedent grounds |
| Whether Tennessee’s “substantial step” attempt standard is broader than federal substantial-step test | Reeves’ “strongly corroborative” test is broader than federal law’s alleged “unequivocal” requirement, making Tennessee overbroad | No realistic probability shown that Tennessee prosecutes conduct federal law would not; defendant points to no Tennessee cases showing overbreadth | No realistic showing of overbreadth; categorical approach requires such a showing, so argument fails |
| Whether Tennessee delivery could encompass administering that is not “dispensing” under federal law | Delivery could include administering that federal law would not treat as dispensing, creating mismatch | Statutory text and practice do not demonstrate such broader prosecutorial application; no Tennessee cases cited showing that | Argument unpersuasive; no realistic probability shown, so claim fails |
Key Cases Cited
- United States v. Evans, 699 F.3d 858 (6th Cir. 2012) (held Guidelines commentary includes attempts within "controlled substance offense")
- Mistretta v. United States, 488 U.S. 361 (1989) (explains constitutional structure and limits on the Sentencing Commission)
- Stinson v. United States, 508 U.S. 36 (1993) (treats Sentencing Commission commentary as authoritative unless plainly erroneous or inconsistent)
- Auer v. Robbins, 519 U.S. 452 (1997) (courts defer to agencies’ interpretations of their own rules)
- United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018) (declined to permit the Commission to add attempts by commentary and urged amendment instead)
- United States v. Rollins, 836 F.3d 737 (7th Cir. 2016) (en banc) (recognized limits on commentary that functions as substantive change)
- Peugh v. United States, 569 U.S. 530 (2013) (discusses the continuing practical significance of the Guidelines)
- Booker v. United States, 543 U.S. 220 (2005) (rendered the Guidelines advisory)