United States v. Jeffery Havis, 927 F.3d 382

In 2017 Jeffery Havis pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
Under the Sentencing Guidelines, a prior "controlled substance offense" raises the base offense level from 14 to 20; the district court determined a 17‑year‑old Tennessee conviction for selling/delivering cocaine qualified.
Tennessee's statutory definition of "delivery" includes "attempted transfer," so the least culpable conduct criminalized by the Tennessee statute is attempted delivery.
The Guidelines’ text defining "controlled substance offense" (§ 4B1.2(b)) does not mention attempts, but Application Note 1 to § 4B1.2 (commentary) states that the term includes attempts, aiding and abetting, and conspiracy.
A panel affirmed Havis’s sentence relying on United States v. Evans, which deferred to the Commission’s commentary to include attempts; Havis sought en banc review arguing the Commission exceeded its authority by adding attempts via commentary.
The en banc court held the commentary impermissibly added an offense not reflected in the guideline text; because the Tennessee statute criminalized attempt, the conviction did not categorically qualify as a "controlled substance offense."

Issue	Havis's Argument	Government's Argument	Held
Whether § 4B1.2(b) "controlled substance offense" includes attempt crimes	§4B1.2(b) text contains no attempt language; commentary cannot add offenses	Defer to Sentencing Commission commentary (Application Note 1) interpreting the term to include attempts	The guideline text controls; commentary added an offense and is not entitled to deference; attempts are not included
Whether the Tennessee conviction categorically qualifies under § 4B1.2(b)	Least culpable conduct (attempted delivery) falls outside the guideline definition, so conviction does not qualify	Conviction should qualify via the Commission’s commentary	Because attempts are excluded, the Tennessee statute is broader than the guideline; conviction does not qualify
Scope of commentary authority	Commentary may only interpret, not add to, guideline text; adding attempts circumvents congressional review/notice-and-comment	Commentary is interpretive guidance entitled to deference unless plainly erroneous	Application Note 1 crossed the line by adding offenses rather than interpreting text; no deference afforded
Remedy	Resentencing because prior conviction improperly used to increase offense level	Opposed	Reverse and remand for further proceedings consistent with opinion

Stinson v. United States, 508 U.S. 36 (describing limited binding effect of Sentencing Guidelines commentary)
Mistretta v. United States, 488 U.S. 361 (upholding Sentencing Commission structure and congressional review requirement)
Moncrieffe v. Holder, 569 U.S. 184 (categorical approach: look to least culpable conduct)
Peugh v. United States, 569 U.S. 530 (constraints on sentencing discretion and role of Guidelines)
United States v. Evans, 699 F.3d 858 (6th Cir.) (panel decision deferring to commentary to include attempts)
United States v. Rollins, 836 F.3d 737 (7th Cir.) (application notes are interpretations, not additions)
United States v. Winstead, 890 F.3d 1082 (D.C. Cir.) (noting constitutional importance of congressional review and limits on commentary)
Connally v. General Construction Co., 269 U.S. 385 (penal statutes "prohibit" conduct)