The Sixth Circuit granted en banc review last week in United States v. Havis, a sentencing guidelines case. The panel decision, which was 2-1 for the government, unusually included concurring opinions by the two judges (Judge Thapar and Judge Stranch) that formed the panel majority.
The defendant in Havis was convicted on a 922(g) charge (felon in possession of a firearm). The district judge determined that a prior Tennessee conviction for selling or delivering cocaine qualified as a "controlled substance offense" under the Guidelines and accordingly increased his offense level and sentence.
Havis argued to the panel that the Tennessee drug conviction "does not match up with a controlled substance offense under the Guidelines because the former includes attempting to transfer drugs, while the Guidelines only include completed controlled substance offenses." This argument, however, was foreclosed by the Court's earlier decision in United States v. Evans, 699 F.3d 858, 866-67 (6th Cir. 2012), which relied on the expansive definition of "controlled substance offense" found in the Guidelines commentary to include "the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." U.S.S.G. sec. 4B1.2 cmt. n. 1. And so the panel majority concluded Evans controlled and foreclosed Havis' argument.
Judge Thapar's and Judge Stranch's concurring opinions offer intriguing prospects regarding the ultimate scope of the en banc decision. Both focused on the Supreme Court's decision in Auer v. Robbins, 519 U.S. 452 (1997), which allows deference to administrative agencies to interpret and enforce the statutes they are charged to administer, a principle relevant to the Sentencing Commission and Guidelines by way of Stinson v. United States, 508 U.S. 36 (1993). Both agreed that the Guidelines commentary had exceeded the Commission's proper authority by expanding the Guidelines' reach at least as they bear on Havis and his prior conviction.
There are other Guidelines sections where commentary similarly adds to the scope of the Guidelines text. U.S.S.G. sec. 2B1.1 deals principally with fraud cases and escalates the offense level based on the amount of "loss," which commentary states "loss is the greater of actual loss or intended loss." This appears to present the same type issue as in Havis, since an intended loss is a loss attempted to be caused but not actually caused.
Another example is U.S.S.G. sec. 2K2.1(b)(4)(A), which deals with firearm offenses and adds two levels if any firearm involved was "stolen." The commentary advises this enhancement applies "regardless of whether the defendant knew or had reason to believe that the firearm was stolen or had an altered or obliterated serial number." U.S.S.G. sec. 2K2.1 cmt. n. 8(B). The Guidelines' commentary abolition of a mens rea requirement distinguishes the enhancement from the federal
statute, 18 U.S.C. § 922(j), that prohibits possession of a stolen firearm and
also has an explicit mens rea requirement.
As such, it is contrary to the statutory directive in 28 U.S.C. § 994(a) that
the guidelines be “consistent with all pertinent provisions of any Federal
statute.”
Other examples abound in the guidelines; we'll see how if at all the en banc Sixth Circuit trims the reach generally of the Guidelines by limiting the use and application of expansive commentary.
The panel opinions in Havis are here.
Robert L. Abell
Lexington, Ky.
A blog by federal public defenders and criminal defense lawyers practicing in the Sixth Circuit.
Despite confessed error defendant not entitled to relief.
Jimmie White moved to dismiss the
indictment against him due to a speedy trial violation. The district court
denied the motion, relying on a joint stipulation to exclude a two-week period
of time that the parties were involved in plea negotiations and 18 U.S.C. §
3161(h)(7).
White appealed, arguing that the lower
court did not make the requisite findings for the time to be excluded under 18
U.S.C. § 3161(h)(7). The government argued that the court did make the
necessary findings, and, for the first time, that the two weeks spent in plea
negotiations was automatically excluded from the speedy trial clock under 18
U.S.C. § 3161(h)(1). The Sixth Circuit panel, relying on prior circuit
precedent, agreed.
White filed a writ of certiorari,
arguing that the Sixth Circuit’s decision – that time during plea negotiations
was automatically excluded under § 3161(h)(1) – was inconsistent with Bloate v. United States, 559 U.S. 196
(2010). “The government then changed horses in midstream, conceding – also for
the first time before the Supreme Court – that [Sixth Circuit] precedent was
incorrect and inconsistent with Bloate. The
Supreme Court granted certiorari, vacated the judgment, and remanded for
consideration “in light of the confession of error by the Solicitor General.”
On remand, the government changed
horses again. The government agreed the time for plea negotiations is not
automatically excluded under § 3161(h)(1) but now argues that White is not
entitled to relief because he either waived or forfeited the argument, or,
alternatively, the time was properly excluded under § 3161(h)(7).
In the fractured opinion issued on April 10th, there is some common ground. The panel agrees that Bloate v. United States, 559 U.S. 196
(2010), is intervening Supreme Court law that abrogates this Circuit’s
precedent. In light of Bloate, the
time spent during plea negotiations is not automatically excluded under §
3161(h)(1).
Judge Griffin would agree with
the government that White forfeited the argument that Bloate prevented a finding of automatic exclusion under §
3161(h)(1). Both Judge Guy and Clay, writing separate opinions, disagree, going as far as saying “it is the
government that forfeited its §
3161(h)(1) argument by failing to make it before the district court.” While this
appears to be an interesting tête-à-têtes, it does
not change the disposition of the appeal.
The majority (Judges Guy and
Griffin) hold that White’s two week period was properly excluded under §
3161(h)(7). Judge Clay dissents, concluding that the lower court did not make
the requisite findings to justify excluding the time based on the “ends of
justice.”
Asylum seeker failed to show Guatemalan government
was unwilling or unable to control her persecutors and protect her.
In K.H. v. Barr, a published opinion issued Monday, the Sixth Circuit set forth an analysis to be used when determining if an asylum seeker has established that her home country is "unwilling or unable" to control persecutors and protect her.
In the removal proceeding below, “the parties stipulated
that (1) the harm K.H. experienced rose to the level of persecution and (2)
K.H. was persecuted on account of her race and her membership in a particular
social group. Thus, the only remaining
issue was whether the Guatemalan government was unable or unwilling to control
K.H.’s persecutors and protect her.”
The Sixth Circuit took the opportunity to provide guidance
on the “unwilling or unable” analysis. In so doing, it rejected the First
Circuit’s “one-dimensional approach.” Instead, the Sixth Circuit has instructed
the immigration courts to “look to two general categories of information: (1) the government’s response to an asylum
applicant’s persecution and (2) general evidence of country conditions.”
Despite the Immigration Judge and BIA applying the incorrect
analysis, the Sixth Circuit proceeds to review the facts of the case and
concludes there is “substantial evidence” to support the BIA’s determination
that “K.H. failed to show that the Guatemalan government was unwilling or
unable to control her persecutors and protect her.” The Circuit therefore
affirms the BIA’s finding that K.H. failed to meet her burden for asylum.
The Sixth Circuit further held that the BIA did not abuse
its discretion when if found K.H. was not eligible for humanitarian asylum
because she had failed to establish that she suffered past persecution.
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