Sixth Circuit Grants En Banc Review in United States v. Havis; Is There a Major Course Correction In the Offing Regarding the Use and Application of Guidelines Commentary at Sentencing?

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.