Commentary That Seeks to Make Additions to the Guidelines' Actual Language Is Entitled to "No Deference"

Sitting en banc, the Sixth Circuit issued a short and elegant opinion in United States v. Havis, which addressed whether the definition of "controlled substance offense" in Guideline 4B1.2(b) includes attempt crimes where the commentary alone includes attempt.  The simple answer: NO - to find otherwise would violate the separation of powers.

Noting that the Commentary has no freestanding definitional power, the Sixth Circuit looked to the plain language of 4B1.2(b). Finding no "attempt" in that language, the Sixth Circuit reasoned that was the end of the inquiry as to what constitutes a "controlled substance offense" under the Guidelines. "The guideline expressly names the crimes that qualify as controlled substance offenses under 2K2.1(a)(4); none are attempt crimes."

Moreover, to allow the Commentary to add an offense not listed in the Guidelines would run afoul of separation of powers. The Sixth Circuit explained this is so because the Commentary "never passes through the gauntlets of congressional review or notice and comment" that the regular Guidelines experience. As a result, the Sentencing Commission's use of commentary to add attempt offenses "deserves no deference."