Pulling back on Havis?

In United States v. Havis, the en banc Sixth Circuit put a stop to expanding the sentencing guidelines through application notes. The court held that Guidelines § 4B1.2's definition of "controlled substance offense" [1] did not include attempt crimes, and the Sentencing Commission couldn't add attempts to the definition through its application notes. The court thus concluded that a Tennessee delivery conviction did not qualify as a controlled substance offense because, under Tennessee law, "'delivery' of drugs means 'the actual, constructive, or attempted transfer from one person to another of a controlled substance.'" Id. (quoting Tenn. Code Ann. § 39-17-402(6)) (emphasis in Havis). No judge dissented.

So everyone is on the same page? Not so fast. The court denied the government's motion for reconsideration, but Judge Sutton filed a concurrence. He pointed out that § 4B1.2's definition included distribution offenses, and although the guidelines don't define "distribution," Congress defined "distribute" as "to deliver," and "deliver" as "the actual, constructive, or attempted transfer" of drugs. 21 U.S.C. § 802.

So, by including distribution (and thus attempted transfers) in its definition of "controlled substance offense," does § 4B1.2 include attempts? Was the court's decision in Havis wrong? No, according to Judge Sutton, with a caveat. In his view, "attempted transfer" carries its ordinary meaning, not the legal-term-of-art meaning of intent plus a substantial step. Havis rightly concluded that the sentencing commission couldn't add legal-term-of-art attempts to § 4B1.2's definition. But § 4B1.2 does include completed crimes of attempted transfers, according to his concurrence.

But wait--wasn't that same "attempted transfer" language the basis for Havis's argument that his Tennessee conviction wasn't a controlled substance offense? Yes, says Judge Sutton, but the government never argued that Havis's Tennessee conviction wasn't an attempt offense. "It is too late to make it now. As for future cases, the parties may wish to consider the point."

That brings us to United States v. Garth. Garth argued that, after Havis, his Tennessee possession-with-intent-to-distribute conviction wasn't a controlled substance offense under the guidelines. Why? Because Tennessee's definition of "distribute" included "attempted transfers," and so his prior offense included possession-with-intent-to-attempt-to-transfer. That, Garth argued, was an attempt crime that fell outside of § 4B1.2's definition.

Judge McKeague's majority opinion and Judge Cole's concurrence agree that Garth's Tennessee conviction counts as a controlled substance offense, and agree on two reasons why. First, possession-with-intent-to-distribute is a completed offense, not an attempt--Garth wasn't convicted of attempted possession. Second, Garth hadn't shown a reasonable probability that Tennessee authorities would prosecute him for possessing drugs with intent to attempt to distribute them (but not with the intent to actually distribute them).

Echoing Judge Sutton's Havis concurrence, though, Judge McKeague's opinion went a step further. It said that, in Havis, the court merely accepted "the parties' agreement" that that Tennessee delivery covers attempted delivery because delivery means attempted transfer. The court would not "extend that agreement," and so Garth's Tennessee conviction was simply possession-with-intent-to-distribute, identical to § 4B1.2's definition. Judge Cole's concurrence noted that this part of the court's opinion was "unnecessary to our decision today," so he "would leave for another day the issue of whether Tennessee delivery includes attempted delivery."

What does this mean for Tennessee delivery convictions going forward? Havis concluded that a Tennessee delivery conviction was not a controlled substance offense, but Garth tells us that at least some of the judges don't consider that settled.

[1] "The term 'controlled substance offense' means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." U.S. Sentencing Guidelines Manual § 4B1.2(b).