Chip, Chip, Chipping Away at Havis

At least initially, the Court's opinion in Havis opened a door through which defense counsel could challenge prior convictions the Government argued were controlled substance offenses under the United States Sentencing Guidelines. Holding the "Guidelines' definition of a controlled substance offense does not include attempt crimes," the Court held that Havis's previous conviction for selling and/or delivering cocaine under Tennessee law (Tenn. Code Ann. § 39-17-417) was not a "controlled substance offense." This decision gave defense counsel a useful tool to challenge any prior drug conviction for an offense that might include the attempted commission of the same.

Since Havis, however, the Court has issued a series of decisions partially closing that door. Its decision in United States v. Miller is its latest. In this case, Daniel Miller pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Like Havis, Miller had prior convictions for drug delivery under Tennessee law. Relying upon Havis, the district court agreed that Miller's prior convictions were not controlled substance offenses under the Guidelines, applying a base offense level of fourteen instead of the base offense level of twenty four requested by the Government.

No so, said the Court. It called Havis "unusual" because both Havis and the Government had previously stipulated as to the scope of Tenn. Code Ann. § 39-17-417. The Court held this stipulation was incorrect. Like federal law, Tennessee defines delivery to include "attempted transfer," and it criminalized attempts to violate drug laws through a separate statute.

The Court also rejected Miller's argument that it was bound to the previous construction it provided to Tenn. Code Ann. § 39-17-417. It held it was free to construe the statute differently because its previous construction had not been "fully debated" in Havis due to the parties' erroneous stipulation.

Finally, the Court rejected Miller's claim that Tennessee's definition of "delivery" was ambiguous and that the rule of lenity required a construction in his favor. Not so, said the Court, holding the definition was not so ambiguous as to require the rule's application.

The Court's decision in Miller significantly restricts Havis's reach. While its ultimate holding remains unchanged, the canvas upon which counsel may use it has certainly grown smaller.