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GUIDELINES “CAREER OFFENDER” COMMENTARY GOES TOO FAR, 6TH CIRCUIT SUGGESTS
Jeff Havis attacked his sentence for gun possession by arguing that a prior Tennessee conviction for selling or delivering cocaine should not count as a “controlled substance offense” under the Guidelines to increase his base offense level. The 6th Circuit last week said it was foreclosed by a prior panel decision that the Tennessee offense did count under the Guidelines, and thus could not give Jeff the relief he wanted.
But remarkably, the opinion does not stop there. Instead, it held that Jeff’s complaint “has legs” despite a panel opinion to the contrary. Thirty years ago, the Supreme Court found the Guidelines not to violate the constitutional separation-of-powers doctrine in Mistretta v. United States, because Congress has a chance to review amendments before they take effect and the United States Sentencing Commission must comply with the notice-and-comment requirements of the Administrative Procedure Act when it adopts them.
This is crucial, because Tennessee’s drug trafficking statute includes “attempts” to violate the statute within its definition, something the Guidelines does not include in its text. Thus, the Tennessee law is broader than the Guidelines, meaning the Tennessee statute should not count as a controlled substance offense. However, in the commentary to the Guidelines, the USSC expanded the Guidelines definition to include attempts.
This is a problem, the Circuit said. The procedural requirements governing amendment of Guidelines “are one piece of a larger puzzle. If the Commission can add to or amend the Guidelines solely through commentary, then it possesses a great deal more legislative power than Mistretta envisioned. This means that in order to keep the Sentencing Commission in its proper constitutional position — whatever that is exactly — courts must keep Guidelines text and Guidelines commentary, which are two different vehicles, in their respective lanes.
The 6th Circuit panel quietly begged Jeff to seek en banc review to overturn the prior precedent, and to put USSC commentary into limited role it should occupy.
United States v. Havis, Case No. 17-5772 (6th Cir. Oct. 22, 2018)
– Thomas L. Root