United States v. Havis, 17-5772

• Decision Date: 22 October 2018
• Docket Number: No. 17-5772,17-5772
• Citation: 907 F.3d 439
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffery HAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

907 F.3d 439

UNITED STATES of America, Plaintiff-Appellee,

v.Jeffery HAVIS, Defendant-Appellant.

No. 17-5772

United States Court of Appeals, Sixth Circuit.

Argued: May 1, 2018

Decided and Filed: October 22, 2018

ARGUED: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. William Allen Roach, Jr., UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. William Allen Roach, Jr., UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.

Before: DAUGHTREY, STRANCH, and THAPAR, Circuit Judges.

THAPAR, J., delivered the opinion of the court in which STRANCH J., joined. STRANCH, J. (pp. 447–50), delivered a separate concurring opinion. THAPAR, J. (pp. 450–52), delivered a separate concurring opinion. DAUGHTREY, J. (pp. 452–53), delivered a separate dissenting opinion.

THAPAR, Circuit Judge.

What we do is sometimes less important than how we do it. The United States Sentencing Commission has the power to promulgate the Sentencing Guidelines. But Congress has limited how it may exercise that power. Those limits are important—not only because Congress thinks so, but because they define the Commission’s identity in our constitutional structure.

Jeffery Havis claims that the Commission has disregarded those limits. And he may have a point. But a prior published decision of our court requires that we reject this part of his argument. Following that precedent and finding Havis’s other arguments unavailing, we affirm his sentence.

I.

Jeffery Havis pled guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). As it turns out, he had a lengthy criminal record. And at sentencing, the district court concluded that his twenty-year-old state conviction for selling or delivering cocaine amounted to a "controlled substance offense" under the Guidelines and increased his base offense level accordingly. U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (U.S. Sentencing Comm’n 2016); see Tenn. Code Ann. § 39-17-417(a)(2)–(3) (2000).

Havis objected to the increase. He argued that delivering cocaine does not qualify as a "controlled substance offense" and that it was unclear whether his state conviction was for delivery or sale. The district court found this argument unavailing on account of this court’s decision in United States v. Alexander , which held that any violation of the Tennessee statute at issue is a controlled substance offense. 686 F. App'x 326, 327–28 (6th Cir. 2017) (per curiam). The district court thus reasoned that it did not matter whether Havis was convicted of selling or delivering cocaine since both qualified as a basis to increase his sentence. Havis now appeals, and we review the district court’s decision de novo. United States v. Evans , 699 F.3d 858, 862 (6th Cir. 2012).

II.

To determine whether delivering drugs in violation of Tennessee law is a controlled substance offense, we apply the categorical approach. United States v. Woodruff , 735 F.3d 445, 449 (6th Cir. 2013). Under this approach, we care not about the facts of Havis’s actual misconduct but about the elements of drug delivery under Tennessee law. Taylor v. United States , 495 U.S. 575, 600–02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ; Woodruff , 735 F.3d at 449. Thus, our job is to match up the elements of Tennessee drug delivery with those of a "controlled substance offense" under the Guidelines and see if Tennessee criminalizes a broader range of conduct. See Taylor , 495 U.S. at 599–600, 110 S.Ct. 2143 ; Woodruff , 735 F.3d at 449. If so, no match, and the district court erred by increasing Havis’s base offense level. But if Tennessee drug delivery criminalizes the same (or a narrower) range of conduct, we have a match and the district court was right.

A.

Havis first argues that Tennessee drug delivery 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. The problem for Havis, however, is that this court has already interpreted the Guidelines’s definition of "controlled substance offense" to include attempts. Evans , 699 F.3d at 866–67. To get there, the court relied on the Guidelines’s commentary, which explicitly states that a controlled substance offense "include[s] ‘the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.’ " Id. at 866 (quoting U.S.S.G. § 4B1.2 cmt. n.1). And reliance on the commentary was necessary to the result in Evans . Id. at 868 ; cf. United States v. McMurray , 653 F.3d 367, 375 (6th Cir. 2011) (deeming a statement dictum where it "was not necessary to the outcome" of a prior case (quoting United States v. Turner , 602 F.3d 778, 786 (6th Cir. 2010) ) ).

Havis argues that the Evans court erred when it relied on the commentary because the Guidelines’s actual text says nothing about attempt, see U.S.S.G. § 4B1.2(b), and the Sentencing Commission cannot add to the text in commentary. But save an en banc decision of this court or an intervening decision of the Supreme Court, we must follow Evans nonetheless. Salmi v. Sec’y of Health & Human Servs. , 774 F.2d 685, 689 (6th Cir. 1985) ; see also McMurray , 653 F.3d at 375 ; Grundy Mining Co. v. Flynn , 353 F.3d 467, 479 (6th Cir. 2003) ("We are not free to pick and choose the portions of a prior published decision that we will follow and those that we will disregard. Nor do we enjoy greater latitude in situations where our precedents purportedly are tainted by analytical flaws[.]"). There is no way to grant Havis relief without overruling Evans ’s reliance on the very same commentary at issue here.

The fact that we are foreclosed from reversing a prior panel does not mean, however, that Havis’s challenge to the commentary does not have legs. To understand his challenge to the Sentencing Commission’s use of commentary, one must take a closer look at the Commission itself. Back in 1984, Congress created the Commission, a sort of hybrid body that does not fit squarely within any of the three branches of government. See 28 U.S.C. § 991. The agency is formally "located" within the judicial branch, but its job is to make policy judgments about criminality by promulgating the Guidelines. See id. In Mistretta v. United States , 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), the Supreme Court undertook the delicate task of explaining why the Commission does not, despite its unique character, exercise both judicial and legislative functions in violation of the separation of powers. See generally id. at 380–412, 109 S.Ct. 647. The Court’s explanation hinged in part on the limits Congress placed on the Commission’s power to promulgate the Guidelines. First, Congress must have a chance to review amendments to the Guidelines’s text before they take effect. 28 U.S.C. § 994(a), (p) ; Mistretta , 488 U.S. at 393–94, 109 S.Ct. 647. And second, the Sentencing Commission must comply with the notice-and-comment requirements in the Administrative Procedure Act. 28 U.S.C. § 994(x) ; Mistretta , 488 U.S. at 394, 109 S.Ct. 647. Without these limits, the Court explained that the Commission might be said to possess "the power of judging joined with the legislative," Mistretta , 488 U.S. at 394, 109 S.Ct. 647 (quoting The Federalist No. 47, at 326 (James Madison) (J. Cooke ed., 1961) ), thereby compromising the ability of the branches to check one another’s power—"the greatest security against tyranny," id. at 381, 109 S.Ct. 647 (citing The Federalist No. 51, at 349 (James Madison) (J. Cooke ed., 1961) ). But with these limits in place, the Court ruled that the Commission, although something of an odd duck, was constitutional.

A problem thus arises when the Commission bypasses these procedures by adding offenses to the Guidelines through commentary rather than through an amendment. Unlike the text of the Guidelines, the Commission does not have to give Congress a chance to review commentary it publishes along with the Guidelines’s text, nor must the Commission float commentary through notice and comment. See Stinson v. United States , 508 U.S. 36, 40–41, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) ; United States v. Rollins , 836 F.3d 737, 742–43 (7th Cir. 2016) (en banc). As such, the Commission may only use commentary to interpret the text that is already there. Stinson , 508 U.S. at 42–43, 47, 113 S.Ct. 1913. And a comment that increases the range of conduct that the Guidelines cover has clearly taken things a step beyond interpretation. See United States v. Winstead , 890 F.3d 1082, 1090–91 (D.C. Cir. 2018) ; Rollins , 836 F.3d at 742.¹ Indeed, when Congress wants to criminalize the attempt to commit a certain crime that is already defined in the code, it does so explicitly in the code itself. E.g. , 21 U.S.C. § 846. Thus, in Havis’s view, the Commission should have taken the same approach here and amended the Guidelines.

As Mistretta taught, these procedural requirements 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. See, e.g. , Winstead , 890 F.3d at 1092 ; Rollins , 836 F.3d at 742 ; United States v. Soto-Rivera , 811 F.3d 53, 60 (1st Cir. 2016).

Moreover, the now-advisory nature of the Guidelines does not render the limits on the Commission’s rulemaking power any less important. See United States v. Booker , 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (rendering the Guidelines "effectively...