                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 19a0117p.06

                    UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                               ┐
                                   Plaintiff-Appellee,   │
                                                         │
                                                         >      No. 17-5772
       v.                                                │
                                                         │
                                                         │
 JEFFERY HAVIS,                                          │
                                Defendant-Appellant.     │
                                                         ┘

                           Appeal from the United States District Court
                      for the Eastern District of Tennessee of Chattanooga.
                  No. 1:16-cr-00121-1—Travis R. McDonough, District Judge.

                               Decided and Filed: June 6, 2019

   BEFORE: COLE, Chief Judge; DAUGHTREY, MOORE, CLAY, GIBBONS, SUTTON,
   GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN,
              NALBANDIAN, READLER and MURPHY, Circuit Judges.

                                     _________________

                                         COUNSEL
ON PETITION FOR REHEARING EN BANC AND REPLY: Jennifer Niles Coffin,
FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee,
for Appellant. ON RESPONSE IN OPPOSITION: Luke A. McLaurin, William A. Roach, Jr.,
UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF:
Caleb Kruckenberg, NEW CIVIL LIBERTIES ALLIANCE, Washington, D.C., for Amicus
Curiae.
                                     _________________

                                          OPINION
                                     _________________

      PER CURIAM.        Although it is neither a legislature nor a court, the United States
Sentencing Commission plays a major role in criminal sentencing. But Congress has placed
 No. 17-5772                             United States v. Havis                                            Page 2


careful limits on the way the Commission exercises that power. Jeffery Havis argues that the
Commission stepped beyond those limits here and, as a result, he deserves to be resentenced.
We agree and REVERSE the decision of the district court.

                                            I. BACKGROUND

       In 2017, Havis pled guilty to being a felon in possession of a firearm. See 18 U.S.C.
§ 922(g)(1). Under the Sentencing Guidelines, a person convicted under § 922(g)(1) starts with
a base offense level of 14; but that level increases to 20 if the defendant has a prior conviction
for a “controlled substance offense.” See USSG §§ 2K2.1(a)(4), (a)(6). At sentencing, the
district court decided that Havis’s 17-year-old Tennessee conviction for selling and/or delivering
cocaine was a controlled substance offense under the Guidelines. Havis objected because the
Tennessee statute at issue criminalizes both the “sale” and “delivery” of cocaine, and his
charging documents did not specify whether his conviction was for sale, delivery, or both. See
Tenn. Code Ann. § 39-17-417(a)(2)–(3). Under Tennessee law, “delivery” of drugs means “the
actual, constructive, or attempted transfer from one person to another of a controlled substance.”
Id. § 39-17-402(6) (emphasis added). Havis therefore argued that his Tennessee conviction was
not a controlled substance offense because it encompassed the mere attempt to sell cocaine, and
the Guidelines’ definition of “controlled substance offense” does not include attempt crimes. See
USSG § 4B1.2(b).1 The district court overruled Havis’s objection because an unpublished case
of this circuit, United States v. Alexander, held that any violation of § 39-17-417 is a controlled
substance offense. 686 F. App’x 326, 327–28 (6th Cir. 2017) (per curiam). In combination with
other adjustments, that left Havis with a Guidelines range of 46 to 57 months. The district court
sentenced him to 46 months, and he appealed.




       1A   “controlled substance offense” under § 4B1.2(b) 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.
 No. 17-5772                             United States v. Havis                                        Page 3


        A panel of this court affirmed Havis’s sentence for one reason: our decision in United
States v. Evans held that the definition of “controlled substance offense” in § 4B1.2(b) includes
attempt crimes. United States v. Havis, 907 F.3d 439, 442 (6th Cir. 2018) (citing United States v.
Evans, 699 F.3d 858, 866–67 (6th Cir. 2012)). The Evans court relied on the Sentencing
Commission’s commentary to § 4B1.2(b), which states that a controlled substance offense
“includes ‘the offenses of aiding and abetting, conspiring, and attempting to commit such
offenses.’” Id. at 866 (quoting USSG § 4B1.2(b) comment (n.1)). But Havis objects to this
commentary on a ground never raised by the parties in Evans: he argues that the Guidelines’ text
says nothing about attempt, and the Sentencing Commission has no power to add attempt crimes
to the list of offenses in § 4B1.2(b) through commentary. We granted en banc review to address
that narrow claim.2

                                              II. ANALYSIS

        A. Legal Framework

        Whether a prior conviction counts as a predicate offense under the Guidelines is a
question of law subject to de novo review. United States v. Wynn, 579 F.3d 567, 570 (6th Cir.
2009). Employing the categorical approach, we do not consider the actual conduct that led to
Havis’s conviction under the Tennessee statute at issue; instead, we look to the least of the acts
criminalized by the elements of that statute. Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013).
If the least culpable conduct falls within the Guidelines’ definition of “controlled substance
offense,” then the statute categorically qualifies as a controlled substance offense. But if the
least culpable conduct falls outside that definition, then the statute is too broad to qualify, and the
district court erred by increasing Havis’s offense level.

        The parties agree that the least culpable conduct covered by § 39-17-417 is the attempted
delivery of a controlled substance. See Tenn. Code Ann. § 39-17-402(6). The question before
the court, then, is whether the definition of “controlled substance offense” in § 4B1.2(b) includes
attempt crimes. The Sentencing Commission said it does in the commentary to § 4B1.2(b). See

        2The    panel decision addressed (and rejected) a number of alternative grounds for finding that Havis’s
Tennessee conviction did not qualify as a controlled substance offense. See Havis, 907 F.3d at 444–47. Havis does
not revisit those claims in his en banc petition.
 No. 17-5772                        United States v. Havis                                Page 4


USSG § 4B1.2(b) comment (n.1). But the plain language of § 4B1.2(b) says nothing about
attempt crimes. On appeal, Havis maintains that we must look to the actual text of Guideline
§ 4B1.2(b). The Government asks us to defer to the Commission’s commentary.

       B. Role of the Sentencing Commission

       To decide which construction of § 4B1.2(b) prevails, we begin with the Sentencing
Commission and its role in our constitutional system. Congress created the Commission as an
independent body “charged [] with the task of establish[ing] sentencing policies and practices for
the Federal criminal justice system.” Stinson v. United States, 508 U.S. 36, 40–41 (1993)
(citation and internal quotation marks omitted). The Commission fulfills its purpose by issuing
the Guidelines, which provide direction to judges about the type and length of sentences to
impose in a given case. Id. at 41. Although judges have some discretion to deviate from the
Guidelines’ recommendations, our procedural rules “nevertheless impose a series of
requirements on sentencing courts that cabin the exercise of that discretion.” Peugh v. United
States, 569 U.S. 530, 543 (2013). A judge cannot stray from a defendant’s Guidelines range, for
example, without first giving an adequate explanation for the variance. See id. The Commission
thus exercises a sizable piece “of the ultimate governmental power, short of capital
punishment”—the power to take away someone’s liberty. United States v. Winstead, 890 F.3d
1082, 1092 (D.C. Cir. 2018) (citation omitted).

       That power is ordinarily left to two branches of government—first to the legislature,
which creates a range of statutory penalties for each federal crime, and then to judges, who
sentence defendants within the statutory framework. But the Commission falls squarely in
neither the legislative nor the judicial branch; rather, it is “an unusual hybrid in structure and
authority,” entailing elements of both quasi-legislative and quasi-judicial power. Mistretta v.
United States, 488 U.S. 361, 412 (1989). In Mistretta, the Supreme Court explained how the
Commission functions in this dual role without disrupting the balance of authority in our
constitutional structure. Although the Commission is nominally a part of the judicial branch, it
remains “fully accountable to Congress,” which reviews each guideline before it takes effect. Id.
at 393–94; see also 28 U.S.C. § 994(p). The rulemaking of the Commission, moreover, “is
subject to the notice and comment requirements of the Administrative Procedure Act.” Id. at
 No. 17-5772                              United States v. Havis                                          Page 5


394; see also 28 U.S.C. § 994(x). These two constraints—congressional review and notice and
comment—stand to safeguard the Commission from uniting legislative and judicial authority in
violation of the separation of powers.

        Unlike the Guidelines themselves, however, commentary to the Guidelines never passes
through the gauntlets of congressional review or notice and comment.                        That is also not a
problem, the Supreme Court tells us, because commentary has no independent legal force—it
serves only to interpret the Guidelines’ text, not to replace or modify it. See Stinson, 508 U.S. at
44–46; see also United States v. Rollins, 836 F.3d 737, 742 (7th Cir. 2016) (en banc) (“[T]he
application notes are interpretations of, not additions to, the Guidelines themselves . . . .”).
Commentary binds courts only “if the guideline which the commentary interprets will bear the
construction.” Stinson, 508 U.S. at 46. Thus, we need not accept an interpretation that is
“plainly erroneous or inconsistent with the” corresponding guideline. Id. at 45 (citation omitted).

        C. Defining “Controlled Substance Offense”

        The Government urges us to find that the commentary at issue here—Application Note 1
to § 4B1.2, which adds attempt crimes to the list of controlled substance offenses under
§ 4B1.2(b)—is not a “plainly erroneous” interpretation of the corresponding guideline. 3 But the
Government sidesteps a threshold question: is this really an “interpretation” at all? The guideline
expressly names the crimes that qualify as controlled substance offenses under § 2K2.1(a)(4);
none are attempt crimes. And the Commission knows how to include attempt crimes when it
wants to—in subsection (a) of the same guideline, for example, the Commission defines “crime
of violence” as including offenses that have “as an element the use, attempted use, or threatened
use of physical force against the person of another.” USSG § 4B1.2(a) (emphasis added).



        3The     Government argues in the alternative that the real commentary at issue is Application Note 1 to
§ 2K2.1, which cross-references the definition of “controlled substance offense” in Application Note 1 to § 4B1.2.
The Government never made that argument in the district court or before the initial panel on appeal and arguably has
forfeited its right to do so now. At any rate, it makes no difference whether we begin with § 2K2.1 to determine the
meaning of “controlled substance offense.” The commentary to § 2K2.1 directs us to apply “the meaning given that
term in § 4B1.2(b) and Application Note 1 of the Commentary to § 4B1.2.” If anything, the Government’s proposed
definition—which would require us to defer to commentary on other commentary—would carry an even more
tenuous connection to the guideline’s text.
 No. 17-5772                              United States v. Havis                                           Page 6


         To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in
the guideline itself—no term in § 4B1.2(b) would bear that construction.4                             Rather, the
Commission used Application Note 1 to add an offense not listed in the guideline.                               But
application notes are to be “interpretations of, not additions to, the Guidelines themselves.”
Rollins, 836 F.3d at 742.           If that were not so, the institutional constraints that make the
Guidelines constitutional in the first place—congressional review and notice and comment—
would lose their meaning. See Winstead, 890 F.3d at 1092 (“If the Commission wishes to
expand the definition of ‘controlled substance offenses’ to include attempts, it may seek to
amend the language of the guidelines by submitting the change for congressional review.”). The
Commission’s use of commentary to add attempt crimes to the definition of “controlled
substance offense” deserves no deference. The text of § 4B1.2(b) controls, and it makes clear
that attempt crimes do not qualify as controlled substance offenses.

                                             III. CONCLUSION

         The Guidelines’ definition of “controlled substance offense” does not include attempt
crimes. Because the least culpable conduct covered by § 39-17-417 is attempted delivery of a
controlled substance, the district court erred by using Havis’s Tennessee conviction as a basis for
increasing his offense level.           We therefore REVERSE the district court’s decision and
REMAND for further proceedings consistent with this opinion.




         4The   Government also suggests that the use of the term “prohibits” in § 4B1.2(b) expands the scope of the
guideline to cover attempt crimes. Once again, the Government never made this argument in the district court or
before the initial panel on appeal. Regardless, the guideline’s boilerplate use of the term “prohibits” simply states
the obvious: criminal statutes proscribe conduct. See, e.g., Connally v. Gen. Constr. Co., 269 U.S. 385, 393 (1926)
(“Penal statutes prohibit[] the doing of certain things, and provid[e] a punishment for their violation . . . .”).
That does not help the Government.
