Sentencing Guidelines – Commentary and Application Notes by the U.S. Sentencing Commission deserve no deference and cannot add elements and definitions to the Guidelines contrary to the text of the Guidelines provision itself.
Career Offender – U.S.S.G. 4B1.2(b) – does not include attempt crimes as prior convictions.
Sitting en banc, the Court reviewed Jeffrey Havis’s sentence for being a felon in possession of a firearm, which was enhanced based on Havis’s prior conviction for a controlled substance offense.
On appeal, Havis argued that the definition of “controlled substance offense” is controlled by U.S.S.G. § 4B1.2(b), which does not include attempted crimes. Since Havis was convicted under a Tennessee law that encompassed “the mere attempt to sell cocaine,” it should not have counted towards his offense level as a prior conviction for a “controlled substance offense.”
A panel of the Court had previously affirmed Havis’s sentence, relying on a prior Sixth Circuit opinion that allowed attempt crimes to be counted under § 4B1.2(b). That opinion in turn relied on the Sentencing Commission’s commentary/Advisory Notes to § 4B1.2, which explicitly include attempt crimes under the definition of “controlled substance offense.”
Sitting en banc, the Court reversed the prior panel opinion, holding that the Commission’s commentary and Application Notes cannot be read into the text of a Guidelines provision and that the Commission’s use of commentary to add elements and definitions to Guidelines provisions “deserves no deference.” Since § 4B1.2 does not, by its own text, include attempt crimes as “controlled substance offenses,” prior convictions for attempted crimes do not fall under § 4B1.2(b).
Under the categorical approach, the least culpable conduct under the Tennessee statute in question here is the attempted sale of cocaine. Accordingly, the sentencing court erred by counting Havis’s prior conviction under that statute as a “controlled substance offense” under § 4B1.2(b).
Appeal from the Eastern District of Tennessee
Per Curiam Opinion