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               Congressional                                                ______
           SResearch Service






Gun Crime Penalty Tossed



June   20, 2019
Summary
The full United States Court of Appeals for the Sixth Circuit (Sixth Circuit) (sitting en banc), in United
States v. Havis, recently held that prior attempt convictions do not warrant a felon-in-possession-of-a-
firearm sentencing enhancement. Ordinarily binding commentary included in the U.S. Sentencing
Commission's  sentencing guidelines would require enhancement for prior attempt convictions. A number
of other federal appellate courts, including the U.S. Court of Appeals for the Eleventh Circuit in 2017,
have deferred to the Sentencing Commission's interpretation. The Sixth Circuit, however, concluded that
the commentary is not entitled to deference because it conflicts with the text of the guideline.
Sentencing Commission
Congress authorizes the Sentencing Commission to promulgate the federal sentencing guidelines. The
Commission  ordinarily updates the guidelines as part of an annual cycle that begins with the publication
of proposed amendments followed by a notice and comment period. The Commission sends its final
proposed amendments  to Congress for approval, and the amendments become effective shortly thereafter
unless Congress intervenes statutorily. The Commission also issues interpretative commentary in the
form of application notes that do not go through the amendment process. The Supreme Court has held that
an application note is binding unless it violate[s] the Constitution or a federal statute ... or is plainly
erroneous or inconsistent with the guideline it accompanies. The Court has also held that federal courts
must begin the sentencing process by calculating the sentencing range recommended by the guidelines.
The courts must consider the results along with other statutorily required considerations, and any
guideline miscalculation may doom the sentence ultimately imposed.
Havis
A federal district court convicted Havis of unlawful possession of a firearm by a previously convicted
felon. Some seventeen years earlier, a Tennessee court had convicted Havis on a charge of selling or
delivering cocaine. The Tennessee statute covered both actual and attempted delivery. The sentencing
guideline applicable to unlawful possession of a firearm calls for a substantial sentencing enhancement if
a defendant has a prior controlled substance offense conviction. The accompanying commentary's
application note defines a controlled substance offense, by way of a cross-reference, to a second guideline
and its commentary. The second guideline states that the term 'controlled substance offense' 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
                                                                   Congressional Research Service
                                                                   https://crsreports.congress.gov
                                                                                        LSB10312

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