... and Justice for All

Can the Sentencing Commission Expand the Guidelines' Reach Through Commentary? "Yes" Says the Sixth Circuit At Least for Now

An analog to axiom that bad facts make bad law is bad judging makes bad law. The Sixth Circuit's recent decision in United States v. Havis, where a three-judge panel issued four opinions illustrates slightly how far the Sixth Circuit has gone off the rails.

Havis pleaded guilty to being a felon in possession of a firearm, which seems straight-forward enough. But the district court, Hon. Travis R. McDonough of the Eastern District of Tennessee at Chattanooga, ruled that Havis' 20 year old conviction for selling or delivering cocaine was a "controlled substance offense" under the guidelines and increased his sentence. So Havis appealed.

Here's the issue: did Havis' drug conviction in Tennessee state court qualify as a "controlled substance offense" under the Guidelines? A categorical approach is used for this inquiry, which means that what Havis actually did is beside the point but whether the statute under which he was convicted criminalizes the same (or even less) or more conduct than that constituting a "controlled substance offense" under the Guidelines. If the state statute is broader, then there is no match and no enhancement.

The state statute, Havis argued, "includes attempting to transfer drugs, while the Guidelines only include completed controlled substance offenses." This seems a solid argument since and as the Sixth Circuit acknowledged in Judge Thapar's opinion for the panel majority (not to be confused with Judge Thapar's separate concurring opinion) "the Guidelines' actual text says nothing about attempt, and the Sentencing Commission cannot add to the text in commentary."

The problem, however, and the reason why Havis lost is that the Sixth Circuit in a very-poorly reasoned prior decision, United States v. Evans, 699 F.3d 858 (6th Cir. 2012), authored by Judge Julia Gibbons and joined by Judge Jeffrey Sutton and a district judge, held that the Guidelines commentary said that an attempt to engage in a controlled substance transaction was also a "controlled substance offense" even though the actual Guidelines' text said otherwise.

Why was it error for the Sixth Circuit in Evans to rely on the Guidelines' commentary? The Supreme Court held in Mistretta v. United States, 488 U.S. 361 (1989), that the Sentencing Commission and the Guidelines passed constitutional muster for two reasons: (1) Congress may review amendments to the Guidelines' text before they become effective; and, (2) the Commission, like other administrative agencies, must comply with the notice-and-comment requirements of the Administrative Procedure Act.

So what's the problem? "A problem thus arises when the Commission bypasses these procedures by adding offenses to the Guidelines through commentary rather than through an amendment," explains Judge Thapar's panel opinion. Commentary may be used to "interpret the [Guidelines] text that is already there ... [but] a comment that increases the range of conduct that the Guidelines cover has clearly taken things a step beyond interpretation."

But it is no matter; the Evans case has already decided the issue, and so Havis is stuck with the mistake and the longer sentence that goes with it, which, of course, is par for the course.

Judge Stranch both joined Judge Thapar's opinion for the panel and offered her own concurrence. As to the issue presented by Havis, she observes that "by attempting to add offenses to the Guidelines through commentary rather than by amendment, the Commission changed lanes inappropriately, driving in the interpretive lane of commentary when it was bound to proceed in the notice and comment lane of amendment." The main focus of Judge Stranch's opinion deals with issues of administrative law, particularly the Supreme Court's decision in Auer v. Robbins, 519 U.S. 452 (1997).

Judge Thapar's concurrence, which seems a Supreme Court audition, is also focused on Auer and replete with citations to non-majority opinions of Justices Scalia, Thomas, Gorsuch, as well as Marbury v. Madison, the Federalist Papers and Montesquieu's Spirit of the Laws. This too is part of a conversation that coincidentally touches on Havis' sentencing issues.

Judge Daughtrey dissents and views Evans as not a binding precedent since it merely "assumed that the commentary ... could expand the definition of "controlled substance offenses" to include attempts to commit those crimes" and "such assumptions ... are not binding" in cases that squarely raise the issue. Judge Daughtrey agrees that the Commission has engaged in "the improper expansion of the class of crimes that can be considered controlled substance offenses."

All four opinions request en banc review as to which no action has yet occurred.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

 

The "Extraordinary Record" and "Good Works" of Matthew Charles Present to the Sixth Circuit "No Such Problem" To Lock Him Up Another Ten Plus Years

The case of Matthew Charles is one that places a great and immutable stain on the federal criminal justice system. That the Sixth Circuit, in a disturbingly glib opinion authored by Judge Jeffrey Sutton, fuels it further and idiotically proposes that the Justice Department, which has labored mightily to get Charles put back in jail and be kept there another ten years, help Charles withe executive clemency, a suggestion utterly untethered by any notion of common sense. See the latest United States v. Charles, August 23, 2018.

Matt Charles was convicted of crack cocaine and gun charges in 1996, which were preceded by some prior convictions. He received a sentence of 35 years, which equals 420 months. He was also determined to be a career offender, a reality that escalated his sentence greatly.

In the years following his initial sentencing and after numerous reports so urging from the United States Sentencing Commission, the federal crack cocaine law was changed to make possession of one ounce of crack cocaine as bad as 500 grams of powder cocaine. This makes no sense since powder cocaine is a precursor - you can't get crack cocaine unless you first have powder cocaine -- to crack cocaine but it is better than the previous ratio of 1:100. Many labored hard for a while to achieve even this modest change in the federal criminal law; I cite my own contribution: Congress Must Fix Inequitable Drug Sentences.

Charles petitioned for a sentence reduction and one was granted in 2014 and he was re-sentenced to merely 24 years 4 months and released not long after. The government -- the Justice Department -- objected and appealed Charles' sentence reduction and he was ordered to go back to jail for another ten years, a development that produced much, well, outrage is a fair word: As He Heads Back to Prison, A Nashville Man Says "Goodbye" to the New Life He Hoped to Build; The Remarkable Rehabilitation of Matthew Charles Makes a Case for Prosecutorial Discretion; He Rebuilt His Life Only to Be Sent Back to Prison.

But really this goes nowhere, and the Sixth Circuit is glib and aloof in rejecting Charles' appeal: (1) the court mocks Charles' argument, stating "under Charles' theory, the limitations applicable to inmates who are eligible for relief would not apply to inmates who are ineligible for relief,"; (2) while admitting that Charles' initial sentence was unconstitutionally imposed in violation of the Sixth Amendment, as to whether it poses an injustice the court finds "no such problem." These are just two examples.

The end result is that Charles' sentence, if he had been sentenced constitutionally, would have been not more than 20 years (4 years 4 months less than his reduced sentence that the Sixth Circuit invalidated). The Justice Department, an executive branch as may be recalled, has labored quite mightily in having the Constitution disregarded and Charles put back in jail  and for a long while. Notwithstanding this reality and while extolling Charles' "extraordinary record" and "good works" suggests that Charles should seek executive clemency. In other words, now that the Sixth Circuit has blessed and ratified Charles' jailers efforts to get him back in jail for another 10 years, he should ask the jailer to agree to let him out. Right, Judge Sutton.

Turn, turn, turn again:

 

Robert L. Abell
www.RobertAbellLaw.com

 

 

Form Over Substance; the Sixth Circuit Dives Over the Edge

Form too often is elevated way above substance and the Sixth Circuit's decision in United States v. Mitchell is a disturbing illustration of the point, as well as more wasted and empty motion that could be thought reasonable.

The defendant, Stephen Mitchell, had three prior felony convictions when he was convicted of violating 18 U.S.C. § 922(g)(felon in possession of a firearm). The district court found that he fell under the Armed Career Criminal Act (ACCA) and sentenced him to 250 months (20 years, 10 months). This was in about 2000. 

In the intervening 18 years or so since Mitchell was sentenced initially, the Supreme Court has invalidated portions of the ACCA. See Welch v. United States, 136 SCt 1257 (2016); Johnson v. United States, 135 SCT 2551 (2015). These decisions benefited Mitchell, because they precluded application of the ACCA to him. This meant that the longest sentence that Mitchell could receive lawfully was the 10 year maximum that goes with a violated of § 922(g). Problem was, though, Mitchell had already served in prison about 7-8 years more than the law allows. 

The district court imposed a sentence of time served and three years supervised release. This would seem enough to end it; Mitchell had already served many more years than could be imposed lawfully.

Nevertheless, both the government and Mitchell appealed.

The government's appeal went nowhere, but the Sixth Circuit ruled that the district court erred in imposing a sentence of "time served." The explanation: a time-served sentence "is inappropriate relief when the habeas petitioner has served a sentence greater than the statutory maximum." Accordingly, the case was remanded for resentencing.

One wonders why? The district court can't impose a sentence of 10 years, the statutory maximum, or even less, because Mitchell has already served many more than 10 years. It would seem to bring the judicial system into disrepute to engage in such fiction. What other alternatives are there, and, whatever they may be, what is accomplished by trundling through them. This is form over substance and wasted motion near its highest degree.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com