U.S. v Jeffrey Havis
Jeffery Havis was sentenced to federal prison in reliance on a provision of the U.S. Sentencing Guidelines Manual that was passed without required Congressional approval. The Guidelines set presumptive criminal sentences and are written by a federal agency. But because of their impact on individual liberty, they must be approved by Congress.
Mr. Havis was sentenced, however, by a provision of the guidelines that was never sent to Congress for approval. This violated fundamental separations of powers required by the constitution. After unsuccessfully appealing his sentence before the Sixth Circuit, NCLA filed an amicus brief in support of review by the full Court en banc.
The Court granted review and vacated the enhancement.
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Remanded for Resentencing by the Sixth Circuit.
CASE START DATE:
November 15, 2018
U.S. Court of Appeals for the Sixth Circuit
U.S. Court of Appeals for the Sixth Circuit
June 6, 2019 | USA v. Jeffery Havis Opinion and Judgment Filed
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The district court overruled Havis’s objection because an unpublished case of this circuit, United States v. Alexander, held that any violation of § 39-17-417 is a controlled substance offense. 686 F. App’x 326, 327–28 (6th Cir.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.
April 18, 2019 | USA v Jeffery Havis Appeal Granted
A majority of the Judges of this Court in regular active service has voted for rehearing en banc of this case. Sixth Circuit Rule 35(b) provides as follows:
The effect of the granting of a hearing en banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket sheet as a pending appeal.
Accordingly, it is ORDERED, that the previous decision and judgment of this court are vacated, the mandate is stayed and this case is restored to the docket as a pending appeal.
Briefing and scheduling of this case for oral argument will follow as the Clerk may direct.
June 6, 2019 | NCLA Wins Repeal of Judicial Deference Doctrine by Sixth Circuit
The New Civil Liberties Alliance filed the only amicus curiae brief in support of Havis, arguing that the Sixth Circuit’s existing version of so-called Stinson deference violated the Constitution. The court of appeals agreed with NCLA that while courts may consider an agency’s views and adopt them when persuasive, prior Sixth Circuit law erred by instructing judges to treat the Sentencing Commission’s commentary as “authoritative.” The court also adopted NCLA’s arguments that mandatory deference raises grave constitutional concerns over due process and the independence of the judiciary. The decision of the Sixth Circuit corrected circuit law and reined in one kind of undue—and unconstitutional—deference.
As a result of today’s decision, Mr. Havis, who was sentenced to 46 months in prison, will most likely get his sentenced reduced by more than half under the recommended Sentencing Guidelines. This decision will also impact hundreds of other criminal defendants within the Sixth Circuit.
“Today the Sixth Circuit forcefully told the U.S. Sentencing Commission that as an administrative agency it cannot establish federal sentencing policy without seeking Congressional approval. The Commission had decided on its own to dramatically increase the presumptive prison sentences for a whole class of federal defendants. This decision not only rebukes the Commission’s policy but will result in the much lower prison sentences that Congress actually approved.” —Caleb Kruckenberg, Litigation Counsel
“NCLA opposes all forms of unconstitutional judicial deference to administrative agencies. Although Stinson deference is less well known than Auer or Chevron deference, it is no less damaging to Americans who are subjected to it. By reversing Sixth Circuit law on this question, the court of appeals has chipped away at unconstitutional judicial deference doctrines. While gratifying, NCLA knows that there is much work left to be done, and we will keep chipping away at unconstitutional judicial deference doctrines until all of them are consigned to history.” —Mark Chenoweth, Executive Director and General Counsel
NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org.
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New Civil Liberties Alliance
April 18, 2019 | NCLA Applauds Sixth Circuit’s Grant of Rehearing en Banc in U.S. v. Havis
Washington, D.C. — The New Civil Liberties Alliance (NCLA) is celebrating a victory in the United States Court of Appeals for the Sixth Circuit, which today granted a petition for rehearing en banc in United States v. Jeffery Havis. NCLA filed an amicus brief in November urging the Court to rehear the case in order to re-examine the circuit’s treatment of “Stinson deference.”
In a now-vacated opinion, the Sixth Circuit originally extended judicial “deference” to commentary found in the U.S. Sentencing Guidelines, even though Congress only votes to accept the guidelines and not the commentary. The ruling extended a 1993 Supreme Court decision, Stinson v. United States, in such a way as to command federal judges to abandon their duty of independent judgment and assign weight to a non-judicial entity’s interpretation of the law when imposing criminal sentences.
NCLA believes that due process and the judicial duty to provide independent judgment absolutely forbid a regime in which courts give automatic weight to a non-judicial entity’s interpretation of the law. While courts may consider an agency’s views and adopt them when persuasive, prior Sixth Circuit law erred by instructing lower federal courts to treat the Sentencing Commission’s mere commentary as “authoritative.” Mandatory deference raises due process and other grave constitutional concerns. Rehearing en banc is well warranted to enable the Sixth Circuit as a whole to correct circuit law and rein in undue—and unconstitutional—deference.
“By granting en banc review, the Sixth Circuit has signaled its willingness to reconsider its prevailing, unconstitutional deference regime. Article III gives federal judges life tenure and salary protection to ensure that judicial pronouncements will reflect a court’s independent judgment rather than the desires of the political branches. And the Due Process Clause forbids judges to display any type of bias in favor of—or against—a litigant when resolving disputes. Yet the judiciary flouts these foundational constitutional commands whenever it ‘defers’ to an agency’s interpretation of the law.” —Caleb Kruckenberg, Litigation Counsel, NCLA
“NCLA is pleased by the Sixth Circuit’s willingness to reconsider its troubling circuit precedent. Whether it travels under the name Chevron, Auer, or Stinson, judicial deference violates defendants’ due process rights. As applied by the panel here, Stinson would require far more than respectful consideration of an agency’s sentencing views. Assuming the en banc Sixth Circuit follows through on today’s grant by fixing circuit law, it will have restored an important due process right of criminal defendants.”
—Mark Chenoweth, Executive Director and General Counsel, NCLA
NCLA is a nonprofit civil rights organization founded by legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org.
New Civil Liberties Alliance
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