Court Forces Rethink On Federal Sentencing Guidance

By Emma Cueto | June 16, 2019, 8:02 PM EDT

A recent appellate decision on the interpretation of federal sentencing guidelines could have a major impact on people with prior criminal records who are being sentenced for new crimes, some advocates say.

In 2016, Jeffrey Havis was arrested and charged for possessing a firearm despite a past felony conviction. Havis pled guilty to the crime, but then appealed his sentence, arguing that the judge was wrong to rely on an interpretation to the sentencing guidelines that increased the recommended time he served behind bars.

This month, a special panel of the Sixth Circuit Court of Appeals agreed with Havis, saying that the U.S. Sentencing Commission had overstepped its authority when writing the interpretation, and making it possible for Havis’ nearly four-year sentence to be reduced.

“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,” said Caleb Kruckenberg, an attorney with the New Civil Liberties Alliance, which submitted a brief on Havis’ behalf.

“The commission had decided on its own to dramatically increase the presumptive prison sentences for a whole class of federal defendants,” he continued. “[The Sixth Circuit] decision not only rebukes the commission’s policy, but will result in the much lower prison sentences that Congress actually approved.”

The body at the heart of the issue in the Havis case, U.S. Sentencing Commission, is a bipartisan independent agency within the judicial branch.

It was created in the 1980s to make criminal sentences in federal more standardized across the country, and its guidelines help judges determine the appropriate sentencing range for individual offenders. Judges are free to deviate from the guidelines, but they must provide a good reason for doing so.

The U.S. Supreme Court upheld the commission’s commentary guidelines as constitutionally allowed in 1993, saying that the interpretations provided by guidelines were valid as long as they did not go against federal statutes or the Constitution and were not “plainly erroneous.”

Havis, however, argued that in his case, his sentence was affected by a situation the Supreme Court had not considered: an interpretation that he claimed added additional crimes into a particular category without approval from Congress.

Typically, in order to change a guideline, the Sentencing Commission must get input from the public and approval from Congress. However, the commission can also add certain officials comments within the guidelines without going through this process.

In theory, these comments are meant to simply act as an aid to judges, helping judges understand how to read the guidelines or provide context for the rationale behind them.

The particular Sentencing Commission comment that Havis objected to was meant to inform the guidelines that increase a potential sentence if someone has a past conviction for a “controlled substance offense.”

The comment clarifies that controlled substance offenses should include “attempt crimes” such as “attempt to distribute” or similar offenses.

However, Havis argued, nowhere in the official guidelines — the provisions that were subject to congressional approval — do the guidelines say that attempt crimes count as controlled substance offenses in this context. Therefore, he said, his past conviction should not have counted against him as it was an attempt crime.

The government, meanwhile, argued that the comment was binding and noted that the Sixth Circuit had upheld that principle in the past. It also argued that nothing about the comment contradicted the text of the main guidelines.

“The Sentencing Commission has reasonably interpreted the term ‘controlled substance offense’ to include attempts, and [Supreme Court precedent] mandates deference to that interpretation of the guidelines,” the government argued in a brief.

The three-judge Sixth Circuit panel that originally heard the case sided against Havis due to past precedent, though one of the judges wrote in a concurring opinion that the court should revisit the question. The Sixth Circuit then agreed to an en banc hearing, in which all the judges in the circuit weighed in.

The full circuit eventually voted to overturn its past precedent and ruled that the comment used to increase Havis’ sentence should not have been considered by the judge.

“To make attempt crimes a part of [the guidelines], the commission did not interpret a term in the guideline itself — no term in [the text] would bear that construction,” the Sixth Circuit said on June 6. “Rather, the commission used [the comment] to add an offense not listed in the guideline.”

The court noted that comments were not meant to add to guidelines, only to interpret them. “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,” the decision said.

Due to the court’s decision, Havis is eligible to have his 46-month sentence reduced, and Kruckenberg says he expects that Havis will be released, given that he has already served 36 months.

Looking more broadly, though, this is not the first time that courts have weighed in on this particular comment, Kruckenberg said. It’s probably also not the only comment that he thinks oversteps the commission’s authority.

“It’s certainly not the only instance,” Kruckenberg said. “I think the litigation is focused on this one because it comes up a lot [when people are sentenced].”

Not all courts have ruled the same way, however, with some circuits upholding the validity of the comment.

Kruckenberg, whose organization believes that administrative and regulatory agencies like the Sentencing Commission are unconstitutional, said that the New Civil Liberties Alliance plans to keep challenging the comment and others like it.

“We’re really excited that the Sixth Circuit has come to the right conclusion, but this is an issue nationwide that, outside of the Sixth Circuit, is [affecting] criminal defendants every single day,” he said.

Havis’ public defender declined to comment. Counsel for the government did not respond to a request for comment.

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--Editing by Katherine Rautenberg.