When Judicial Deference Erodes Liberty: The Shortcomings of Stinson v. United States and its Implications on Judicial Ethics

• Author: Cynthia M. Karnezis
• Position: J.D., Georgetown University Law Center (expected May 2022); B.A., Georgetown University (2019)
• Pages: 1073-1093

When Judicial Deference Erodes Liberty: The

Shortcomings of Stinson v. United States and its

Implications on Judicial Ethics

CYNTHIA M. KARNEZIS*

“[T]he eternal struggle in the law between constancy and change is largely a

struggle between history and reason, that is, between past reason and present

needs.”

1

—Justice Felix Frankfurter

INTRODUCTION

In 2017, Jeffrey Havis pled guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1).

2

Judge Travis McDonough sentenced Havis to

46 months after enhancing his base level from 14 to 20 to account for a 17-year-

old conviction for a “controlled substance offense.”

3

The career offender defini-

tion in the Sentencing Guidelines explains “controlled substance offense” as an

offense under state law that prohibits the “distribution, or dispensing of a con-

trolled substance.”

4

The commentary further provides: “‘controlled substance

offense’ include[s] the offenses of aiding and abetting, conspiring, and attempting

to commit such offenses.”

5

Havis objected in the District Court, arguing that because the previous

Tennessee conviction under the state statute encompassed the attempt to sell co-

caine, under the “categorical approach,”

6

it could not be used to increase his base

* J.D., Georgetown University Law Center (expected May 2022); B.A., Georgetown University (2019).

Thank you to Professor Glen Nager for his valuable guidance, time, and support as I planned this Note. © 2021,

Cynthia Karnezis.

1. Felix Frankfurter & Learned Hand, THE LAWYER AND THE PUBLIC 7–8 (The Council on Legal Education

and Admissions to the Bar of the American Bar Association eds.) (1933).

2. United States v. Havis, 927 F.3d 382, 383 (6th Cir. 2019).

3. Id. at 384; see also U.S. SENT’G GUIDELINES MANUAL §§ 2K2.1(a)(4), (a)(6) (U.S. Sent’g Comm’n 2018)

[hereinafter U.S.S.G].

4. U.S.S.G § 4B1.2(b); see also U.S.S.G § 4B1.1(a) (“A defendant is a career offender if (1) the defendant

was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the

instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and

(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance

offense.”) (emphasis added).

5. Id. § 4B1.2 cmt. n.1.

6. The Sixth Circuit applies the categorical approach in sentencing, see United States v. Woodruff, 735 F.3d

445, 449 (6th Cir. 2013), which compares the elements of the Tennessee statute with the “controlled substance

offense” under the Guidelines. See Taylor v. United States, 495 U.S. 575, 600–02 (1990). If the Tennessee

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level offense from 14 to 20 for purposes of the career offender enhancement.

7

The District Court rejected his argument based on the Sixth Circuit’s precedent in

United States v. Evans,

8

which already interpreted the Guidelines’ definition of

“controlled substance offense” to include attempt crimes.

9

Therefore, under the

categorical approach, the Tennessee statute criminalized the same conduct as the

Guidelines, and the District Court was compelled to conclude that the enhance-

ment properly applied to Havis.

10

On appeal to the Sixth Circuit, his argument

failed again for one reason: the three judge panel could not “grant Havis relief

without overruling Evans’s reliance on the very same commentary.”

11

Finally, in 2019, the Sixth Circuit sitting en banc reheard his case and abro-

gated Evans on the grounds that Havis raised a narrow objection that the parties

did not raise in Evans

12

: that the Sentencing Commission impermissibly added

attempt crimes to the list of “controlled substance offenses” through Application

Note 1 when the career offender Guideline text does not include attempt.

13

The

en banc Court held: “the text of [the guideline] controls, and it makes clear that

attempt crimes do not qualify as controlled substance offenses,” and remanded to

the district court for appropriate resentencing.

14

Havis’s three-year-long fight for a proportionate sentence results from the federal

courts’ strained attempts to apply the Supreme Court’s 1993 decision in Stinson v.

United States.

15

Stinson holds that Guideline Commentary (“Commentary”) binds

judges unless it violates the Constitution, a federal statute, or embraces a plainly er-

roneous reading of the guideline.

16

Nevertheless, the Court has never clarified

Stinson’s scope nor explained how it operates in situations like Havis’s when defer-

ence to the Commentary enhances a defendant’s sanctions. Further, federal judges

statute criminalizes the same, or a narrower, range of conduct than the Guidelines, the District Court did not err

in sentencing Havis.

7. See United States v. Havis, 927 F.3d 382, 384 (6th Cir. 2019).

8. 699 F.3d 858 (6th Cir. 2012).

9. Id. at 868; Evans was convicted for cocaine trafficking conviction under Ohio Revised Code § 2925.03

(A)(1), but “[b]ecause the Ohio court documents do not indicate whether Evans was convicted for selling co-

caine or offering to sell cocaine, the [court] should look to the lesser of the two offenses, an offer to sell cocaine,

to determine whether this offense categorically qualifies as a controlled substance offense.” Id. at 866.

10. United States v. Havis, 907 F.3d 439, 441–42 (6th Cir. 2018).

11. Id. at 442 (“But save an en banc decision of this court or an intervening decision of the Supreme Court,

we must follow Evans nonetheless.”).

12. Regarding Application Note 1, Evans solely raised that his cocaine trafficking conviction did not catego-

rically qualify as a controlled substance offense. See United States v. Evans, 699 F.3d 858, 861 (6th Cir. 2012).

Nevertheless, the court held that because his conviction under the Ohio Statute “require[d] an intent to sell a

controlled substance, such a conviction under the statute for an offer to sell is properly considered an attempt to

transfer a controlled substance, which is a ‘controlled substance offense’ under the Guidelines.” Id. at 867 (cit-

ing U.S.S.G. § 4B1.2, Application Note 1).

13. United States v. Havis, 927 F.3d 382, 384 (6th Cir. 2019).

14. Id. at 387.

15. 508 U.S. 38 (1993).

16. Id. at 47.

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