In United States v. Havis, the en banc Sixth Circuit held, unanimously, that a Tennessee state offense criminalizing the attempted delivery of a controlled substance was not a “controlled substance offense,” for purposes of U.S.S.G. §§ 2K2.1 and 4B1.2. ___ F.3d ___, 2019 WL 2376070 (6th Cir. June 6, 2019) (en banc). Overruling prior Circuit precedent, the Court explained that attempts appear only in Application Note 1 to § 4B1.2(b), not in the text of the Guideline itself. Consequently, the inclusion of attempts was not an interpretation of § 4B1.2(b)’s text, to which deference would be owed under Stinson v. United States, 508 U.S. 36 (1993), but rather an addition to § 4B1.2(b)’s text, due no deference at all:
To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in the guideline itself—no term in § 4B1.2(b) would bear that construction. Rather, the Commission used Application Note 1 to add an offense not listed in the guideline. But application notes are to be “interpretations of, not additions to, the Guidelines themselves.” 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 Commission’s use of commentary to add attempt crimes to the definition of “controlled substance offense” deserves no deference. The text of § 4B1.2(b) controls, and it makes clear that attempt crimes do not qualify as controlled substance offenses.
Havis, 2019 WL 2376070, at *3 (cleaned up).
Havis aligns with United States v. Winstead, 890 F.3d 1082, 1091 (D.C. Cir. 2018), which holds that § 4B1.2(b) does not include inchoate offenses.
Unfortunately, here in the Second Circuit, we’re faced with a contrary precedent, United States v. Jackson, 60 F.3d 128 (2d Cir. 1995), which holds that Application Note 1’s inclusion of inchoate offenses is binding:
We begin by noting that even though the broadened definition of “controlled substance offenses” articulated in the commentary does not appear in an actual guideline, it is binding authority. Commentary “that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, ––––, 113 S. Ct. 1913, 1915 (1993); see also U.S.S.G. § 1B1.7 (Failure to follow commentary that interprets or explains the application of a guideline “could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal.”). Application Note 1 is authoritative because it interprets and explains § 4B1.2 by listing offenses that constitute “controlled substance offenses” and “crimes of violence.” See Stinson, 508 U.S. at ––––, 113 S. Ct. at 1920 (finding commentary to § 4B1.2, which stated that “the offense of unlawful possession of a firearm by a felon” was not a “crime of violence,” to be interpretive and therefore authoritative). As we explain below, this interpretation is not inconsistent with, let alone a violation of, 28 U.S.C. § 994(h) or any other statute. Consequently, the commentary is binding authority.
Jackson, 60 F.3d at 131.
Notwithstanding Jackson, it is worth preserving an objection to the use of inchoate offenses as “controlled substance offenses” under § 4B1.2(b), and “crimes of violence” under § 4B1.2(a)—with the caveat that § 4B1.2(a)(1)’s force clause mentions attempts (but not conspiracies) in the text. Given the Circuit split, the issue could receive Supreme Court review. And of course, you can cite Winstead and Havis to support variances.