Improper Federal Sentencing Enhancements for State Delivery Convictions

The Sixth Circuit, held on June 6, 2019 in the case of United States v. Jeffery Havis, 2019 WL 2376070, that the United States Sentencing Commission (“USSC”) overstepped it’s constitutional authority by opining in the ‘commentary’ sections of the Federal Sentencing Guidelines (“USSG”), that State ‘controlled substance offenses’ including “attempts”, actually qualified as prior “controlled substance offenses” for “career criminal” base offence level enhancement. The actual sentencing guidelines approved by Congress did not specifically promulgate that “attempts” qualified as controlled substance offenses that could be used to reclassify a federal offender as a career criminal at sentencing. New York criminal attorney Ralph Behr sees a window for effected federal defendants to request new sentencing hearings based thereon.

The Havis case will undoubtedly have a dramatic effect on hundreds, if not thousands, of defendants sentenced in Manhattan, Southern District Of New York, and other federal districts. The Havis decision potentially impacts all career criminal enhanced federal defendants sentenced prior to June 6, 2019, based upon prior State controlled substance convictions for delivery. New York criminal attorney Ralph Behr is available for consultation for resentencing for those federal defendants effected by improper enhancements at sentencing, regarding the Havis case or otherwise.

It is coincidental that the Sixth Circuit Havis ruling is consistent with Congressional intent for The First Step Act Of 2018, regarding Congressional intent related to crack cocaine sentencing reductions and prison reform. The Havis decision, however, has the potential to completely wipe out all New York State level deliveries and distributions of controlled substance prior offenses, including crack cocaine, from consideration at federal sentencing and for all times prior to June 6, 2019. That is because the New York Penal Code definition for delivery and distribute is substantially similar to the faulty definition at issue in the Havis case.

Manhattan Federal Lawyer Ralph Behr is available for consultation to discuss the parameters of your prior New York federal sentence that was increased due to a career criminal enhancement based on prior New York State controlled substance offense violation(s); and your entitlement to resentencing under Havis in the Southern District Of New York. This would include firearms sentence enhancements, increased under USSG § 2K2.1(a)(2), (a)(4), the firearm career criminal enhancement, to determine your entitlement to a federal sentence reduction pursuant to Havis. See www.FederalSentencingGuidelines.us Word Version 2018 Federal Sentencing Guidelines at § 2K2, sponsored by www.FederalSentencingAlliance.com The tenets of Havis suggest that it is justiciable to file a Rule 35 Fed. R. Crim. P. Motion To Correct Judgment to remove career criminal enhancement at resentencing, assuming the sentence increase is tied to New York State controlled substance offense(s) used to reclassify the sentencing base offense level to career criminal status that include “attempts” by definition.

Synopsis Of Havis:

Jeffery Havis was convicted of possession of a firearm at level 14, and was enhanced to a career criminal status at level 20 for sentencing, using a prior State delivery charge. Havis’ base offense level at sentencing was increased from level 14 to level 20, pursuant to USSG § 2K2.1(a)(2)(4), based solely on Havis prior State delivery of a controlled substance charge.

Jeffery Havis complained that the State delivery charge, by definition included “attempted delivery”, not recognized by the Federal Sentencing Guidelines career criminal enhancement provision, or approved by Congress, and therefore, Havis’ State delivery conviction could not be used to increase Havis sentence by applying the career criminal guideline enhancement to Havis case. The Sixth Circuit finally agreed on June 6, 2019. Jeffery Havis case has been remanded for resentencing using a base offense level 14, thereby removing Havis career criminal enhancement.

The New York Penal Code Article 33 §§ 3302(7)(10) state that ”"[d]eliver" or "delivery" means the actual, constructive or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.” and “ "[d]istribute" means to deliver a controlled substance, including by means of the internet, other than by administering or dispensing.”

The New York penal code definition of “delivery” is substantially similar to the delivery definition in Havis, that is, both “delivery” and “distribute” include “attempts”. Additionally, the New York definition for “distribute” subsumes the definition of “delivery”, which includes “attempts”. Since the Federal Sentencing Guidelines versions 2018 and prior years did not promulgate “attempts” to be included for prior State controlled substance offense-career criminal enhancement, New York, New York defendants so enhanced improperly should be entitled to resentencing without the career criminal enhancement. These matters are in addition to The First Step Act Of 2018 sentence reductions for crack cocaine already underway. The Havis decision itself may very well prove to be a major cog in the wheel of prison reform for 2019, and sentence reduction effecting many current federal inmates, by default.

Manhattan Lawyer Ralph Behr is ready for consultation to discuss the particulars of your case, potential resentencing, and potential sentence reduction, based upon improperly applied prior New York State controlled substance offense(s), used to enhance your federal sentence by virtue of the application of improper career criminal enhancement to your base level offense at sentencing, pursuant to the Federal Sentencing Guidelines (USSG) versions 2018, and prior years. The USSC will correct these errors for USSG versions 2020, but for now, you should consider how the Havis decision effects your sentencing. Attorney Ralph Behr can assist you with that.