Good Faith and Probable Cause: In another en banc decision, Judge John Rogers and eleven others held in United States v. Christian,that probable cause existed for Grand Rapids law enforcement to search the house of Tyrone Christian. As the affidavit detailed Christian’s four previous felony drug convictions, two previous drug busts at his house, and a confidential informant’s tip that Christian was selling again, the question of probable cause was “really not even close” for the full court’s majority.

But Judge Amul Thapar—joined by Judges Nalbandian, Murphy and Readler—concurred. “[A]t the very least, the officers executed that search in good faith.” The concurrence took aim at the Sixth Circuit precedent of United States v. Laughton, which restricts “good-faith arguments . . . to the language of the affidavit.” This is too restrictive: because the Fourth Amendment protects people from police misconduct, the good-faith inquiry should also focus on police misconduct, considering “all of the circumstances,” not just the four corners of the affidavit. Thus, Judge Thapar argued overruling Laughton would better align the Sixth Circuit with Supreme Court precedent.

Judge Ronald Gilman, joined by five others, dissented. As the affidavit relied on an otherwise unrelated drug-possession arrest near Christian’s house, the majority’s approach “significantly lower[ed] the burden for the government to show probable cause in areas where drugs are prevalent.”

Sentencing Guidelines commentary: With the full force of an en banc, per curiam opinion, the Sixth Circuit held in United States v. Havis, that the commentary to the Sentencing Commission Guidelines is off-limits for establishing independent forms of criminal liability.

The Commission is tasked with issuing the Guidelines, which impose some limits on a sentencing court’s discretion. Judges can deviate, but not by much. Unlike the Guidelines themselves, however, commentary to the Guidelines never passes through congressional review or notice and comment. The commentary lacks any independent legal force. In other words, it is not the law.

One feature of the Guidelines is that they provide for sentencing enhancements based on criminal history.  In this case, a sentencing judge used the commentary to the Guidelines to increase the defendant’s sentencing level based on an attempt crime–over doubling the defendant’s sentence.

The text of the Guidelines themselves, however, says nothing about attempt crimes.  With no term in the Guidelines to bear the Commission’s construction, the en banc Sixth Circuit held that the Commission lacked the power to add an offense and was entitled to no deference for this use of the commentary. Were it otherwise, said the Court, “the institutional constraints that make the Guidelines constitutional in the first place—congressional review and notice and comment— would lose their meaning.”