United States v. Lewis ( 2020 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 18-1916
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    VAUGHN LEWIS,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Patti B. Saris, U.S. District Judge]
    Before
    Torruella, Thompson, and Kayatta,
    Circuit Judges.
    Inga S. Bernstein, with whom Zoraida Fernández and Zalkind
    Duncan & Bernstein LLP were on brief, for appellant.
    Mark T. Quinlivan, Assistant United States Attorney, with
    whom Andrew E. Lelling, United States Attorney, was on brief, for
    appellee.
    June 16, 2020
    KAYATTA, Circuit Judge.                 Vaughn Lewis was sentenced to
    108 months' imprisonment for conspiracy to distribute cocaine
    after the district court applied a career-offender enhancement.
    Under § 4B1.1(a) of the United States Sentencing Guidelines (the
    "Sentencing       Guidelines"),         this       enhancement     applies      where     a
    defendant    has        at   least     two    prior     felony     convictions       of   a
    "controlled       substance       offense."           U.S.S.G.     § 4B1.1(a).          The
    commentary     to       § 4B1.2       provides      that    such   offenses       include
    conspiracies       and       other    inchoate       crimes.       Because      we    have
    previously    held        this    commentary       authoritative       in     defining    a
    "controlled substance offense," we affirm Lewis's sentence.
    I.
    A.
    Lewis's charges stem from an investigation into a drug-
    trafficking       conspiracy          led    by      Luis     Rivera     in    Brockton,
    Massachusetts.      1        Police     began      investigating       Rivera's      drug-
    supplying operations following a tip provided by a cooperating
    witness.
    On         February 22,         2016,      the     police        intercepted
    communications between Lewis and Rivera in which Lewis arranged to
    purchase sixty-two grams of cocaine, asking for the "same thing as
    1 Rivera was sentenced to 120 months of imprisonment with five
    years of supervised release and was assessed a $5,000 fine.
    -2-
    last time."        In another intercepted communication, Rivera told
    Lewis to meet "where you seen me last" to complete the transaction.
    While     surveilling      the   address    provided,       police    observed    a
    transaction between Rivera and an unidentified individual driving
    a gray 2007 Toyota Camry, which turned out to be registered to
    Lewis's girlfriend, with whom Lewis lived at the time.
    On    February 26,     2016,    law    enforcement       intercepted
    another communication between Rivera and Lewis about an additional
    purchase.     The police identified Lewis, who was driving a black
    2010 Nissan also registered to his girlfriend, when he met with
    Rivera.
    On June 9, 2016, police executed a search and arrest
    warrant at Lewis's apartment.          In a storage area associated with
    his apartment, the police found "small amounts of drugs (including
    cocaine)" as well as "drug paraphernalia," such as a bag containing
    scales and packaging material.         The police additionally uncovered
    a loaded revolver, three dozen rounds of ammunition, and personal
    documents belonging to Lewis.          Lewis denied ownership of all the
    items   seized      from   the   storage    area   except    for     his   personal
    documents.        He insisted that the revolver was not his, although
    he did not contest the firearm enhancement for purposes of his
    Sentencing Guidelines calculation.
    -3-
    B.
    On   July 13,      2016,      a    federal    grand      jury   returned   a
    one-count superseding indictment charging Lewis with conspiracy to
    distribute      cocaine      powder    in       violation    of   21    U.S.C.    §§ 846,
    841(a)(1), and 841(b)(1).              Lewis pleaded guilty to the offense,
    which       carries    a     statutory      maximum        term   of     twenty    years'
    imprisonment.
    The Probation Office's Presentence Investigation Report
    ("PSR") assigned a base offense level of sixteen, pursuant to
    U.S.S.G. § 2D1.1(c)(12), which it increased by two levels under
    U.S.S.G. § 2D1.1(b)(1) on account of the discovered revolver,
    yielding an adjusted offense level of eighteen.                           The PSR also
    determined that Lewis qualified as a career offender under the
    Sentencing Guidelines because:                   He had two prior Massachusetts
    felony convictions for controlled substance offenses; he was over
    the age of eighteen when he committed the instant offense; and the
    instant      offense       was   a   "controlled      substance        offense."      See
    U.S.S.G. § 4B1.1(a), (b)(3).                The PSR used as predicates Lewis's
    1998 conviction for two counts of unlawful distribution of cocaine2
    as well as his 2010 conviction for possession with intent to
    2
    Lewis was sentenced to three to four years of imprisonment
    for these charges and was released on February 2, 2002.
    -4-
    distribute cocaine and distribution of cocaine.3                    Applying the
    career-offender enhancement increased Lewis's offense level to
    thirty-two.       Finally, the PSR applied a three-level downward
    adjustment      for   "acceptance    of   responsibility"       under    U.S.S.G.
    § 3E1.1, which brought Lewis's total offense level down to twenty-
    nine.       Based on Lewis's criminal history category ("CHC") of IV,
    the PSR calculated Lewis's Guidelines sentencing range ("GSR") to
    be 151 to 188 months of imprisonment.
    Lewis objected to the PSR on several grounds, most
    notably by challenging his career-offender classification.                     He
    argued that his instant conspiracy conviction could not count as
    a "controlled substance offense" under the Sentencing Guidelines
    and that existing circuit precedent to the contrary should be
    reconsidered.
    On September 7, 2018, the district court sentenced Lewis
    to 108 months of imprisonment to be followed by three years of
    supervised       release.   The     district      court   adopted     the   PSR's
    recommendation        classifying   Lewis    as    a   career   offender    under
    U.S.S.G. § 4B1.1.       Applying circuit precedent, the court overruled
    Lewis's objection to the career-offender designation.                   It agreed
    that Lewis's age as well as his instant conviction (conspiracy to
    3
    Lewis was sentenced to five years of imprisonment for this
    charge and was released on July 12, 2013.
    -5-
    distribute    cocaine)   and    predicate   offenses      (two   prior    state
    drug-trafficking       offenses)      triggered     the     career-offender
    enhancement, thus bringing his GSR to a tally of 151 to 188 months
    of imprisonment.4
    The   district   court   stressed    the   seriousness      of   the
    offense, including the presence of the gun, and stated that
    "[r]egardless of whether [Lewis is] a career offender or not, [he
    has] a history of recidivism," and it needed to "send . . . a very
    clear message . . . that [Lewis] cannot continue to sell drugs."
    The court nevertheless varied Lewis's sentence down to 108 months
    because his first predicate offense, the 1998 drug conviction,
    involved the sale of $40-worth of drugs when he was seventeen.
    The district court judge also stated that "if career offender does
    not apply, I want this to come back to me to resentence because I
    am using career offender as an anchor."5
    4  The parties agree that without the career-offender
    designation Lewis's GSR would have been thirty-seven to forty-six
    months of imprisonment.
    5  Relatedly, the court noted that because Lewis was seeking
    to vacate his second predicate offense (the 2009 drug conviction),
    which was then on appeal before the Massachusetts Appeals Court,
    it wanted the case returned for resentencing if he prevailed.
    However, the Appeals Court has since affirmed the denial of Lewis's
    motion to withdraw his guilty plea to the state-law charge of
    possession of heroin with the intent to distribute, thereby
    foreclosing this avenue for resentencing.      See Commonwealth v.
    Lewis, 
    136 N.E.3d 1226
    (Mass. App. Ct. 2019).
    -6-
    On September 14, 2018, Lewis timely appealed.
    II.
    We review de novo the district court's interpretation
    and application of the Sentencing Guidelines.                    United States v.
    Tavares, 
    705 F.3d 4
    , 24 (1st Cir. 2013).
    When determining whether to apply a career-offender
    enhancement under the Sentencing Guidelines, sentencing courts
    adhere to §§ 4B1.1 and 4B1.2 of the Sentencing Guidelines and their
    corresponding       enabling     statute,       28   U.S.C.    § 994(h).     Under
    § 4B1.1(a),     a    defendant    qualifies      as    a    "career   offender"    if
    (1) "the defendant was at least eighteen years old at the time
    [he] committed the instant offense"; (2) the instant offense "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" -- known as predicates -- for "either a crime
    of   violence       or   a   controlled     substance       offense."      U.S.S.G.
    § 4B1.1(a).     Section 4B1.2(b) of the Sentencing Guidelines defines
    the term "controlled substance offense" as follows:                   [A]n offense
    under federal or state law, punishable by imprisonment for a term
    exceeding   one      year,    that   prohibits        the   manufacture,   import,
    export, distribution, or dispensing of a controlled substance
    . . . or the possession of a controlled substance . . . with intent
    to manufacture, import, export, distribute, or dispense.
    Id. -7- §
    4B1.2(b).6      Crucially for this case, Application Note 1 of the
    commentary to § 4B1.2, adopted by the United States Sentencing
    Commission (the "Sentencing Commission"), states that for purposes
    of    applying    the    career-offender        enhancement,       both     crimes   of
    violence and controlled substance offenses "include the offenses
    of aiding and abetting, conspiring, and attempting to commit such
    offenses."
    Id. § 4B1.2,
    cmt. n.1.7
    Lewis    raises     five      arguments        as     to      why     the
    career-offender enhancement nevertheless should not apply in his
    case:       First, Application Note 1 is inconsistent with the text of
    the     Sentencing      Guidelines     and      their    enabling     statute,       and
    therefore        following       the    Application          Note         amounts     to
    unconstitutional        and   "[u]nchecked           . . .   [d]eference       to    the
    Commission's [i]nterpretation of its [o]wn [r]ules."                      Second, even
    if Application Note 1 is not inconsistent with the definition of
    "controlled       substance      offense"       in    § 4B1.2,      the     Sentencing
    Commission exceeded its rulemaking authority under § 994(h) by
    "enlarg[ing] the definition of 'controlled substance offenses' to
    6
    By contrast, the definition of "crime of violence" in the
    Sentencing Guidelines contemplates the use or "attempted use . . .
    of physical force" in its force clause.             See U.S.S.G.
    § 4B1.2(a)(1).
    7
    See U.S.S.G. amend. 268 (Nov. 1, 1989). Six years later,
    the Sentencing Commission re-promulgated the Application Note 1
    without change. See U.S.S.G. amend. 528 (Nov. 1, 1995).
    -8-
    include conspiracies."        Third, his state offenses do not count as
    predicates for a career-offender enhancement.                Fourth, in the
    event       Application   Note 1   commands    deference,    his   conspiracy
    conviction is a categorical mismatch with the generic Sentencing
    Guidelines conspiracy.       And fifth, the district court erred in not
    acknowledging that it could vary downwardly based on a disagreement
    with the policy underlying § 4B1.2.
    Lewis's first two arguments, and the additional points
    he makes in support of those arguments,8 run headfirst into our
    prior holdings that "controlled substance offenses" under § 4B1.2
    include       so-called   inchoate   offenses    such   as   conspiring   to
    distribute controlled substances.           See United States v. Piper, 
    35 F.3d 611
    (1st Cir. 1994); United States v. Fiore, 
    983 F.2d 1
    (1st
    Cir. 1991), abrogated on other grounds by United States v. Giggey,
    
    551 F.3d 27
    , 28 (1st Cir. 2008) (en banc) (reversing course on
    whether burglary of something other than a dwelling is a predicate
    offense); see also United States v. Nieves-Borrero, 
    856 F.3d 5
    (1st Cir. 2017) (holding that following Piper was not plain error).
    8
    Lewis maintains that his state drug-trafficking offenses
    do not count as predicates for a career-offender enhancement
    because they are not specifically listed as controlled substance
    offenses triggering sentencing at or near the maximum under
    § 994(h), and that Application Note 1 violates the rule of lenity,
    due process, and the separation of powers. These arguments are
    also foreclosed by our circuit precedent. See United States v.
    Piper, 
    35 F.3d 611
    , 619-20 (1st Cir. 1994).
    -9-
    In Fiore, we encountered as a "question of first impression" the
    issue of whether a prior conviction for conspiracy could qualify
    as   a       predicate    offense   for    purposes    of    the    career-offender
    provisions of the Sentencing 
    Guidelines. 983 F.2d at 1
    , 4.        The
    defendant in that case contended that his prior convictions for
    conspiracy to violate a Rhode Island controlled substance act and
    conspiracy to break and enter a commercial structure did not
    qualify as predicate offenses under the Sentencing Guidelines'
    career-offender provisions.
    Id. at 2.
        We held that they did,
    explaining that "[i]n general, we will defer to the Commission's
    suggested interpretation of a guideline provision unless [that]
    position [was] arbitrary, unreasonable, inconsistent with the
    guideline's text, or contrary to law."                Id.9
    In Piper, we again encountered a challenge to whether a
    conspiracy conviction qualifies as a controlled substance offense.
    The defendant argued both that Application Note 1 was inconsistent
    with         the    career-offender   guideline       and    that    inclusion    of
    9We   further    explained   that   Application    Note 1
    "implement[ed] [the] categorical approach in a sensible fashion,"
    and explained that Taylor v. United States, 
    495 U.S. 575
    (1990),
    which adopted a "'formal categorical approach' for determining
    whether an offense was a violent felony" for purposes of the Armed
    Career Criminal Act, was "entirely consistent" with the Sentencing
    Commission's approach under the career-offender guideline, and
    that it allows consideration of the object of the conspiracy in
    its analysis. 
    Fiore, 983 F.2d at 3
    .
    -10-
    conspiracy    exceeded      the     Sentencing      Commission's        statutory
    
    authority. 35 F.3d at 617
    .          As to the first claim, we applied
    Stinson v. United States, 
    508 U.S. 36
    , 45 (1993).                 
    Piper, 35 F.3d at 617
    .    In Stinson, the Supreme Court held that the Sentencing
    Guidelines   commentary     constitutes      the    Sentencing      Commission's
    "interpretation of its own legislative rules," and that so long as
    it does not "violate the Constitution or a federal statute, it
    must be given 'controlling weight unless it is plainly erroneous
    or inconsistent with the [the 
    Guidelines].'" 508 U.S. at 45
    (quoting Bowles v. Seminole Rock & Sand Co., 
    325 U.S. 410
    , 414
    (1945)).     Under   that   framework,       if    any    inconsistency    arises
    between the commentary and the guideline it interprets -- i.e., if
    "following one will result in violating the dictates of the other"
    -- the guideline supersedes the commentary.
    Id. at 43.
        We held
    that a conviction for conspiracy to possess with the intent to
    distribute over one hundred kilograms of marijuana could serve as
    a triggering offense for career-offender purposes so long as a
    "crime of violence" or a "controlled substance offense" was the
    object of the conspiracy.         
    Piper, 35 F.3d at 613
    , 619.        We reasoned
    that "[b]ecause [Application Note 1] neither excludes any offenses
    expressly enumerated in the guideline, nor calls for the inclusion
    of any offenses that the guideline expressly excludes, there is no
    inconsistency"   between     the     two.
    Id. at 617;
      see   also
    id. -11- (reasoning
    that Application Note 1 "comports sufficiently with the
    letter, spirit, and aim of the guideline to bring it within the
    broad   sphere     of    the    Sentencing        Commission's         interpretive
    discretion").
    We also determined in Piper that Application Note 1 did
    not "contravene[] 28 U.S.C. § 994(h)."
    Id. at 617–18.
         We based
    this conclusion on our understanding that the legislative history
    showed that Congress intended § 994(h) to be "a floor[] describing
    the irreducible minimum that the Sentencing Commission must do by
    way of a career offender guideline," not "a ceiling" of what
    offenses may be included.
    Id. at 618.
    Finally, in Nieves-Borrero we relied on Piper to hold
    that it was not plain error for the district court to count a
    conviction for the crime of attempt to possess with intent to
    distribute    a   controlled     substance       as   a   "controlled    substance
    offense" under the Sentencing 
    Guidelines. 856 F.3d at 9
    .
    This circuit precedent forecloses Lewis's arguments as
    to the authority of Application Note 1, including his contention
    that Application Note 1 is inconsistent with the text of the
    career-offender guideline, and that its promulgation exceeded the
    Sentencing    Commission's      statutory        authority     under    28   U.S.C.
    § 994(h).      Under    the    "law   of   the    circuit"     doctrine,     "newly
    constituted panels in a multi-panel circuit court are bound by
    -12-
    prior panel decisions that are closely on point."       United States
    v. Santiago-Colón, 
    917 F.3d 43
    , 57 (1st Cir. 2019) (quoting United
    States v. Wurie, 
    867 F.3d 28
    , 34 (1st Cir. 2017)).
    Two exceptions exist to the law of the circuit doctrine,
    neither of which applies to Lewis's case.        We recognize a first
    exception when "[a]n existing panel decision [is] undermined by
    controlling authority, subsequently announced, such as an opinion
    of the Supreme Court, an en banc opinion of the circuit court, or
    a statutory overruling."     Williams v. Ashland Eng'g Co., 
    45 F.3d 588
    , 592 (1st Cir. 1995).     A second exception applies "in those
    'rare instances in which authority that postdates the original
    decision, although not directly controlling, nevertheless offers
    a sound reason for believing that the former panel, in light of
    fresh   developments,     would   change   its   collective   mind.'"
    
    Santiago-Colón, 917 F.3d at 57-58
    (quoting 
    Wurie, 867 F.3d at 34
    ).
    These "exceptions to the law of the circuit doctrine are narrowly
    circumscribed" to preserve the "stability and predictability"
    essential to the rule of law.     United States v. Barbosa, 
    896 F.3d 60
    , 74 (1st Cir. 2018); see also Kisor v. Wilkie, 
    139 S. Ct. 2400
    ,
    2422 (2019) ("Adherence to precedent is 'a foundation stone of the
    rule of law.'" (quoting Michigan v. Bay Mills Indian Cmty., 
    572 U.S. 782
    , 798 (2014))).
    There is plainly no subsequent contrary controlling
    -13-
    authority on the question at hand.                Neither our court nor the
    Supreme Court has considered the relationship between § 4B1.2 and
    Application    Note 1    since     our    decisions   in    Fiore,    Piper,     and
    Nieves-Borrero.       So the first exception to the law of the circuit
    doctrine cannot apply here.
    Lewis,    therefore,        relies   primarily    on     the   second
    exception.     He submits that the Supreme Court's recent decision
    in Kisor v. Wilkie, 
    139 S. Ct. 2400
    , which issued three months
    after Lewis filed his opening brief in this appeal, compels us to
    reexamine    our   precedent. 10     In     his   view,    Kisor,    even   if   not
    directly controlling, "offers a sound reason for believing that
    [our] former panel[s], in light of fresh developments, would change
    10 Lewis also argues that the Supreme Court's decision in
    United States v. LaBonte, 
    520 U.S. 751
    (1997), casts doubt on
    Piper's statutory holding that the Sentencing Commission may rely
    on its "lawfully delegated powers" under § 994(a) to include
    offenses in the career-offender guideline beyond those listed in
    § 994(h). 
    Piper, 35 F.3d at 618
    (holding that § 994(h) sets a
    "floor" and not a "ceiling"). But LaBonte addressed an entirely
    different issue: the meaning of § 994(h)'s direction to the
    Sentencing Commission to prescribe a career-offender penalty "at
    or near the statutory 
    maximum." 520 U.S. at 752
    –53.       In
    interpreting that language, the Court applied the principle,
    established long before Piper, that the Sentencing Commission
    cannot adopt a guideline that conflicts with the plain text of the
    enabling statute. See
    id. at 757.
    As such, nothing in LaBonte
    undermines our holding in Piper, which itself recognized "the
    primacy of the statute" and considered its text in light of its
    legislative 
    history. 35 F.3d at 617
    n.3, 618.
    -14-
    [their] collective mind[s]."        
    Santiago-Colón, 917 F.3d at 57-58
    (quoting 
    Wurie, 867 F.3d at 34
    ).         We disagree.
    In Kisor, the Supreme Court considered, but rejected, a
    challenge to the Auer/Seminole Rock doctrine, which reflects the
    long-standing    practice    of   deferring      to   "agencies'   reasonable
    readings of genuinely ambiguous regulations," 139 S. Ct. at 2408,11
    and which serves in part as the foundation for our circuit's prior
    precedents concerning Application Note 1.             See 
    Piper, 983 F.2d at 617
    (citing Stinson, 
    508 U.S. 36
    (citing Seminole 
    Rock, 325 U.S. at 414
    )).     See generally Auer v. Robbins, 
    519 U.S. 452
    (1997);
    Seminole 
    Rock, 325 U.S. at 410
    .          It is nevertheless fair to say
    that Kisor sought to clarify the nuances of judicial deference to
    agency interpretations of regulations.                In the Court's words,
    Kisor aims to recall the limits "inherent" in the Auer/Seminole
    Rock doctrine and to "restate, and somewhat expand on, those
    principles."
    Id. at 2414–15.
        As the Court put it, when reviewing
    an agency's interpretation of its own regulation, "a court should
    not afford Auer deference unless the regulation is genuinely
    ambiguous,"    and   after   deploying     the   full   interpretive   "legal
    11 In Kisor, the Supreme Court considered deference afforded
    by the Federal Circuit to the Board of Veterans' Appeals'
    interpretation of the meaning of the term "relevant" records in a
    VA regulation providing retroactive benefits. 
    See 139 S. Ct. at 2423
    .
    -15-
    toolkit" to "resolve . . . seeming ambiguities out of the box."
    Id. at 2415.
      Then, "[i]f genuine ambiguity remains," a court must
    ensure that "the agency's reading [is] 'reasonable,'"
    id. (quoting Thomas
    Jefferson Univ. v. Shalala, 
    512 U.S. 504
    , 515 (1994)),
    meaning that it "must come within the zone of ambiguity the court
    has identified after employing all its interpretive tools,"
    id. at 2416.
    We see nothing in Fiore, Piper, and Nieves-Borrero to
    indicate that the prior panels in those cases viewed themselves as
    deferring to an application note that strayed beyond the zone of
    ambiguity in the Sentencing Guidelines.      Nor did those panels
    suggest that they regarded Auer deference as limiting the rigor of
    their analysis of whether the guideline was ambiguous.   And it is
    also plain that those panels viewed their analyses as considering
    both the letter of the text and its purpose.    So we fail to find
    a sound basis for concluding with sufficient confidence that our
    prior panels would have found in Kisor any reason to "'change
    [their] collective mind[s]'" with respect to the deference owed to
    Application Note 1.   
    Wurie, 867 F.3d at 35
    (quoting United States
    v. Rodríguez, 
    527 F.3d 221
    , 225 (1st Cir. 2008)).   At least three
    circuits have, post-Kisor, adhered to prior circuit holdings akin
    to our own concerning § 4B1.2 and inchoate offenses.   See, United
    States v. Tabb, 
    949 F.3d 81
    , 87 (2d Cir. 2020); United States v.
    -16-
    Lovelace, 794 Fed. App'x 793, 795 (10th Cir. 2020); United States
    v. Crum, 
    934 F.3d 963
    , 965 (9th Cir. 2019) (per curiam), reh'g
    denied, No. 17-302 (9th Cir. Oct. 29, 2019), cert denied, No. 19-
    7811, 
    2020 WL 1496759
    (Mar. 30, 2020) (mem.).                     And Kisor itself
    expressly    denied     any    intent     to     "cast    doubt   on    many   settled
    constructions of rules" and inject "instability into so many areas
    of 
    law." 139 S. Ct. at 2422
    .           Simply put, we do not find anything
    in our prior opinions suggesting that those panels understood
    themselves as straying beyond the zone of genuine ambiguity in
    deeming Application Note 1 consistent with § 4B1.2.
    Lewis also points us to United States v. Soto-Rivera,
    
    811 F.3d 53
    (1st Cir. 2016), another case which he argues casts
    doubt on the durability of the Fiore, Piper, and Nieves-Borrero
    panel decisions.       The court's holding in Soto-Rivera, however, was
    necessarily     limited       to    the    issue    presented      there:      whether
    Application Note 1 properly categorized the offense of being a
    felon in possession of a machine gun as a "crime of violence" under
    § 4B1.2(a) "shorn of the residual clause."                  
    Soto-Rivera, 811 F.3d at 54
    , 60–62.        The court wrote that without the residual clause,
    "[t]here    [was]     simply       no   mechanism    or    textual      hook   in    the
    [g]uideline that allow[ed] us to import offenses not specifically
    listed     therein    into     §    4B1.2(a)'s      definition         of   'crime   of
    violence.'"
    Id. at 60.
             But it had no need to address § 4B1.2(b)
    -17-
    or the portion of Application Note 1 that defines conspiracies as
    "controlled substance offense[s]."           So, Soto-Rivera could not have
    modified Piper, Fiore, or Nieves Borrero.
    Finally, Lewis calls our attention to the D.C. Circuit's
    decision in United States v. Winstead, 
    890 F.3d 1082
    (D.C. Cir.
    2018),12 the Sixth Circuit's decision in United States v. Havis,13
    
    927 F.3d 382
    (6th Cir. 2019) (en banc), and the Ninth Circuit's
    decision in Crum, 
    934 F.3d 963
    .              These cases do not constitute
    controlling authority in this circuit.              See Igartúa v. United
    States, 
    626 F.3d 592
    , 604 (1st Cir. 2010) (explaining that the
    second    exception    to   the    law-of-the-circuit   doctrine   has   been
    interpreted narrowly and should be applied when recent Supreme
    Court precedent calls into question a prior panel opinion); United
    States v. Lewis, 
    517 F.3d 20
    , 24 (1st Cir. 2008) ("The law of the
    circuit rule does not depend on whether courts outside the circuit
    march     in    absolute    lock   step   with   in-circuit   precedent.").
    12 In Winstead, the D.C. Circuit held that the inclusion of
    inchoate offenses in Application Note 1 was inconsistent with
    § 4B1.2(b), reasoning that "Section 4B1.2(b) presents a very
    detailed 'definition' of controlled substance offense that clearly
    excludes inchoate offenses," and applying the expressio unius est
    exclusio alterius 
    canon. 890 F.3d at 1091
    .
    13  In Havis, the Sixth Circuit held that "[t]he text of
    § 4B1.2(b) controls, and it makes clear that attempt crimes do not
    qualify as controlled substance offenses," after finding that "the
    Commission used Application Note 1 to add an offense not listed in
    the 
    guideline." 927 F.3d at 386-87
    .
    -18-
    Moreover, these cases raise arguments that, in any event, mirror
    those considered by the prior panels in this circuit that we have
    already discussed.   See United States v. Hudson, 
    823 F.3d 11
    , 15
    (1st Cir. 2016) (rejecting an argument where the defendant offered
    "no new or previously unaddressed reason to deviate from our prior
    holdings").
    None of this is to say how we would rule today were the
    option of an uncircumscribed review available.       That the circuits
    are split suggests that the underlying question is close.         We hold
    only that the case for finding that the prior panels would have
    reached a different result today is not so obviously correct as to
    allow this panel to decree that the prior precedent is no longer
    good law in this circuit.    We are a court of six sitting members,
    on which it customarily takes four votes to sit en banc.            Were
    panels of three too prone to reverse prior precedent, we would
    lose the benefits of stability and invite litigants to regard our
    law as more unsettled than it should be.
    III.
    Lewis   presents   two   additional    arguments   on   appeal,
    neither of which he preserved in the district court.          We review
    each only for plain error.     See United States v. Ortíz-Mercado,
    
    919 F.3d 686
    , 689 (1st Cir. 2019).         In order to establish plain
    error, a defendant must show that:        "(1) there was error; (2) the
    -19-
    error was plain; (3) the error affected [his] substantial rights;
    and (4) the error adversely impacted the fairness, integrity, or
    public reputation of judicial proceedings."          United States v.
    Clemens, 
    738 F.3d 1
    , 10 (1st Cir. 2013) (alteration in original)
    (quoting United States v. Caraballo-Rodriguez, 
    480 F.3d 62
    , 69
    (1st Cir. 2007)).       Plain error is a "high hurdle," requiring
    demonstration both "that an error occurred and that it was clear
    or obvious."   United States v. Diaz, 
    285 F.3d 92
    , 95-96 (1st Cir.
    2002).
    Lewis first contends that the district court erred by
    not exercising discretion to vary downwardly from his calculated
    Guidelines sentence and thereby, as he puts it, "disagree" with
    the commentary's inclusion of conspiracy as a predicate offense on
    policy grounds.    Under Kimbrough v. United States, district courts
    have discretion to vary downwardly from a sentence on the basis of
    a policy disagreement with the relevant guideline.          
    552 U.S. 85
    ,
    109–10 (2007).     Lewis argues that certain comments made by the
    district   court   in   applying    the   career-offender    enhancement
    indicate that the district court did not believe that it had
    discretion to disagree with the application of that enhancement.
    We find this argument unpersuasive.
    For starters, Lewis expressly petitioned the district
    court to vary from the career-offender guideline based on policy
    -20-
    reasons in his sentencing memorandum.         In response, the district
    court declined to do so, as was clearly its prerogative.                See
    United States v. Ekasala, 
    596 F.3d 74
    , 76 (1st Cir. 2010) ("[T]he
    mere fact that a sentencing court has discretion to disagree with
    the guidelines on policy grounds does not mean that it is required
    to   do   so."   (citation   omitted));     United    States   v.   Aquino-
    Florenciani, 
    894 F.3d 4
    , 8 (1st Cir. 2009) ("[T]he district court's
    broad discretion obviously includes the power to agree with the
    guidelines." (quoting United States v. Stone, 
    575 F.3d 83
    , 90 (1st
    Cir. 2009))).
    The knowledgeable district court judge said nothing to
    suggest that she thought she lacked the ability to vary downwardly
    based on a disagreement with the application note.          The judge made
    clear that she anchored her decision on the Sentencing Guidelines
    as our court had interpreted them.        And she made clear that if our
    view changed she would want to resentence.           But that is simply to
    say that she intended to anchor her sentence on a clear-cut
    interpretation of the Sentencing Guidelines, whatever that may be.
    It offers no suggestion that the judge thought that she could not
    vary if she disagreed with the Sentencing Guidelines.               Nor did
    Lewis at the time say anything to suggest that he understood the
    court to see itself unduly constrained.          There was no clear or
    obvious error here.
    -21-
    Second, Lewis contends that his conviction under 21
    U.S.C.    § 846     is   a   "categorical       mismatch"   with   the    generic
    definition of conspiracy set out in the guideline commentary.
    Lewis contends that in order to determine whether a conspiracy
    offense   under      § 846   can   constitute       a    "controlled   substance
    offense" under § 4B1.1, courts must look, per the categorical
    approach, to the "generic" definition of the offense of conspiracy
    within "contemporary usage of the term," and then to whether the
    offense of conviction satisfies the offense in the Sentencing
    Guidelines.       See Taylor v. United States, 
    495 U.S. 575
    , 592 (1990).
    He notes that a number of state statutes as well as the federal
    conspiracy statute, 18 U.S.C. § 371, require an overt act for
    conspiracy, see United States v. Garcia-Santana, 
    774 F.3d 528
    , 535
    (9th Cir. 2014), § 846, and therefore § 846 punishes more conduct
    than the generic offense of conspiracy referenced in Application
    Note 1.
    Whether      Lewis's   own    offense   of    conviction     under   21
    U.S.C. § 846 is a categorical mismatch with the generic definition
    of conspiracy is, in this case, a question that we do not have
    occasion to decide.          There is no controlling authority on this
    issue in this circuit, and the other circuits remain divided in
    their response to it.        Compare United States v. McCollum, 
    885 F.3d 300
    , 303–09 (4th Cir. 2018) (conspiracy to murder in aid of
    -22-
    racketeering, in violation of 18 U.S.C. § 1959(a)(5), is not a
    "crime of violence" for career-offender purposes because it does
    not require an overt act), United States v. Whitley, 
    737 F. App'x 147
    , 148-49 (4th Cir. 2018) (per curiam) (unpublished) (finding
    that a conviction violating § 846 does not qualify as a "controlled
    substance     offense"     for    purposes     of   the   career-offender
    enhancement), and United States v. Martinez-Cruz, 
    836 F.3d 1305
    ,
    1314 (10th Cir. 2016) (explaining that § 846 was "a categorical
    mismatch    for   the   generic   definition   of   'conspiracy'"   in   the
    commentary to U.S.S.G. § 2L1.2 because the general requirements of
    conspiracy include an overt act, while § 846 does not), with United
    States v. Rivera-Constantino, 
    798 F.3d 900
    , 902-06 (9th Cir. 2015),
    United States v. Sanbria-Bueno, 
    549 F. App'x 434
    , 438-39 (6th Cir.
    2013) (unpublished), and United States v. Rodriguez-Escareno, 
    700 F.3d 751
    , 753-54 (5th Cir. 2012).          Therefore, any error, if there
    was one, could not have been "clear or obvious" as required to
    establish plain error.       See United States v. Laureano-Pérez, 
    797 F.3d 45
    , 60 (1st Cir. 2015); 
    Diaz, 285 F.3d at 96
    ("If a circuit
    conflict exists on a question, and the law is unsettled in the
    circuit in which the appeal was taken, any error cannot be plain
    or obvious.").
    -23-
    IV.
    For   the   foregoing   reasons,   we   affirm   the   district
    court's sentence.
    - Concurring Opinion Follows -
    -24-
    TORRUELLA AND THOMPSON, Circuit Judges (Concurring).
    We join the court's opinion but write separately to express our
    discomfort      with      the     practical      effect        of    the     deference         to
    Application Note 1, see U.S.S.G. § 4B1.2, cmt. n.1, that our
    precedent       commands:        The   Sentencing        Commission         has       added     a
    substantive offense (here, the inchoate crime of conspiracy) to
    the relevant career-offender guideline through its commentary as
    opposed    to    the      statutorily       prescribed         channel     for    doing       so.
    "[C]ommentary,         though     important,        must       not   be     confused      with
    gospel."     
    Piper, 35 F.3d at 617
    .                 This is as true for us (the
    reviewing       court)     as     it   is    for     the       Sentencing        Commission.
    Therefore, like the Ninth Circuit, were we "free to do so," we
    "would follow the Sixth and D.C. Circuits' lead" and hold that
    Application        Note     1's    expansion        of     §    4B1.2(b)         to     include
    conspiracies and other inchoate crimes does not warrant deference.
    
    Crum, 934 F.3d at 966
    .
    Indeed, we have already held that "there is simply no
    mechanism or textual hook in the Guideline that allows us to import
    offenses     not     specifically         listed      therein        into     § 4B1.2(a)'s
    definition of 'crime of violence.'"                  
    Soto-Rivera, 811 F.3d at 60
    .
    In our view, the same is true of § 4B1.2(b)'s definition of
    "controlled substance offense."                  See 
    Havis, 927 F.3d at 386
    –87
    (concluding      that      "no     term     in     § 4B1.2(b)        would       bear    th[e]
    -25-
    construction" Application Note 1 purports to give it); 
    Winstead, 890 F.3d at 1091
    (explaining that § 4B1.2(b)'s definition "clearly
    excludes inchoate offenses" like attempt and conspiracy).          Neither
    the government nor any circuit court to address the question has
    identified any "textual hook" in the guideline to anchor the
    addition of conspiracy offenses.        
    Soto-Rivera, 811 F.3d at 60
    .
    The    government's    late-breaking      suggestion    at     oral
    argument that the offense of conspiracy to commit a controlled
    substance offense (which forbids only the agreement to commit such
    an   offense    plus,   sometimes,    an    overt   act   in   furtherance)
    "prohibits" the acts listed in § 4B1.2(b), see United States v.
    Richardson, 
    958 F.3d 151
    , 155 (2d Cir. 2020); United States v.
    Lange, 
    862 F.3d 1290
    , 1295 (11th Cir. 2018), would take any modern
    English speaker (not to mention any criminal lawyer) by surprise.
    In ordinary speech, criminal laws do not "prohibit" what they do
    not ban or forbid.      And if conspiracy laws "prohibit" the acts
    listed in § 4B1.2(b) because they "hinder" those acts (as the
    Second and Eleventh Circuit have reasoned), then it is hard to see
    why simple possession offenses would not also be "controlled
    substance offense[s]" under § 4B1.2(b); certainly, laws against
    possessing drugs hinder their distribution or manufacture.                But
    we know that § 4B1.2(b) does not cover simple possession offenses.
    See Salinas v. United States, 
    547 U.S. 188
    , 188 (2006).                On the
    -26-
    other hand, if the Sentencing Commission wanted to give § 4B1.2(b)
    a more expansive interpretation, it had obvious alternatives at
    its disposal that would not have required straining the guideline's
    words past their breaking point.          See 
    Winstead, 890 F.3d at 1091
    ;
    United States v. McKenney, 
    450 F.3d 39
    , 43-45 (1st Cir. 2006)
    (reading the ACCA's definition of "serious drug offense," as "an
    offense under State law, involving manufacturing, distributing, or
    possessing with intent to manufacture or distribute, a controlled
    substance," to include conspiracies (emphasis added)).                As the
    Supreme Court recently clarified, a court's duty to interpret the
    law   requires   it    to   "exhaust    all   the   'traditional   tools'    of
    construction" "in all the ways it would if it had no agency to
    fall back on" before it defers to an agency's "policy-laden choice"
    between two reasonable readings of a rule.             
    Kisor, 139 S. Ct. at 2415
    .   In our view, we could not "bring all [our] interpretive
    tools to bear" on the text of § 4B1.2(b) and still find that
    conspiracies     are    "controlled      substance    offense[s]"    as     the
    guideline defines them.
    Id. at 2423.
    By relying on commentary to expand the list of crimes
    that trigger career-offender status, which may well lead judges to
    sentence many people to prison for longer than they would otherwise
    deem necessary (as the district judge indicated was the case here),
    our   circuit    precedent    raises    troubling    implications   for     due
    -27-
    process, checks and balances, and the rule of law.      The Sentencing
    Commission is an unelected body that exercises "quasi-legislative
    power" and (unlike most other agencies) is located within the
    judicial branch.     Mistretta v. United States, 
    488 U.S. 361
    , 393
    (1989).     Thus, it can only promulgate binding guidelines, which
    influence criminal sentences, because they must pass two checks:
    congressional review and "the notice and comment requirements of
    the Administrative Procedure Act."       
    Havis, 927 F.3d at 385
    (citing
    
    Mistretta, 488 U.S. at 394
    ).       "Unlike the Guidelines themselves,
    however, commentary to the Guidelines never passes through the
    gauntlets of congressional review or notice and comment."
    Id. at 386.
      Thus, the same principles that require courts to ensure that
    agencies do not amend unambiguous regulations in the guise of
    "interpretation" ("without ever paying the procedural cost"),
    
    Kisor, 139 S. Ct. at 2420-21
    , apply with equal (if not more) force
    to the Sentencing Guidelines and their commentary.
    Id. If it
    were otherwise, the Sentencing Commission would be
    empowered to use its commentary as a Trojan horse for rulemaking.
    See 
    Havis, 927 F.3d at 386
    -87.      This it is surely not meant to do,
    especially when the consequence is the deprivation of individual
    liberty.    See 
    Winstead, 890 F.3d at 1092
    ("This is all the more
    troubling    given   that   the   Sentencing   Commission   wields   the
    authority to dispense 'significant, legally binding prescriptions
    -28-
    governing   application    of   governmental   power   against    private
    individuals -- indeed, application of the ultimate governmental
    power, short of capital punishment.'" (quoting 
    Mistretta, 488 U.S. at 413
    (Scalia, J., dissenting))).       The Sentencing Guidelines are
    no place for a shortcut around the due process guaranteed to
    criminal defendants.   If it so desires, the Sentencing Commission
    should expand the definition of "controlled substance offense" to
    add conspiracies by amending the text of § 4B1.2(b) through the
    statutorily   prescribed    rulemaking    process.     See   28   U.S.C.
    § 994(h), (p), (x).
    -29-