United States v. Vargas ( 2023 )

Case: 21-20140 Document: 00516831915 Page: 1 Date Filed: 07/24/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 24, 2023
No. 21-20140 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Andres Vargas,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CR-80-1
Before Richman, Chief Judge, and Jones, Smith, Stewart,
Elrod, Southwick, Haynes, Graves, Higginson, Willett,
Ho, Duncan, Engelhardt, Oldham, Wilson, and Douglas,
Circuit Judges.
Stuart Kyle Duncan, Circuit Judge: †
†
Ten judges join all or part of this opinion. Four join in full: Chief Judge
Richman and Judges Smith, Southwick, and Engelhardt. Judges Jones
and Oldham join all but Part III(C). Judges Higginson and Ho join all but Parts
III(C) and III(D). Judge Willett joins all but Part III(D). Judge Wilson joins
only Parts III(A) and III(D).
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Federal law imposes harsher sentences on people who commit
multiple drug crimes. See U.S. Sent’g Guidelines Manual
§ 4B1.1(a) (U.S. Sent’g Comm’n 2018). 1 But what about conspiracies?
Do people who have engaged in multiple drug conspiracies also get more
prison time? That is the question before us. Our task would be easy if a statute
settled the matter. No such luck: the relevant definition in the United States
Sentencing Guidelines—“controlled substance offense”—does not say one
way or the other whether it includes conspiracies. See § 4B1.2(b). But the
official commentary says, yes, conspiracies are included. See § 4B1.2 cmt. n.1.
So, the solution to our problem depends in significant measure on how much
weight to give the guidelines commentary.
Fortunately, the Supreme Court has told us, and the answer is: “Quite
a lot.” In Stinson v. United States, 508 U.S. 36 (1993), the Court held that the
guidelines commentary is “authoritative unless it violates the Constitution
or a federal statute, or is inconsistent with, or a plainly erroneous reading of,
that guideline.” Id. at 38. The commentary here has none of those flaws. In
particular, the commentary is not “inconsistent with” the guideline merely
because it mentions conspiracies and the guideline’s definition does not. So,
Stinson requires us to follow the commentary.
Some of our sister circuits contend the Supreme Court replaced
Stinson’s highly deferential standard with a less deferential one in Kisor v.
Wilkie, 139 S. Ct. 2400 (2019). 2 Others disagree and continue to apply
1
Citations are to the United States Sentencing Guidelines unless otherwise noted.
2
See United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc); United States v.
Campbell, 22 F.4th 438 (4th Cir. 2022); United States v. Riccardi, 989 F.3d 476 (6th Cir.
2021); United States v. Castillo, 69 F.4th 648 (9th Cir. 2023); United States v. Dupree, 57
F.4th 1269 (11th Cir. 2023) (en banc).
2
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Stinson. 3 We agree with the second group. Stinson sets out a deference
doctrine distinct from the one refined by Kisor. Until the Supreme Court
overrules Stinson, then, our duty as an inferior court is to apply it faithfully.
But even if we are wrong, and Kisor did alter Stinson, we would reach
the same conclusion. That is because applying the traditional tools of
construction—text, structure, history, and purpose—shows that the
commentary reasonably reads “controlled substance offense” to include
conspiracies. See Kisor, 139 S. Ct. at 2415. So, even under Kisor’s less
deferential approach, we would still defer to the commentary.
The sentence under review is therefore AFFIRMED.
I. Background
Andres Vargas tried to buy five kilograms of cocaine from an
undercover agent. His plan began in January 2020, when two Mexican
nationals put Vargas in touch with the agent. Vargas and a co-conspirator
were to pay $125,000 in exchange for the drugs. After agreeing to meet the
agent in a Wal-Mart parking lot to carry out the transaction, Vargas and his
co-conspirator were arrested. Vargas later pled guilty to conspiring to possess
cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(B).
Had this been his first offense, Vargas likely would have faced a
guidelines range of 100–125 months in prison. 4 But his criminal history
3
See United States v. Lewis, 963 F.3d 16 (1st Cir. 2020); United States v. Tabb, 949
F.3d 81 (2d Cir. 2020); United States v. Moses, 23 F.4th 347 (4th Cir. 2022); United States
v. Smith, 989 F.3d 575 (7th Cir. 2021), cert. denied, 142 S. Ct. 488 (2021); United States v.
Maloid, 71 F.4th 795 (10th Cir. 2023).
4
Specifically, Vargas’s Presentence Report (“PSR”) calculated his base offense
level as 30, based on the quantity of drugs involved. His accepting responsibility reduced
3
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triggered an enhancement. Previously, Vargas had been convicted of
(1) possessing amphetamine with intent to distribute it and (2) conspiring to
possess methamphetamine with intent to manufacture and distribute it.
Because these and the instant offense were classified as controlled substance
offenses, Vargas was deemed a career offender under § 4B1.1, yielding a
higher range of 188–235 months. 5
Vargas objected to his career offender designation, arguing that
inchoate crimes, 6 such as his conspiracy convictions, do not qualify as
controlled substance offenses under the definition in § 4B1.2(b). The district
court overruled Vargas’s objections and sentenced him to the low end of the
enhanced range: 188 months, followed by four years of supervised release.
Vargas appealed. As before, he argued that conspiracies cannot qualify
as controlled substance offenses because the guideline definition excludes
inchoate crimes. The commentary’s inclusion of conspiracies, Vargas
asserted, conflicts with the definition. A panel of this court rejected that
argument. See United States v. Vargas, 35 F.4th 936 (5th Cir. 2022), vacated
by 45 F.4th 1083 (5th Cir. 2022). It explained that our circuit previously
“held that § 4B1.1’s career-offender enhancement lawfully includes inchoate
offenses.” Id. at 938 (citing United States v. Lightbourn, 115 F.3d 291, 293 (5th
his offense level by three. Alongside this, the PSR assessed eight criminal history points,
which normally yields a criminal history category of IV. That, when combined with a total
offense level of 27, results in a range of 100–125 months.
5
The enhancement increased Vargas’s offense level to 31 and his criminal history
category to VI. See § 4B1.1(b).
6
An “inchoate crime” is one that involves “[a] step toward the commission of
another crime, the step in itself being serious enough to merit punishment.” Inchoate
Offense, Black’s Law Dictionary (11th ed. 2019). The term includes conspiracies
and attempts. Ibid. It does not include aiding and abetting, which “is simply a different
method for demonstrating liability for the substantive offense.” United States v. Rabhan,
540 F.3d 344, 349 (5th Cir. 2008).
4
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Cir. 1997)). This precedent bound it to affirm Vargas’s sentence, even if Kisor
might have raised questions about the amount of deference due to the
guidelines commentary under Stinson. Id. at 940.
Vargas then petitioned for en banc rehearing, which we granted.
II. Standard of Review
We review a district court’s interpretation of the Sentencing
Guidelines de novo. United States v. Cortez-Gonzalez, 929 F.3d 200, 203 (5th
Cir. 2019).
III. Discussion
To qualify as a career offender under the guidelines, a defendant must
have previously committed “at least two prior felony convictions of either a
crime of violence or a controlled substance offense.” § 4B1.1(a)(3). 7 The
guidelines define “controlled substance offense” in this way:
The term “controlled substance offense” means an 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 a counterfeit substance) or the possession of a
controlled substance (or a counterfeit substance) with intent to
manufacture, import, export, distribute, or dispense.
§ 4B1.2(b). According to the commentary, this definition “include[s] the
offenses of aiding and abetting, conspiring, and attempting to commit such
7
Additionally, the defendant must have been “at least eighteen years old” when
he committed the instant offense, § 4B1.1(a)(1), and that offense must have been “either a
crime of violence or a controlled substance offense,” § 4B1.1(a)(2). It is undisputed that
Vargas was at least eighteen when he committed the instant offense.
5
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offenses.” § 4B1.2 cmt. n.1. We must decide what weight, if any, to give this
commentary. 8
Our discussion proceeds as follows. In Part III(A), we ask which
framework—Stinson or Kisor—governs. We conclude Stinson continues to
bind us. In Part III(B), we ask whether Stinson compels deference to the
commentary. We conclude it does, because the commentary is not
“inconsistent” with the guideline as Stinson used that term. In Part III(C),
we explain that, even under Kisor’s less deferential framework, deference to
the commentary is still warranted. Finally, in Part III(D), we explain why
the rule of lenity does not affect our interpretation of the guidelines.
III(A). Stinson, not Kisor 9
Inferior courts must follow directly applicable Supreme Court
precedent that has not been overruled or modified. See, e.g., Freedom From
Religion Found. v. Mack, 4 F.4th 306, 315 (5th Cir. 2021) (“We are bound to
follow the Supreme Court precedent that most squarely controls our case.”).
Stinson squarely applies here and has not been overruled or modified. So,
follow it we must.
8
The Commission has recently proposed an amendment to the guidelines that
explicitly includes inchoate offenses in the text of § 4B1.2. See Sentencing Guidelines for
United States Courts, 88 Fed. Reg. 28254, 28275–76 (May 3, 2023). This amendment has
been submitted to Congress for review and will take effect on November 1, 2023. Id. at
28254. In the meantime, however, we must still decide the issue before us under the current
guideline. And, even though the Commission has settled this issue going forward, it
“cannot, on its own, resolve the dispute about what deference courts should give to the
commentary.” Dupree, 57 F.4th at 1289 n.6 (Grant, J., concurring in the judgment).
9
This Part represents the views of eleven out of sixteen judges: Chief Judge
Richman, and Judges Jones, Smith, Southwick, Higginson, Willett,
Ho, Duncan, Engelhardt, Oldham, and Wilson.
6
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Stinson held that “commentary in the Guidelines Manual 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.” 508 U.S. at 38. Commentary meeting
those conditions is “binding” and “control[ling]” on courts. 10 That is so
even for “unambiguous” guidelines. Id. at 44. Failing to follow the
commentary thus “constitute[s] ‘an incorrect application of the sentencing
guidelines.’” Id. at 43 (quoting 18 U.S.C. § 3742(f)(1)). Moreover, Stinson
decided all this in a case involving commentary to the same career offender
guideline at issue in the case before us today. Id. at 38 (discussing Stinson’s
“career offender” sentence under “[§] 4B1.1”).
As day follows night, this case is governed by Stinson. Just as in
Stinson, we address commentary interpreting the career offender guideline,
§ 4B1.1. That commentary says that a “controlled substance offense,” as
defined in § 4B1.2, includes a conspiracy to commit such an offense. See
§ 4B1.2 cmt. n.1. Under Stinson’s framework, that commentary “controls”
unless it is “inconsistent with, or a plainly erroneous reading of” the
guideline definition. 508 U.S. at 38.
We can avoid applying Stinson only if the Supreme Court has
overruled or modified it. See, e.g., Lefebure v. D’Aquilla, 15 F.4th 650, 660–
61 (5th Cir. 2021) (“[T]he only court that can overturn a Supreme Court
precedent is the Supreme Court itself.” (citations omitted)); Nat’l Coal. for
Men v. Selective Serv. Sys., 969 F.3d 546, 547 (5th Cir. 2020) (“[O]nly the
Supreme Court may revise its precedent.”). No one claims Stinson has been
10
See Stinson, 508 U.S. at 42 (“[The Court of Appeals’] conclusion that the
commentary now being considered is not binding on the courts was error.”); ibid. (when
commentary “interpret[s]” a guideline or “explain[s] how it is to be applied,” the
commentary “controls” (quoting § 1B1.7)).
7
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overruled. Vargas argues only that Stinson was modified by a 2019 Supreme
Court decision, Kisor v. Wilkie, thereby decreasing the deference due to the
commentary. See 139 S. Ct. 2400. The government agrees with Vargas on this
point, as do some of our sister circuits. 11 Of course, we must determine for
ourselves the controlling legal framework. See, e.g., Djie v. Garland, 39 F.4th
280, 286 n.3 (5th Cir. 2022) (“As our court long ago explained, ‘it is well
settled that a court is not bound to accept as controlling stipulations as to
questions of law.’” (quoting Equitable Life Assur. Soc’y of U.S. v. MacGill, 551
F.2d 978, 983 (5th Cir. 1977))).
Under Kisor, before a court may defer to an agency’s interpretation of
its own regulation, it must “exhaust all the ‘traditional tools’ of
construction” and find the regulation “genuinely ambiguous.” 139 S. Ct. at
2415. This formulation clarified the deference rule from an older decision,
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) (sometimes called
“Seminole Rock” 12 for short). See Kisor, 139 S. Ct. at 2415 (discussing
Seminole Rock). And Kisor has been sensibly interpreted as lowering the
amount of deference given to agency interpretations of regulations. 13
11
See Nasir, 17 F.4th at 471; Campbell, 22 F.4th at 444–45; Riccardi, 989 F.3d at
485; Castillo, 69 F.4th at 655–56; Dupree, 57 F.4th at 1275. Other circuits continue to apply
Stinson. See Lewis, 963 F.3d at 22–24; Tabb, 949 F.3d at 87; Moses, 23 F.4th at 351–58;
Smith, 989 F.3d at 584; Maloid, 71 F.4th at 805–08. For a cogent treatment of this general
subject, see John S. Acton, The Future of Judicial Deference to the Commentary of the United
States Sentencing Guidelines, 45 Harv. J.L. & Pub. Pol’y 349 (2022) (arguing for the
continued vitality of Stinson).
12
It is also sometimes called “Auer” deference after a later case. See Auer v.
Robbins, 519 U.S. 452 (1997).
13
See, e.g., Kisor, 139 S. Ct. at 2443 (Gorsuch, J., concurring in the judgment); Paul
J. Larkin, Jr., Agency Deference After Kisor v. Wilkie, 18 Geo. J.L. & Pub. Pol’y 105,
118 (2020) (“The Kagan opinion lowers the reader’s expectation as to the amount of
deference an agency’s rule-interpretation should receive.”).
8
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Vargas points out that Stinson itself drew from Seminole Rock. True
enough. Stinson viewed the commentary as “akin to an agency’s
interpretation of its own legislative rules.” 508 U.S. at 45. So, it borrowed
Seminole Rock’s rule that such an interpretation “must be given ‘controlling
weight unless it is plainly erroneous or inconsistent with the [guideline].’”
Ibid. (quoting Seminole Rock, 325 U.S. at 414). Because Kisor reformulated
Seminole Rock, Vargas argues that Kisor necessarily reformulated Stinson, too.
That is, when Kisor curtailed the deference due to an agency’s interpretation
of a regulation (Seminole Rock), it also curtailed the deference due to the
commentary’s interpretation of a guideline (Stinson). Some of our sister
circuits have adopted this rationale. See, e.g., Dupree, 57 F.4th at 1275
(“[T]he only way to harmonize the two cases is to conclude that Kisor’s gloss
on Auer and Seminole Rock applies to Stinson.”). We disagree for several
reasons.
First, nothing in Kisor suggests it meant to modify Stinson. Nowhere
does Kisor mention the Sentencing Guidelines, the Commission, or the
commentary. See 139 S. Ct. 2400. Instead, Kisor examined whether it should
defer to an agency’s (specifically, the Department of Veterans Affairs’)
“reasonable readings of genuinely ambiguous regulations.” Id. at 2408. Kisor
did not discuss Stinson at all: it merely included Stinson in a footnote string-
cite of sixteen cases described as “decisions applying Seminole Rock
deference.” Id. at 2411 n.3.
That footnote signals no intention to change Stinson. Quite the
opposite. The footnote is merely descriptive and is not even joined by a Court
majority. See id. at 2407, 2410 (only four Justices join Part II-A). What’s
more, another part of Kisor—this one joined by a majority—refuses to
overrule the “long line of precedents” that includes Stinson. See id. at 2422
(citing id. at 2411 nn.2–3). Far from altering Stinson, then, Kisor goes out of
its way to leave it undisturbed.
9
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Second, although Stinson borrowed from Seminole Rock, Stinson
deference differs from Seminole Rock in important ways. As our Eleventh
Circuit colleague has observed, the two doctrines are not “interchangeable.”
Dupree, 57 F.4th at 1284 (Grant, J., concurring in the judgment). For
instance, under Stinson, the commentary controls even unambiguous
guidelines. See 508 U.S. at 44 (stating “commentary . . . provides concrete
guidance as to how even unambiguous guidelines are to be applied in practice”
(emphasis added)). Not so with Seminole Rock, which required deference only
when “the meaning of the words used [was] in doubt.” 325 U.S. at 414.
Another difference: under Stinson, the Commission can interpret a
guideline in ways that conflict with prior judicial interpretations. See 508 U.S.
at 46 (holding “prior judicial constructions of a particular guideline cannot
prevent the Commission from adopting a conflicting interpretation”); accord
Dupree, 57 F.4th at 1285 (Grant, J., concurring in the judgment). Not so with
agencies. An agency’s interpretation cannot trump a court’s prior
interpretation of an unambiguous statute. See Nat’l Cable & Telecomms. Ass’n
v. Brand X Internet Servs., 545 U.S. 967, 982–83 (2005).
So, while Stinson drew from Seminole Rock, the two doctrines were
distinct from the beginning and remain distinct today. See, e.g., Moses, 23
F.4th at 356 (“[E]ven though the two cases addressed analogous
circumstances, Stinson . . . appl[ies] when courts are addressing Guidelines
commentary, while Kisor applies when courts are addressing executive
agency interpretations of legislative rules.”). It does not follow that refining
Seminole Rock automatically refines Stinson.
Third, the Sentencing Commission and administrative agencies are
different animals. Yes, Stinson likened the Commission to an agency, but it
cautioned that “the analogy is not precise.” 508 U.S. at 44. Quite right. The
Commission is “a peculiar institution within the framework of our
10
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Government.” Mistretta v. United States, 488 U.S. 361, 384 (1989). Unlike an
executive branch agency, the Commission lodges in the judicial branch. See
28 U.S.C. § 991(a). Its seven members are appointed by the President and
confirmed by the Senate, and at least three must be federal judges. Ibid. So,
while “the role of other federal agencies is typically executive,” the
Commission is “judicial in nature.” Moses, 23 F.4th at 355.
Instead of addressing the public, as agencies do, the Commission
addresses federal judges. “[I]ts Guidelines Manual, including its policy
statements and commentary, is directed at providing guidance to district
judges tasked with the duty of imposing an individualized sentence on a
criminal defendant.” Ibid. (citing United States v. Booker, 543 U.S. 220, 245
(2005)). And unlike an agency’s gloss on its regulations, the Commission’s
role in promulgating and interpreting guidelines is sanctioned by statute. 14
We therefore agree with the Fourth Circuit that “[t]hese differences justify
a distinct approach in considering Guidelines commentary, on the one hand,
and an agency’s interpretation of its legislative rules, on the other.” Ibid.In this vein, one other point deserves mention. A core function of the
Commission is to avoid “unwarranted sentencing disparities.” See 28 U.S.C.
§ 991(b)(1)(B). The commentary tangibly advances that goal by
“amplify[ing] and explain[ing] how the Guidelines are to be applied.” Moses,
23 F.4th at 357 (citing § 1B1.7). As more than one of our colleagues have
observed, though, consistency in applying the guidelines would be frustrated
14
See generally Stinson, 508 U.S. at 40–41 (discussing Commission’s authority
under the Sentencing Reform Act of 1984); see also, e.g., 28 U.S.C. § 994 (Sentencing
Reform Act authorizing Commission’s guidelines and policy statements); 18 U.S.C.
§ 3553(b)(1) (permitting courts to consider only “sentencing guidelines, policy statements,
and official commentary” in deciding whether to depart from guidelines range); 18 U.S.C.
§ 3742 (discussing the role of guidelines ranges in judicial review of sentences).
11
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if Kisor governed whether the commentary controlled. 15 Only commentary to
“genuinely ambiguous” guidelines would bind courts, with the rest safely
ignored. If the Supreme Court meant to layer this new complexity onto an
already complex system, one would expect it to say so plainly. Yet we are
supposed to believe that Kisor did this in an opinion that did not even mention
the Sentencing Guidelines and that refused to overrule Stinson. See Kisor, 139
S. Ct. at 2422, 2411 n.3. That is most unlikely.
Ending this section where we began, we again state that it is our duty
to follow squarely applicable Supreme Court precedent. Stinson is that.
Distilled to its essence, Vargas’s contention is that Kisor undermined
Stinson’s foundations because Stinson built on Seminole Rock. Whether that
is true, though, is the Supreme Court’s business and not ours. 16 Perhaps
Kisor is the coming-soon trailer for a rethinking of Stinson. Or perhaps the
Sentencing Commission’s unique nature and role warrant a distinct
deference doctrine untouched by Kisor. We express no view on the matter.
Our job, as an inferior court, is to adhere strictly to Supreme Court
precedent, whether or not we think a precedent’s best days are behind it. See
Mallory v. Norfolk S. Ry. Co., 143 S. Ct. 2028, 2038 (2023) (“[A] lower court
‘should follow the case which directly controls’ . . . even if the lower court
15
See Moses, 23 F.4th at 357 (“Were we now to relegate commentary to a status
where it could be considered only when the relevant Guideline is genuinely ambiguous, we
would negate much of the Commission's efforts in providing commentary to fulfill its
congressionally designated mission.”); Dupree, 57 F.4th at 1287 (Grant, J., concurring in
the judgment) (applying Kisor would “exacerbate the degree of sentencing
discrepancies”).
16
See Hohn v. United States, 524 U.S. 236, 252–53 (1998) (“[The Supreme Court’s]
decisions remain binding precedent until [the Supreme Court] see[s] fit to reconsider them,
regardless of whether subsequent cases have raised doubts about their continuing
vitality.”); see also Dupree, 57 F.4th at 1293 (Luck, J., dissenting) (rejecting the “transitive”
argument that “because X relied on Y, and Y has been clarified by Z, then X must also have
been clarified by Z”).
12
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thinks the precedent is in tension with ‘some other line of decisions.’”
(quoting Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484
(1989))).
So, we proceed to apply Stinson to the commentary at issue here.
III(B). The commentary controls under the Stinson framework. 17
Under Stinson, the question is whether the commentary at issue is
“inconsistent with” the applicable guideline. 508 U.S. at 38. As noted, that
guideline defines a “controlled substance offense” as an “offense . . . 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.” § 4B1.2(b).
The commentary, in turn, states that this definition “include[s] the offenses
of aiding and abetting, conspiring, and attempting to commit such offenses.”
§ 4B1.2 cmt. n.1.
Vargas argues that, even under Stinson’s more deferential approach,
the commentary clashes with § 4B1.2(b) by including conspiracies. Invoking
the expressio unius or “negative-implication” canon, Vargas contends that
§ 4B1.2(b)’s failure to list inchoate crimes like conspiracies means they are
excluded, depriving the commentary of Stinson deference. See NLRB v. SW
Gen., Inc., 580 U.S. 288, 302 (2017) (“The interpretive canon, expressio unius
est exclusio alterius, [means] ‘expressing one item of an associated group or
series excludes another left unmentioned.’” (cleaned up)); see also
Antonin Scalia & Bryan A. Garner, Reading Law: The
17
This Part represents the views of ten out of sixteen judges: Chief Judge
Richman, and Judges Jones, Smith, Southwick, Higginson, Willett,
Ho, Duncan, Engelhardt, and Oldham.
13
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Interpretation of Legal Texts 107 (2012) (discussing “negative-
implication canon”).
This question has split the circuits. Some courts agree with Vargas. 18
Others disagree, finding no inconsistency between the commentary and
§ 4B1.2(b) and thus deferring to the commentary. 19 We side with the second
group: the commentary is not inconsistent with the guideline definition. So,
Stinson requires us to defer to the commentary.
We begin by asking what Stinson means by commentary that is
“inconsistent” with a guideline. Helpfully, Stinson tells us: “If . . .
commentary and the guideline it interprets are inconsistent in that following
one will result in violating the dictates of the other, the Sentencing Reform Act
itself commands compliance with the guideline.” Stinson, 508 U.S. at 43(emphasis added) (citing 18 U.S.C. §§ 3553(a)(4), (b)). Accordingly, Stinson
criticizes courts that “refuse[] to follow commentary in situations falling
short of such flat inconsistency.” Ibid.In other words, “inconsistency” demands more than merely showing
that the commentary’s reading of the guideline is incorrect or implausible.
Rather, there must be some irreconcilable variance (“flat inconsistency”)
between the two. See, e.g., Moses, 23 F.4th at 354 (observing that Stinson
18
See Campbell, 22 F.4th at 443–46; United States v. Havis, 927 F.3d 382, 386–87
(6th Cir. 2019) (en banc) (per curiam); Castillo, 69 F.4th at 657–58; United States v.
Winstead, 890 F.3d 1082, 1090–91 (D.C. Cir. 2018); see also Dupree, 57 F.4th at 1287 (Grant,
J., concurring in the judgment) (arguing under Stinson that this is “a rare case of true
incompatibility between commentary and its underlying guideline”).
19
See Lewis, 963 F.3d at 21–23; United States v. Richardson, 958 F.3d 151, 154–55
(2d Cir. 2020); Smith, 989 F.3d at 583–85; United States v. Merritt, 934 F.3d 809, 811–12
(8th Cir. 2019); United States v. Lange, 862 F.3d 1290, 1295 (11th Cir. 2017), overruled on
other grounds by Dupree, 57 F.4th 1269; see also Dupree, 57 F.4th at 1296 (Luck, J., dissenting)
(applying Stinson to conclude that conspiring to possess with intent to distribute heroin and
cocaine remains a controlled substance offense).
14
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“defined ‘inconsistent’ strictly”). Our circuit has applied Stinson in this
strict fashion. For instance, we have found inconsistency where the
commentary rendered a guideline functionally “inoperable.” United States v.
Pringler, 765 F.3d 445, 454 (5th Cir. 2014). Yet even where there was
“apparent conflict” between guideline and commentary, we understood our
role under Stinson as seeking to “reconcile[]” the two to avoid the need to
“declar[e] which must prevail over the other.” United States v. Clayton, 172
F.3d 347, 355 (5th Cir. 1999). 20
Such generous deference to the commentary follows from the role
Congress assigned the Sentencing Commission. Stinson, 508 U.S. at 45.
Under the Sentencing Reform Act, Congress gave the Commission broad
authority to write, review, and revise the guidelines. See id. at 45–46 (citing
28 U.S.C. § 994(o), (w)). Importantly, the Commission can revise the
guidelines in two ways—either by amending the guidelines themselves or by
“amendment of the commentary.” Id. at 46. “Amended commentary,”
Stinson tells us, “is binding on the federal courts even though it is not
reviewed by Congress,” 21 and takes precedence even over “prior judicial
constructions of a particular guideline.” Ibid. Accordingly, courts “can
presume that the interpretations of the guidelines contained in the
commentary represent the most accurate indications of how the Commission
deems that the guidelines should be applied.” Id. at 45.
20
Other circuits have also set a high bar for finding inconsistency. See, e.g., United
States v. Cramer, 777 F.3d 597, 606 (2d Cir. 2015) (following guideline over commentary
where commentary would leave the guideline without “any practical effect”).
21
To be precise, revisions to the commentary are not required to be submitted to
Congress for review. See 28 U.S.C. § 994(x). But, as we note below, the commentary here
was reviewed by Congress. See Dupree, 57 F.4th at 1281 (Pryor, C.J., concurring) (citing
Amendments to the Sentencing Guidelines for United States Courts, 54 Fed. Reg. 21348,
21379 (May 17, 1989)).
15
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Bearing all that in mind, we turn to Vargas’s argument that the
commentary, by including conspiracies and attempts, is inconsistent with the
guideline’s definition of controlled substance offense. We conclude Vargas
fails to overcome the ample deference Stinson affords the commentary.
First and foremost, the guideline says nothing one way or the other
about conspiracies and attempts. It states only that a “controlled substance
offense” means an “offense that prohibits” various drug-related activities,
like manufacturing or distributing narcotics. § 4B1.2(b). In light of that, one
can follow the commentary (by counting conspiracies and attempts as
controlled substance offenses) without “violating the dictates of the
[guideline].” Stinson, 508 U.S. at 43.
The Seventh Circuit used this reasoning to find no conflict between
the commentary and the § 4B1.2(b) definition. See Smith, 989 F.3d at 585
(concluding “§ 4B1.2’s Application Note 1 is authoritative and that
‘controlled substance offense’ includes inchoate offenses” (citing United
States v. Adams, 934 F.3d 720, 729–30 (7th Cir. 2019))). The court saw no
inconsistency because the definition “does not tell us, one way or another,
whether inchoate offenses are included or excluded.” Ibid. (quoting United
States v. Raupp, 677 F.3d 756, 759 (7th Cir. 2012), overruled on other grounds
by United States v. Rollins, 836 F.3d 737 (7th Cir. 2016)). 22 Other circuits
agree. See, e.g., United States v. Piper, 35 F.3d 611, 617 (1st Cir. 1994)
(commentary not inconsistent with § 4B1.2 because it “neither excludes any
offenses expressly enumerated in the guideline, nor calls for the inclusion of any
22
One case Smith relied on, Raupp, involved a “crime of violence” under
§ 4B1.2(a) rather than a “controlled substance offense” under § 4B1.2(b). For our
purposes, though, there is no difference between the two definitions—neither says it
includes or excludes inchoate offenses. Smith itself addressed a controlled substance
offense under § 4B1.2(b). Ibid.
16
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No. 21-20140
offenses that the guideline expressly excludes” (emphasis added)); United States
v. Jackson, 60 F.3d 128, 131 (2d Cir. 1995) (following the commentary
because guidance one way or another on inchoate crimes “does not appear in
an actual guideline”). We find this reasoning sound.
But some of our sister circuits do not. Relying largely on the expressio
unius canon, they reason that the commentary improperly “adds”
conspiracies and attempts to a definition that “clearly excludes inchoate
offenses.” Winstead, 890 F.3d at 1090–92; accord Nasir, 17 F.4th at 471–72;
Campbell, 22 F.4th at 444; Havis, 927 F.3d at 386; Castillo, 69 F.4th at 651;
see also Dupree, 57 F.4th at 1287–88 (Grant, J., concurring in the judgment).
On this view, one cannot follow the commentary without violating the
guideline, making the two inconsistent. We respectfully disagree with our
colleagues.
Expressio unius teaches that “[t]he expression of one thing implies the
exclusion of others.” Scalia & Garner, supra, at 107; see also In re
Bourgeois, 902 F.3d 446, 447–48 (5th Cir. 2018) (discussing canon). “[T]he
canon does not apply ‘unless it is fair to suppose that [the drafter] considered
the unnamed possibility and meant to say no to it.’” United States v.
Cartagena-Lopez, 979 F.3d 356, 362 (5th Cir. 2020) (quoting Marx v. Gen.
Rev. Corp., 568 U.S. 371, 381 (2013)). These two inquiries are therefore
helpful: “(1) Whether the statutory text communicates exclusivity, and
(2) whether the included term goes hand in hand with the missing term,
allowing the inference that the omission has interpretive force.” Ibid. (citing
Barnhart v. Peabody Coal Co., 537 U.S. 149, 168–69 (2003)). 23 “Without these
23
By asking the second question, the dissent claims we are applying a “limited
exception” to the expressio unius canon. Post, at 7. Not so. Properly applying the canon has
always required asking whether the relationship between named and unnamed terms
implies an intent to exclude the unnamed term. See, e.g., Marx v. Gen. Rev. Corp., 568 U.S.
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clues, we cannot discern any meaning from statutory omissions.” Ibid.; see
also Bourgeois, 902 F.3d at 448 (“Context may indicate that Congress did not
wish for an express provision of one thing to work towards the exclusion of
another.”).
The expressio unius canon does not apply here. Contrary to the views
of some other circuits, cf. Winstead, 890 F.3d at 1091, the definition does not
“clearly exclude” conspiracies and attempts, see, e.g., Dupree, 57 F.4th at
1295 n.1 (Luck, J., dissenting) (“[S]ection 4B1.2(b)’s text does not exclude
conspiracy, attempt, and aiding and abetting crimes.”). It is more accurate to
say that the definition does not mention them. See Smith, 989 F.3d at 585 (the
definition “does not tell us, one way or another, whether inchoate offenses
are included or excluded”). Not mentioning something does not necessarily
mean excluding it. The context must justify that inference. See Barnhart, 537
U.S. at 168 (the canon applies only when the “statutory listing or grouping
. . . justif[ies] the inference that items not mentioned were excluded by
deliberate choice”). Here it does not.
Had the drafters wanted to exclude inchoate offenses from § 4B1.2(b),
they could have easily said so. For instance, they could have stated that
conspiracies and attempts are “excluded,” just as other guidelines
“exclude” specific crimes for various reasons. See Dupree, 57 F.4th at 1295
n.1 (Luck, J., dissenting) (noting where guidelines “exclude” crimes) (citing
§ 3D1.1(b)(2); § 4A1.2(c)); see also § 2G2.2 cmt. n.1 (defining “distribution”
not to include mere solicitation of certain material). Or they could have
371, 381 (2013) (explaining that “[t]he force of any negative implication . . . depends on
context” and that “[w]e have long held that the expressio unius canon does not apply ‘unless
it is fair to suppose that Congress considered the unnamed possibility and meant to say no
to it’” (quoting Barnhart, 537 U.S. at 168)); Scalia & Garner, supra, at 107 (“The
doctrine properly applies only when the . . . thing specified . . . can reasonably be thought
to be an expression of all that shares in the grant or prohibition involved.”).
18
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tethered the definition to the violation of specific drug laws—again, as other
guidelines do. See, e.g., § 2D1.1(a)(2) (setting Base Offense Level at 38 if,
inter alia, “the defendant is convicted under 21 U.S.C. § 841(b)(1)(A),
(b)(1)(B), or (b)(1)(C), or 21 U.S.C. § 960(b)(1), (b)(2), or (b)(3)”). 24 Had
§ 4B1.2 been structured that way, one might plausibly argue that it excludes
a conspiracy under 21 U.S.C. § 846 (assuming § 846 was not listed). 25 That
is not how § 4B1.2 is written, however.
Instead, the definition is keyed to specific drug-related actions
(“manufacture, import, export, distribution, dispensing”). But not putting
“conspiracy” on that list does not imply excluding it. A conspiracy is not just
another drug-related activity the drafters chose to omit. Rather, a conspiracy
is “[a] step toward the commission of another crime, the step in itself being
serious enough to merit punishment.” Inchoate Offense, Black’s Law
Dictionary (11th ed. 2019). 26 It is therefore conceptually different from
the listed acts: one can conspire to commit any of them. That removes the
premise for applying expressio unius—“an ‘associated group or series,’
justifying the inference that items not mentioned were excluded by deliberate
choice.” Barnhart, 537 U.S. at 168 (quoting United States v. Vonn, 535 U.S.
24See also, e.g., § 2X7.1(a)(2) (setting Base Offense Level of 16 “if the defendant
was convicted under 18 U.S.C. § 555(a)); § 2A2.2(b)(7) (providing for a two-level
enhancement “[i]f the defendant was convicted under 18 U.S.C. § 111(b) or § 115”).
25
To be clear, we are not saying that argument would be correct. After all, the
conspiracy statute states that anyone who attempts or conspires to commit a drug crime
“shall be subject to the same penalties as those prescribed for the offense, the commission of
which was the object of the attempt or conspiracy.” 21 U.S.C. § 846 (emphasis added). We
are saying only that the expressio unius argument for excluding conspiracies would be better
if the relevant definition listed specific sections but not the conspiracy section.
26
See also, e.g., Smith v. United States, 568 U.S. 106, 110 n.3 (2013) (explaining that
a “[n]arcotics conspiracy under 21 U.S.C. § 846 criminalizes ‘conspir[ing] to commit any
offense’ under the Controlled Substances Act”).
19
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55, 65 (2002)). Said another way, conspiracies do not “go[] hand in hand”
with the actions listed in § 4B1.2(b), such that “the omission of [conspiracy]
has interpretive force.” Cartagena, 979 F.3d at 362. 27
In addition to the expressio unius argument, some courts point to the
nearby definition of “crime of violence” in § 4B1.2(a)(1). This definition,
they argue, does mention “attempt,” and so one should infer that § 4B1.2(b)
must exclude inchoate crimes by not mentioning them. 28 See Bittner v. United
States, 598 U.S. 85, 94 (2023) (“When Congress includes particular language
in one section of a statute but omits it from a neighbor, we normally
understand that difference to convey a difference in meaning . . . .”).
We disagree because the two sections are not parallel. “Crime of
violence” is defined in terms of offenses with force-related elements—i.e., one
that “has as an element the use, attempted use, or threatened use of physical
27
The dissent’s counterarguments are unavailing. Post, at 8–9. It contends that
(1) “substantive and conspiracy offenses are associated items,” and (2) the Commission
“chose[]” to include substantive offenses and leave conspiracies out. See ibid.(“Substantive drug crimes were chosen. Conspiracies were not.”). Respectfully, that begs
the question asked by the negative-implication canon. That question is whether the list of
acts in § 4B1.2(b) (“manufacture, import, [etc.]”) implies excluding inchoate forms of
those acts, such as conspiracies. As we have explained, the answer is no.
The dissent also claims our position amounts to inserting “pizza” into “a menu of
‘hot dogs, hamburgers, and bratwursts.’” Id. at 9 (quoting United States v. Havis, 907 F.3d
439, 450 (6th Cir. 2018) (Thapar, J., concurring), rev’d en banc, 927 F.3d 382). The dissent
finds this analogy “delicious[],” ibid., but we find it undercooked. A better analogy would
be whether a menu listing “milk, soy milk, and almond milk” implicitly excludes skim milk.
Or whether a mother’s forbidding her child to eat “cookies” implicitly allows eating raw
cookie dough. Answering those questions requires carefully considering context, just like
the question before us. See Bourgeois, 902 F.3d at 448 (“Context may indicate that Congress
did not wish for an express provision of one thing to work towards the exclusion of
another.” (citations omitted)).
28
See Havis, 927 F.3d at 386 (arguing based on §4B1.2(a) that “the Commission
knows how to include attempt crimes when it wants to”); Nasir, 17 F.4th at 471 (same);
Campbell, 22 F.4th at 445 (same); Castillo, 69 F.4th at 658 (same).
20
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force against the person of another.” § 4B1.2(a)(1). By contrast, “controlled
substance offense” is not defined in terms of elements but, as noted, in terms
of whether an offense “prohibits” certain drug-related actions. § 4B1.2(b).
Not being parallel, the two sections shed little light on each other.
In other words, we should not infer that because the authors included
“attempted use of physical force” in § 4B1.2(a)(1), they must have excluded
“attempted drug manufacture” from § 4B1.2(b). Maybe that would follow if
§ 4B1.2(b) defined a controlled substance offense as one “that has as an
element the manufacture, distribution, etc., of a controlled substance.” But it
does not, meaning that the premise for pitting one section against the other
is lacking. See Clinchfield Coal Co. v. Fed. Mine Safety & Health Rev. Comm’n,
895 F.2d 773, 779 (D.C. Cir. 1990) (explaining that “explicit direction for
something in one provision, and its absence in a parallel provision, implies an
intent to negate it in the second context” (emphasis added)).
Finally, according to some courts, e.g., Havis, 927 F.3d at 386, the text
of § 4B1.2(b) cannot “bear the construction” that includes conspiracies and
attempts, see Stinson, 508 U.S. at 46 (asking whether “the guideline which
the commentary interprets will bear the construction”). Others disagree.
E.g., Richardson, 958 F.3d at 155. The disagreement concerns a fine-grained
inquiry into the meaning of “prohibit” in the phrase: “an offense that
prohibits the manufacture, import, export, distribution, or dispensing of a
controlled substance.” § 4B1.2(b) (cleaned up).
Some courts contend that here “prohibit” can only mean “forbid by
law.” See, e.g., Dupree, 57 F.4th at 1279. On that view, the definition would
exclude conspiracies because, strictly speaking, they do not legally “forbid”
the drug-related action itself but only the agreement to engage in it. See id. at
1279–80; see also Smith, 568 U.S. at 110 & n.3 (defining a narcotics conspiracy
under 21 U.S.C. § 846). Others contend, however, that “prohibit” may also
21
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No. 21-20140
carry the broader connotation of “prevent [or] hinder.” See, e.g., Richardson,
958 F.3d at 155 (alteration in original) (quoting Prohibit, Oxford English
Dictionary (online ed. 2020)). On that view, the definition would include
conspiracies because criminalizing agreements to engage in drug-related
activities “hinders” the activities themselves. See ibid.
Under Stinson deference, however, we need not say which of these
two readings of “prohibit” is the correct or even the better one. All we need
determine is whether the guideline can bear the commentary’s construction
that includes inchoate crimes. 508 U.S. at 46. It can. For various reasons, the
commentary need not have chosen the narrowest view of what constitutes an
“offense that prohibits” the drug-related activities listed in § 4B1.2(b) and
could have opted for a reading of the phrase broad enough to embrace
inchoate crimes. See Lewis, 963 F.3d at 22.
To begin with, federal law provides that those who commit inchoate
drug offenses “shall be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the attempt or
conspiracy.” 21 U.S.C. § 846 (emphasis added). The whole purpose of the
guidelines is to implement penalties for federal crimes, including violations
of laws like § 846. See 28 U.S.C. § 991(b). So, it would not be at all surprising
if the Commission interpreted the relevant phrase in § 4B1.2(b) to place
inchoate crimes on the same footing as the underlying criminal acts. See 28
U.S.C. § 994(h) (directing the Commission “assure that the guidelines
specify a sentence to a term of imprisonment at or near the maximum term
authorized” for career offenders of crimes of violence or controlled substance
offenses (emphasis added)). We cannot say that such an approach makes the
commentary “flat[ly] inconsisten[t]” with the guideline definition. Stinson,
508 U.S. at 43.
22
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Furthermore, the commentary’s broader reading of “prohibit” syncs
with how ordinary English speakers would use the term. See United States v.
Billups, 850 F.3d 762, 765–66 (5th Cir. 2017) (noting that the guidelines are
“subject to the ordinary rules of statutory construction” and so “in the
absence of a statutory definition, we give terms their ordinary meaning”
(citations omitted)). Suppose a university’s code of conduct provides: “The
university prohibits cheating on exams.” A week before finals, a professor
discovers that a group of students has concocted an elaborate plan to cheat
on their tests. The plot is thwarted before the students can act. Would finding
the students guilty of violating the code of conduct be “flatly inconsistent”
with the code’s “prohibition” on cheating? Of course not.
Moreover, the history of the current definition strongly supports the
commentary’s inclusion of inchoate offenses. See Scalia & Garner,
supra, at 432, 440 (contrasting disfavored “legislative history” with
“statutory history,” meaning “[t]he enacted lineage of a statute, including
prior laws, amendments, codifications, and repeals”). 29 The two prior
versions, in 1987 and 1988, cross-reference specific drug crimes, along with a
catch-all for “similar offenses.” 30 The commentary explained that both
definitions included “aiding and abetting, conspiring, or attempting to
29
See also In re Crocker, 941 F.3d 206, 213 (5th Cir. 2019) (“Enacted revisions in
the wording of statutes are part of ‘statutory history,’ not ‘the sort of unenacted legislative
history that often is neither truly legislative (having failed to survive bicameralism and
presentment) nor truly historical (consisting of advocacy aimed at winning in future
litigation what couldn’t be won in past statutes).’” (quoting BNSF Ry. Co. v. Loos, 139 S.
Ct. 893, 906 (2019) (Gorsuch, J., dissenting))).
30
See § 4B1.2(2) (1987) (defining “controlled substance offense” as “an offense
identified in 21 U.S.C. §§ 841, 952(a), 955, 955a, 959; §§ 405B and 416 of the Controlled
Substances Act as amended in 1986, and similar offenses”); § 4B1.2(2) (1988) (defining
“controlled substance offense” as “an offense identified in 21 U.S.C. §§ 841, 845b, 856,
952(a), 955, 955a, 959; and similar offenses”) (emphases added).
23
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commit such offenses, and other offenses that are substantially equivalent to
the offenses listed.” § 4B1.2(2) cmt. n.2 (1987); see also § 4B1.2(2) cmt. n.2
(1988) (similar). Today’s definition was born the following year, 1989,
replacing the cross-references with a broader reference to “federal or state
law prohibiting the manufacture, [etc.] . . . of a controlled substance.”
§ 4B1.2(2) (1989) (cleaned up). And, of course, the commentary continued
to explain that inchoate offenses were included. Id. cmt. n.1.
Keep in mind, moreover, that this commentary—as is often the
case—passed through notice and comment and was submitted to Congress.
See Dupree, 57 F.4th at 1281 (Pryor, C.J., concurring) (explaining that, “in
practice, the Commission ordinarily uses the same procedure to revise the
commentary as it does to revise the Guidelines” and that “[t]he application
note [to § 4B1.2(b)] is an apt example” (citing § 4B1.2 cmt. n.2 (1987);
Amendments to the Sentencing Guidelines for United States Courts, 54 Fed.
Reg. at 21379)). In other words, Congress had the opportunity to consider the
inchoate offense commentary when it reviewed the current form of
§ 4B1.2(b). In light of this history, we would be hard pressed to say that the
current iteration of § 4B1.2(b) “cannot bear” the Committee’s longstanding
construction that it—like the two prior versions—includes inchoate offenses.
***
We sum up. Stinson tells us to treat the commentary to a guideline as
“binding” unless “following one will result in violating the dictates of the
other.” Stinson, 508 U.S. at 43. As explained in this Part, we do not find that
kind of “flat inconsistency” between the guideline definition of controlled
substance offense and the commentary’s view that the definition includes
conspiracies. Ibid. We accordingly defer to the commentary under Stinson.
24
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III(C). Even under Kisor, we would defer to the commentary. 31
Alternatively, we will assume that Kisor did modify the Stinson
framework, as some of our sister circuits hold. See Nasir, 17 F.4th at 471;
Campbell, 22 F.4th at 444–45; Riccardi, 989 F.3d at 485; Castillo, 69 F.4th at
655–56; Dupree, 57 F.4th at 1275. Even under that less deferential framework,
however, we would still defer to the commentary’s view that the definition
of “controlled substance offense” includes inchoate crimes.
Kisor clarified when a court must defer to an agency’s interpretation
of its own regulation. “First and foremost,” courts should not defer “unless
the regulation is genuinely ambiguous.” Kisor, 139 S. Ct. at 2415 (first citing
Christensen v. Harris County, 529 U.S. 576, 588 (2000); and then citing
Seminole Rock, 325 U.S. at 414). That threshold inquiry demands scrutiny of
the regulation, not merely “wav[ing] the ambiguity flag just because [a court]
found the regulation impenetrable on a first read.” Ibid. Specifically, “a court
must ‘carefully consider’ the text, structure, history, and purpose of a
regulation,” and, in view of that, conclude that “the interpretive question
still has no single right answer.” Ibid. (cleaned up) (quoting Pauley v.
BethEnergy Mines, Inc., 501 U.S. 680, 707 (1991) (Scalia, J., dissenting)). And
even then, “the agency’s reading must still be ‘reasonable,’” meaning it
must fall “within the zone of ambiguity the court has identified after
employing all its interpretive tools.” Id. at 2415–16 (quoting Thomas Jefferson
Univ. v. Shalala, 512 U.S. 504, 515 (1994)).
Next, a court must assure itself that “the character and context of the
agency interpretation entitles it to controlling weight.” Id. at 2416. For
31
This Part represents the views of six out of sixteen judges: Chief Judge
Richman, and Judges Smith, Southwick, Willett, Duncan, and
Engelhardt.
25
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instance, the interpretation must be “the agency’s ‘authoritative’ or ‘official
position,’ rather than any more ad hoc statement not reflecting the agency’s
views.” Ibid. (quoting United States v. Mead Corp., 533 U.S. 218, 257–59 &
n.6 (2001) (Scalia, J., dissenting)). The interpretation must also “in some
way implicate [the agency’s] substantive expertise.” Id. at 2417. Finally, the
interpretation “must reflect [the agency’s] ‘fair and considered judgment.’”
Ibid. (quoting Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155
(2012)). This means an agency will not earn deference for “a merely
‘convenient litigating position’” or for a “new interpretation” that unfairly
disrupts expectations, such as “when an agency substitutes one view of a rule
for another.” Id. at 2418 (first quoting Christopher, 567 U.S. at 155; then citing
Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170 (2007); and then
citing Thomas Jefferson, 512 U.S. at 515).
If an agency’s interpretation survives this gauntlet, Kisor tells courts
to afford the agency “significant leeway to say what its own rules mean,”
thus “enabl[ing] the agency to fill out the regulatory scheme Congress has
placed under its supervision.” Ibid. In other words, courts are to defer to the
agency’s interpretation.
With those principles in mind, we analyze the guideline and
commentary at issue under the Kisor framework.
(1). Text, structure, history, and purpose
Considering the text, structure, history, and purpose of § 4B1.2(b)’s
definition of “controlled substance offense” leads us to conclude that the
definition is genuinely ambiguous. See id. at 2415. Specifically, the definition
does not “directly or clearly address” whether inchoate offenses are included
or excluded. Id. at 2410 (plurality op.).
26
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a. Text
Section 4B1.2(b)’s text poses this question: does an “offense that
prohibits” various drug-related activities include a conspiracy to commit
those same activities? Or to put the question in terms of Vargas’s criminal
history: do conspiracies to possess cocaine and meth with intent to distribute
them count as “offense[s] that prohibit[] the possession of a controlled
substance with intent to distribute” under § 4B1.2(b)? We conclude that the
text does not settle this question.
As we have already observed, the definition says nothing about
conspiracies. It is silent on the subject. See Smith, 989 F.3d at 585 (the
definition “does not tell us, one way or another, whether inchoate offenses
are included or excluded” (quoting Raupp, 677 F.3d at 759)) (and collecting
cases). 32 Yes, § 4B1.2(b) lists various actions (“manufacture, import, export,
distribution, or dispensing of a controlled substance”), and, yes,
“conspiracy” is not one of them. But that does not mean conspiracies are
excluded, as some courts hold. See, e.g., Winstead, 890 F.3d at 1092(concluding the definition “clearly excludes inchoate offenses”).
That is because, as already noted, a conspiracy differs conceptually
from the actions listed in § 4B1.2(b). It is not just another drug-related
activity the drafters left out. A conspiracy is, instead, a punishable step
toward committing any of the listed activities. See Inchoate Offense, Black’s
Law Dictionary (11th ed. 2019); see also Smith, 568 U.S. at 110 & n.3.
So, the fact that § 4B1.2(b) does not list “conspiracy” alongside
32
See also Piper, 35 F.3d at 617 (noting that because § 4B1.2(b) does not “expressly
exclude[]” conspiracies, “the Sentencing Commission’s inclusion of conspiracy
convictions is most accurately viewed as interstitial”).
27
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No. 21-20140
“manufacture” does not support the inference that the definition excludes
conspiracies.
The expressio unius canon does not work that way. See Chevron U.S.A.
Inc. v. Echazabal, 536 U.S. 73, 81 (2002) (“The canon depends on identifying
a series of two or more terms or things that should be understood to go hand in
hand,” thus “supporting a sensible inference that the term left out must have
been meant to be excluded.” (emphasis added) (citing Earl T.
Crawford, The Construction of Statutes 337 (1940))); Vonn,
535 U.S. at 65 (the canon presumes “a commonly associated group or series”
with one member “left unmentioned”); Scalia & Garner, supra, at 107
(expressio unius “must be applied with great caution, since its application
depends so much on context”). Moreover, as discussed below, when the
guidelines differentiate inchoate from substantive offenses, they do so
expressly. See infra III(C)(1)(b).
Our sister circuits have also clashed over the meaning of “prohibit”
in § 4B1.2(b). Compare Dupree, 57 F.4th at 1279, with Richardson, 958 F.3d at
155. As noted, some read “prohibit” to mean “forbid by law” (i.e.,
“criminalize”) the activities listed in § 4B1.2(b). Presumably, this reading
would exclude conspiracies because they criminalize agreeing to do the
activities, not doing the activities themselves. See Iannelli v. United States,
420 U.S. 770, 777 (1975) (“Traditionally the law has considered conspiracy
and the completed substantive offense to be separate crimes.”). Others read
“prohibit” to include “hindering” the listed activities, a reading that easily
brings in conspiracies and attempts. See Richardson, 958 F.3d at 155.
With utmost respect for our colleagues, parsing the verb “prohibit”
is not a helpful way to answer this question. We consider it unlikely that,
while writing § 4B1.2(b), the drafters said to themselves: “How should we
convey that a ‘controlled substance offense’ excludes conspiracies and
28
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No. 21-20140
attempts? Let’s try this: use the verb prohibit, and make the direct object only
particular drug-related actions but not ‘agreements’ or ‘attempts’ to do those
actions. That will make it crystal clear.” 33
Even if we assume the drafters took that awkward approach, however,
the resulting phrase (“offense that prohibits [drug-related activities]”) fails
to do the trick. Recall our hypothetical about a university whose rules
“prohibit cheating on exams.” See supra III(B). Whether that rule is
violated by a failed cheating plot is not going to be settled by picking among
dictionary definitions of “prohibit.” Cf. Smith v. United States, 508 U.S. 223,
241–42 (1993) (Scalia, J., dissenting) (explaining that just because a word can
be used a certain way does not mean that it was used that way). Rather, one
would have to consider the broader structure, history, and purpose of the
university’s rules to see whether a “conspiracy to cheat” sensibly falls within
the rule. See Kisor, 139 S. Ct. at 2415. To those considerations we now turn.
b. Structure
We have already discussed some of the structural considerations in
our Stinson analysis, supra III(B), so we only mention them briefly here.
When the guideline authors want to exclude crimes expressly, they know
how. See, e.g., § 3D1.1(b)(2); § 4A1.2(c). Yet the authors did not take that
approach in § 4B1.2(b), suggesting they did not want to exclude inchoate
33
We agree with the dissent that “[t]he operative question is not what the authors
of § 4B1.2(b) ‘said to themselves,’ but what they included in the text of the Guidelines.”
Post, at 12. But we still have to discern what the text means. One tool for doing that is to
make reasonable inferences about how normal English speakers use words. See Biden v.
Nebraska, 143 S. Ct. 2355, 2379–80 (2023) (Barrett, J., concurring) (explaining that the
meaning of a congressional command, like a parent’s instruction to a babysitter, depends
on reasonable inferences about the speaker’s intent); see also Bostock v. Clayton County, 140
S. Ct. 1731, 1767 (2020) (Alito, J., dissenting) (“[W]hen textualism is properly understood,
it calls for an examination of the social context in which a statute was enacted . . . .”).
29
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crimes. See Dupree, 57 F.4th at 1295 n.1 (Luck, J., dissenting). Or again, when
the authors want to tie a guideline to the violation of certain crimes, they
know how. See, e.g., § 2D1.1(a)(2). Yet the authors did not take that approach
in § 4B1.2(b), suggesting they did not want to exclude the sections on
conspiracies or attempts.
Finally, the statutory backdrop makes inchoate drug offenses “subject
to the same penalties” as the underlying offense. 21 U.S.C. § 846. Given that,
why suppose that the authors would exclude drug conspiracies from the career
offender calculus? If the authors wanted to do that, we would expect express
language instead of implication. See, e.g., Jackson, 60 F.3d at 133 (finding it
“relevant” to commentary’s validity “that Congress has manifested its
intent that drug conspiracies and underlying offenses should not be treated
differently . . . [by] impos[ing] the same penalty for a narcotics conspiracy
conviction as for the substantive offense” (citing 21 U.S.C. § 846)). 34
This view also finds support in how the guidelines address penalties
for individual inchoate crimes. Unless a guideline “expressly” provides
otherwise, see § 2X1.1(c), the rule is that attempts or conspiracies have the
same base offense level as the substantive offense. See § 2X1.1(a); see also
§ 2X1.1 cmt. 2 (“Under § 2X1.1(a), the base offense level [for solicitation,
attempt, or conspiracy] will be the same as that for the substantive offense.”).
To be sure, attempts and conspiracies may get a 3-level decrease in certain
circumstances, but not if defendants completed their roles or were thwarted
34
As discussed, supra III(B), we infer precious little from the inclusion of
“attempt” in § 4B1.2(a)(1), the neighboring “crime of violence” definition. That
provision and § 4B1.2(b) are apples and oranges and so (to mix metaphors) do not shed
much light on each other.
30
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No. 21-20140
from doing so. See § 2X1.1(b)(1), (b)(2). 35 And the commentary states that
this reduction will not be warranted “[i]n most prosecutions for conspiracies
or attempts.” 36
This treatment of inchoate crimes supports our reading of § 4B1.2(b)
in two ways. First, the guidelines generally penalize conspiracies and
attempts the same as the substantive offense. See 2X1.1(a) & cmt. 2; see also
21 U.S.C. § 846 (making inchoate drug crimes “subject to the same
penalties” as underlying offense). That supports reading § 4B1.2(b) as
counting inchoate crimes toward the career offender designation. At a
minimum, it offers no reason to think § 4B1.2(b) unambiguously excludes
inchoate crimes.
Second, when the guidelines mean to distinguish penalties for
inchoate and substantive crimes (as they do in reducing the offense level for
some conspiracies and attempts in § 2X1.1(b)), they do so explicitly. Unlike
§ 2X1.1(b), however, § 4B1.2(b) is silent on the matter.
In sum, the guideline’s structure does not suggest that the § 4B1.2(b)
definition excludes conspiracies and attempts.
35
“If a conspiracy, decrease by 3 levels, unless the defendant or a co-conspirator
completed all the acts the conspirators believed necessary on their part for the successful
completion of the substantive offense or the circumstances demonstrate that the
conspirators were about to complete all such acts but for apprehension or interruption by
some similar event beyond their control.” § 2X1.1(b)(2). The treatment for attempts is
substantially the same. § 2X1.1(b)(1).
36
See § 2X1.1, cmt. background (“In most prosecutions for conspiracies or
attempts, the substantive offense was substantially completed or was interrupted or
prevented on the verge of completion by the intercession of law enforcement authorities or
the victim. In such cases, no reduction of the offense level is warranted.”).
31
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c. History
Next, we consult the history of the contested provision. See Kisor, 139
S. Ct. at 2415 (courts must consider, inter alia, a regulation’s “history” to
discern its meaning). Like the structural inquiry, § 4B1.2(b)’s history resists
the conclusion that it excludes inchoate crimes. To the contrary, the
definition’s history argues for including them.
Many courts that have interpreted § 4B1.2(b), both pre- and post-
Kisor, have not considered the provision’s history and have stopped with the
supposedly “plain” text. 37 But Kisor reminds us that language itself may
gather meaning from its history. See id. at 2415–16; see also Scalia &
Garner, supra, at 352 (contrasting statutory history, defined as “[t]he
enacted lineage of a statute, including prior laws, amendments, codifications,
and repeals,” with disfavored legislative history).
In the 1987 version of the guidelines, a “controlled substance offense”
was initially defined as “an offense identified in 21 U.S.C. §§ 841, 952(a),
955, 955a, 959; §§ 405B and 416 of the Controlled Substance Act as amended
in 1986, and similar offenses.” § 4B1.2(2) (1987). In commentary, the
Commission clarified that this definition “include[d] aiding and abetting,
conspiring, or attempting to commit such offenses, and other offenses that
are substantially equivalent to the offenses listed.” Id. § 4B1.2(2) cmt. n.2.
And this clarification had adequate textual basis in the definition itself;
conspiring to commit any of the delineated offenses surely constituted a
37
See Dupree, 57 F.4th 1269 (no engagement with history); Campbell, 22 F.4th 438(same); Nasir, 17 F.4th 459 (same); Havis, 927 F.3d 382 (same); Castillo, 69 F.4th 648(same); Winstead, 890 F.3d 1082 (same). Our dissenting colleagues likewise decline to
consider the definition’s history.
32
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No. 21-20140
“similar offense” as any of the underlying crimes. 38 Alongside this, the
commentary also explained that equivalent state offenses were included. Ibid.In 1988, the definition of “controlled substance offense” remained
largely the same. But this time it did not refer to the Controlled Substance
Act, instead defining the term as “an offense identified in 21 U.S.C. §§ 841,
845b, 856, 952(a), 955, 955a, 959; and similar offenses.” § 4B1.2(2) (1988).
As before, this definition delineated a list of statutory violations, followed by
the broadening term “similar offenses.” The 1988 commentary continued to
clarify that “similar offenses” referred to inchoate crimes, as well as state
analogues of the listed federal statutes. See id. § 4B1.2(2) cmt. n.2.
Finally, in 1989, the guidelines replaced the cross-references to federal
statutes with the current reference to “federal or state law prohibiting the
manufacture, import, export, or distribution of a controlled substance,”
while removing the “similar offenses” catch-all. § 4B1.2(2) (1989). 39
Significantly, the commentary continued to include inchoate offenses. Id.
§ 4B1.2(2) cmt. n.1.
This throws light on the 1989 amendment. The prior “similar
offenses” language embraced both equivalent state offenses and inchoate
offenses. That language was now replaced with “prohibiting” language that
referred only to a series of drug-related activities. Yet the inclusion of both
(1) equivalent state law offenses and (2) inchoate offenses was understood to
inhere in the new definition—albeit with the state law clarification now in the
38
Vargas’s attorney conceded this point at oral argument. U.S. Court of Appeals
for the Fifth Circuit, 21-20140 USA v. Vargas, January 24, 2023, YouTube, at 7:10,
https://youtu.be/RVjwkCV5M9c?t=430.
39
Although the Commission subsequently made minor alterations to the definition,
this amendment created what is “substantially, and substantively, its current form.” United
States v. Ruth, 966 F.3d 642, 652 (7th Cir. 2020).
33
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guideline itself. In other words, a strong inference exists that the shift from
“similar offenses” to “prohibiting” meant to hold constant the inclusion of
both (1) equivalent state law offenses and (2) inchoate offenses. Thus, if
inchoate offenses are “similar offenses” to the actually completed crimes,
they are also “offenses that prohibit” the completed crimes. 40
d. Purpose
Finally, Kisor tells us to consider the “purpose of a regulation.” 139 S.
Ct. at 2415. The point of the career-offender enhancement is obvious: to give
longer sentences to people who are more culpable because they have
committed multiple drug crimes. It is equally obvious that this rationale
extends to inchoate drug crimes.
People who conspire or attempt to distribute drugs have also
committed drug crimes, just like people who do the actual distributing.
Considering purpose, then, counsels in favor of reading § 4B1.2(b) to include
inchoate offenses. See Piper, 35 F.3d at 617 (including inchoate offenses
accords with the Commission’s “oft-demonstrated preoccupation with
punishing drug traffickers sternly”).
The statutory background also supports including inchoate drug
offenses along with completed offenses. As already noted, in the subchapter
40
One final practical note on history. Most amendments to the commentary today
go through notice and comment and submission to Congress for review. See Dupree, 57
F.4th at 1281 (Pryor, C.J., concurring). The commentary to § 4B1.2 was no different. See
Amendments to the Sentencing Guidelines for United States Courts, 54 Fed. Reg. at 21379.
This is despite the fact that revisions to the commentary are not required to undergo the
same process as guideline revisions. See 28 U.S.C. § 994(x). Nevertheless, Congress had
the opportunity to consider the inchoate offense commentary at the same time that it
reviewed what is substantively the current form of § 4B1.2 itself. This supplements the
already extensive historical record that favors a reading of the guideline that is consistent
with the inclusion of inchoate offenses.
34
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No. 21-20140
on drug crimes, federal law provides that anyone “who attempts or conspires
to commit any offense defined in this subchapter shall be subject to the same
penalties as those prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.” 21 U.S.C. § 846 (emphasis added); see
also 18 U.S.C. § 2(a) (“Whoever commits an offense against the United
States or aids, abets, counsels, commands, induces or procures its
commission, is punishable as a principal.”). By including inchoate offenses
in § 4B1.2(b), the Commission honors these statutory commands.
A glance at the purposes of sentencing is also instructive. Sentences
are meant “to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense.” 18 U.S.C.
§ 3553(a)(2)(A). Sentences deter, protect the public, and rehabilitate. Id.§ 3553(a)(2)(B)–(D). The guidelines are required to reflect these purposes.
See 28 U.S.C. § 991(b)(1)(A). They are also meant to “provide certainty and
fairness in meeting the purposes of sentencing, avoiding unwarranted
sentencing disparities among defendants with similar records who have been
found guilty of similar criminal conduct.” Id. § 991(b)(1)(B); see also Moses,
23 F.4th at 357 (noting that the Commission “promulgated commentary
specifically to satisfy that purpose” (emphasis omitted)).
Reading the § 4B1.2(b) definition to include inchoate offenders serves
all these purposes. See Piper, 35 F.3d at 617 (including inchoate offenses
comports with the “spirit” and “aim” of the guideline). One who repeatedly
conspires to distribute drugs is more culpable than a one-time conspirator—
just as someone who distributes drugs repeatedly is more culpable than a one-
time distributor. It makes perfect sense to punish both repeat offenders more
harshly because both are more culpable. Doing so “reflect[s] the seriousness
of the offense,” “promote[s] the respect for the law,” and “provide[s] just
punishment.” See 18 U.S.C. § 3553(a)(2)(A)–(D).
35
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No. 21-20140
Or compare two offenders: one with two drug distribution convictions
and a conspiracy drug conviction, and another with three drug distribution
convictions. Recognizing that these two offenders are similarly situated for
career offender purposes “provide[s] certainty and fairness” and “avoid[s]
unwarranted sentencing disparities among defendants with similar records.”
See id. § 991(b)(1)(B). In short, reading § 4B1.2(b) to include inchoate
offenses best harmonizes with the purposes the text seeks to advance.
(2). The commentary’s character and context
Kisor also instructs us to consider whether “the character and context
of the agency interpretation entitles it to controlling weight.” Kisor, 139 S.
Ct. at 2416 (citing Christopher, 567 U.S. at 155). Vargas does not contest this
part of the analysis, but we briefly run through it for the sake of completeness.
First, the commentary to § 4B1.2(b) was “actually made by the
[Commission].” Ibid. More than just an “ad hoc statement not reflecting the
[Commission’s] views,” the commentary represents the Commission’s
“authoritative” and “official position.” Ibid. (quoting Mead, 533 U.S. 257–
59). The commentary was, after all, officially promulgated. See Amendments
to the Sentencing Guidelines for United States Courts, 54 Fed. Reg. at 21379.
Next, the commentary doubtless “implicate[s] [the Commission’s]
substantive expertise.” Kisor, 139 S. Ct. at 2417. Finally, the commentary
undeniably reflects the Commission’s “fair and considered judgment.” Ibid.(quoting Christopher, 567 U.S. at 155). It has remained substantively identical
for decades and thus can hardly be said to be a “convenient litigating
position” or “post hoc rationalization advanced to defend past agency action
from attack.” Ibid. (cleaned up).
Thus, the commentary’s character and context show that it is owed
deference under Kisor.
36
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No. 21-20140
III(D). Rule of Lenity 41
We conclude with a brief note on the rule of lenity. Although Vargas
does not raise the issue, some judges have argued that the rule of lenity should
resolve ambiguity in a guideline in the criminal defendant’s favor. See, e.g.,
Nasir, 17 F.4th at 472–74 (Bibas, J., concurring). We doubt that the rule of
lenity applies to the guidelines, however. And even if it does, it applies only
in the face of “grievous ambiguity,” a standard not met here. See United
States v. Castleman, 572 U.S. 157, 172–73 (2014) (citation omitted).
The rule of lenity is animated by purposes that do not apply to merely
advisory guidelines. First, the rule reflects concerns about fair notice and due
process of law: “[F]air warning should be given to the world in language that
the common world will understand, of what the law intends to do if a certain
line is passed.” McBoyle v. United States, 283 U.S. 25, 27 (1931). This confines
ambiguous criminal statutes within their clear scope. But with respect to the
guidelines, fair notice “is not at issue because the Guidelines ‘do not bind or
regulate the primary conduct of the public.’” United States v. Wright, 607
F.3d 708, 719 (11th Cir. 2010) (Pryor, J., concurring) (quoting Mistretta, 488
U.S. at 396).
Second, the rule of lenity reinforces the separation of powers by
preventing courts from expanding vague statutes. “[B]ecause of the
seriousness of criminal penalties, and because criminal punishment usually
represents the moral condemnation of the community, legislatures and not
courts should define criminal activity.” United States v. Bass, 404 U.S. 336,
348 (1971). Understandably, when the guidelines were mandatory and thus
41
This Part represents the views of eight out of sixteen judges: Chief Judge
Richman, and Judges Jones, Smith, Southwick, Duncan, Engelhardt,
Oldham, and Wilson.
37
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No. 21-20140
“ha[d] the force and effect of laws,” Booker v. United States, 543 U.S. 220,
234 (2005), lenity influenced interpretation of the guidelines’ ambiguous
provisions. See Wright, 607 F.3d at 718 (Pryor, J., concurring). In a post-
Booker world, however, the guidelines are advisory. United States v. Smith,
977 F.3d 431, 435 (5th Cir. 2020) (citation omitted). In that world,
separation-of-powers concerns are vitiated because now-advisory guidelines
do not usurp the congressional prerogative to ordain punishments for
criminal offenses. Ibid.One of our Third Circuit colleagues, while acknowledging that the
guidelines are advisory, argues that courts should “still attend to the rule [of
lenity] and its animating purposes” because the guidelines “exert a law-like
gravitational pull on sentences.” Nasir, 17 F.4th at 474 (Bibas, J.,
concurring). Our dissenting colleagues share that view. Post, at 16–17. With
respect, we disagree because determining whether lenity applies to the
guidelines should be based on their legal, not practical, effects.
Our view finds support in the Supreme Court’s decision in Beckles v.
United States, 580 U.S. 256 (2017). There, the Court held that the guidelines
are not susceptible to void-for-vagueness challenges precisely because their
now-advisory role does not implicate concerns about vagueness. See id. at
266–67. It was the guidelines’ advisory status, not their “gravitational pull,”
that influenced whether the vagueness doctrine applied. We apply the same
logic to the rule of lenity. And doing so leads us to believe that it “no longer
applies to the purely advisory Guidelines.” Smith, 977 F.3d at 435.
But even if lenity does apply, the guideline at issue here is not
“grievously ambiguous.” See Wooden v. United States, 142 S. Ct. 1063, 1075
(2022) (Kavanaugh, J., concurring). Lenity only comes into play “when a
criminal statute contains a ‘grievous ambiguity or uncertainty,’ and ‘only if,
after seizing everything from which aid can be derived,’ the Court ‘can make
38
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No. 21-20140
no more than a guess as to what Congress intended.’” Ocasio v. United States,
578 U.S. 282, 295 n.8 (2016) (quoting Muscarello v. United States, 524 U.S.
125, 138–39 (1998)). This differs from the threshold level of ambiguity
needed to trigger Kisor deference, which applies when a regulation is only
“genuinely ambiguous.” Kisor, 139 S. Ct. at 2415 (emphasis added).
The § 4B1.2(b) definition of controlled substance offense may be
ambiguous, but it is not “grievously” so. As our application of Kisor shows,
the commentary advances a reading of that text that is reasonable, that finds
ample support in the broader structure of the guidelines, and that is
consistent with the way the Commission has always read the definition in its
various iterations. So, even if lenity applies, it still would not overcome the
deference due to the commentary.
III(E). Summary 42
Stinson squarely applies to the guidelines commentary at issue here
and was not overruled or modified by Kisor. As an inferior court, then, we
must apply Stinson. Under its framework, the commentary is binding because
it does not “violat[e] the dictates of” § 4B1.2(b). Stinson, 508 U.S. at 43.
Accordingly, we reaffirm our longstanding precedent that inchoate offenses
like conspiracy are included in the definition of “controlled substance
offense.” See Lightbourn, 115 F.3d 291.
Alternatively, even under Kisor we would defer to the commentary.
The definition’s text, structure, history, and purpose show that the
commentary takes a reasonable view of a genuinely ambiguous guideline.
42
This Part represents the views of five out of sixteen judges: Chief Judge
Richman, and Judges Smith, Southwick, Duncan, and Engelhardt.
39
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No. 21-20140
Because it is undisputed that the other Kisor preconditions are met, defer we
must. Finally, the rule of lenity does not affect our analysis of the guidelines.
IV. Conclusion 43
Vargas was properly sentenced as a career offender under § 4B1.1(a)
because he was guilty of three controlled substance offenses as defined by
§ 4B1.2(b) and its accompanying commentary.
We therefore AFFIRM Vargas’s sentence.
43
This Part represents the views of ten out of sixteen judges: Chief Judge
Richman, and Judges Jones, Smith, Southwick, Higginson, Willett,
Ho, Duncan, Engelhardt, and Oldham.
40
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No. 21-20140
Andrew S. Oldham, Circuit Judge, joined by Jones, Circuit Judge,
concurring in part:
I agree with the majority that we are bound by Stinson v. United States,
508 U.S. 36 (1993). But even if an inferior court could reconsider Stinson in
light of subsequent Supreme Court decisions, the relevant case is United
States v. Booker, 543 U.S. 220 (2005)—not Kisor v. Wilkie, 139 S. Ct. 2400
(2019). I therefore join all but Part III.C of the majority opinion.
I.
Start with Stinson. The key premise of the case is that the Guidelines
bind district courts. The Court began its analysis by stating: “As we have ob-
served, ‘the Guidelines bind judges and courts in the exercise of their uncon-
tested responsibility to pass sentence in criminal cases.’” Stinson, 508 U.S.
at 42 (quoting Mistretta v. United States, 488 U.S. 361, 391 (1989)). From
there, the Court noted that it had already extended this premise to the Sen-
tencing Commission’s policy statements:
The principle that the Guidelines Manual is binding on federal
courts applies as well to policy statements. In Williams v.
United States, 503 U.S. 193, 201 (1992), we said that
“[w]here . . . a policy statement prohibits a district court from
taking a specified action, the statement is an authoritative guide
to the meaning of the applicable Guideline.”
Id. at 42.
From these two premises (i.e., the binding nature of the Guidelines
and the binding nature of the Guidelines’ policy statements), the Stinson
Court concluded that the Guidelines’ commentary was also binding:
Commentary which functions to “interpret [a] guideline or ex-
plain how it is to be applied,” USSG § 1B1.7, controls, and if
failure to follow, or a misreading of, such commentary results
in a sentence “select[ed] . . . from the wrong guideline range,”
41
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No. 21-20140
Williams, 503 U.S. at 203, that sentence would constitute “an
incorrect application of the sentencing guidelines” under 18
U.S.C. § 3742(f)(1). . . . Our holding in Williams dealing with
policy statements applies with equal force to the commentary
before us here.
Id. at 42–43.
Thus, the cornerstone of the Stinson regime is the binding nature of
the Guidelines. Of course, the Booker Court held that the Guidelines were not
binding on federal courts. See 543 U.S. at 245. So if we were free to predict
what the Supreme Court would do today, one might reasonably guess that
Stinson would fall. Of course, we are not so free because “it is th[e Supreme]
Court’s prerogative alone to overrule one of its precedents.” State Oil Co. v.
Khan, 522 U.S. 3, 20 (1997).
II.
Even if we were at liberty to update Stinson with a subsequent
Supreme Court decision, I do not understand why we would choose Kisor to
do the updating. Given that Booker renders the Guidelines themselves
advisory, why would we apply “Kisor deference” or any other kind of
“deference” to the Guidelines’ commentary?
Consider by analogy the Federal Rules of Civil Procedure. The
Federal Rules and the Guidelines share similar promulgation procedures. See
28 U.S.C. §§ 2072–2074 (Federal Rules); 28 U.S.C. § 994(p), (x)
(Sentencing Guidelines). Both go through public notice-and-comment and
then are submitted to Congress. If Congress fails to act, both go into effect at
a set date.
The Federal Rules and the Guidelines are often promulgated with
notes from the committees that helped draft them. For the former, an
advisory rules committee appointed by the Supreme Court (“Advisory
42
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No. 21-20140
Committee”) can promulgate “committee notes.” For the latter, the
Sentencing Commission can promulgate “commentary.” Such notes and
commentary can be sent to Congress, but no statute requires it. 1 And the
commentary at issue in this case was, in fact, submitted to Congress. See
Amendments to the Sentencing Guidelines for United States Courts, 54 Fed.
Reg. 21348, 21379 (May 17, 1989). 2
The Advisory Committee’s notes to the Federal Rules are not entitled
to Seminole Rock, Auer, or any other sort of deference. Instead, judges treat
the Advisory Committee’s notes like legislative history. See 4 Charles
Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1029 (4th ed.) (noting committee notes “provide something
akin to a ‘legislative history’ of the rules”); Stinson, 508 U.S. at 43 (referenc-
ing the Advisory Committee’s notes as akin to legislative committee re-
ports); Tome v. United States, 513 U.S. 150, 160 (1995) (employing the notes
as a “useful guide in ascertaining the meaning of the Rules” and a “respected
source of scholarly commentary”). Judges can refer to them, but they need
not defer to them. In the words of Justice Scalia:
The Advisory Committee’s insights into the proper interpre-
tation of a Rule’s text are useful to the same extent as any
1
As to the committee notes to the Federal Rules, see, e.g., Letter from John G.
Roberts, Jr., Chief Justice, to Nancy Pelosi, Speaker of the House of Representatives,
Supreme Court of the United States Orders – Term Year 2021 (Apr. 11, 2022)
(transmitting notes). As to the Guidelines’ commentary, see United States v. Dupree, 57
F.4th 1269, 1280–81 (11th Cir. 2023) (en banc) (W. Pryor, C.J., concurring) (noting
Guidelines’ commentary is often submitted to Congress even if not required by statute).
2
Stinson rejected an analogy between the Guidelines commentary and the Advisory
Committee Notes because the commentary at issue in Stinson “was issued well after the
guideline . . . had been promulgated” so it could not capture the drafter’s intent. 508 U.S.
at 44. But that’s not what happened in this case; the commentary was submitted to
Congress alongside the Guideline. And as Stinson acknowledged, “much commentary [is]
issued at the same time as the guideline it interprets.” Ibid.
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scholarly commentary. But the Committee’s intentions have no
effect on the Rule’s meaning. Even assuming that we and the
Congress that allowed the Rule to take effect read and agreed
with those intentions, it is the text of the Rule that controls.
Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 557 (2010) (Scalia, J., con-
curring).
In a post-Booker world, one could reasonably argue that the commen-
tary to the Guidelines should not receive any deference that the Advisory
Committee’s notes to the Federal Rules do not. Deference to the former but
not the latter would be particularly incongruous because, unlike the Guide-
lines, the Federal Rules are binding on federal courts.
Well hold on, you might say, even after Booker the Guidelines are still
binding in some sense. True, the Supreme Court has said that district courts
must start their sentencing decisions by calculating the appropriate Guide-
lines range. See, e.g., Peugh v. United States, 569 U.S. 530, 541 (2013)
(“[D]istrict courts must begin their analysis with the Guidelines and remain
cognizant of them throughout the sentencing process.” (quotation omitted)).
But that does not make the Guidelines binding in the same sense as a federal
statute, the Federal Rules, or even a lawfully promulgated federal regulation.
We have an abundance of post-Booker cases holding that “even if the correct
guidelines range was not considered,” the error is harmless upon a convincing
showing that “the district court would have imposed the same sentence had
it not made the error, and . . . that it would have done so for the same reasons
it gave at the prior sentencing.” United States v. Guzman-Rendon, 864 F.3d
409, 411 (5th Cir. 2017) (emphasis added) (quotation omitted); see also, e.g.,
United States v. Reyna-Aragon, 992 F.3d 381, 388 (5th Cir. 2021); United
States v. Redmond, 965 F.3d 416, 420–22 (5th Cir. 2020); United States v. Cas-
tro-Alfonso, 841 F.3d 292, 298–99 (5th Cir. 2016); United States v. Richardson,
676 F.3d 491, 511–12 (5th Cir. 2012); United States v. Ibarra-Luna, 628 F.3d
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712, 714 (5th Cir. 2010). But of course, no district court could avoid reversal
by announcing that it found a federal statute, Federal Rule, or lawful regula-
tion merely advisory and that it would reach the same result in any event.
* * *
Post-Booker, the world is topsy-turvy. The Sentencing Guidelines are
not binding, but the commentary is. The Federal Rules are binding, but the
Advisory Committee’s notes are not. Regardless, until the Supreme Court
overrules Stinson, we are bound to follow it.
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Jennifer Walker Elrod, Circuit Judge, joined by Stewart,
Haynes, Graves, Wilson, and Douglas, Circuit Judges, dissenting
in part and dissenting from the judgment: ∗
Whether Kisor modified Stinson is an unusually thorny question of
vertical stare decisis, as evidenced by the growing division among the federal
circuits.1 But regardless of whether we proceed under Stinson or Kisor, the
commentary at issue here deserves no deference. Whatever way one looks at
it—through the lens of consistency between the relevant Guideline and its
commentary (Stinson) or ambiguity in the Guideline itself (Kisor)—the
Guidelines definition of “controlled substance offense” does not include
conspiracy convictions as the commentary contends. I therefore take no
position on Part III(A) of the majority opinion. But I dissent from Parts III(B)
and (C). The commentary fails under both Stinson and Kisor.
Separate and apart from my views on Stinson, Kisor, and Application
Note 1 to U.S.S.G. § 4B1.2(b), I also dissent from the plurality’s holding in
Part III(D) because it improperly cabins a “time-honored” interpretive
canon. Cargill v. Garland, 57 F.4th 447, 470 (5th Cir. 2023) (en banc). I agree
with my colleagues on other circuits who would apply the rule of lenity when
interpreting the Sentencing Guidelines. See United States v. Campbell, 22
F.4th 438, 446 (4th Cir. 2022) (observing that “the rule of lenity . . . has some
force” when interpreting the Guidelines (internal quotation marks and
∗
Judge Graves joins in full. Judges Stewart, Haynes, and Douglas
join as to Sections I–III. Judge Wilson joins as to Sections II and III.
1
See United States v. Castillo, 69 F.4th 648 (9th Cir. 2023) (applying the Kisor
framework); United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc) (same); United
States v. Riccardi, 989 F.3d 476 (6th Cir. 2021) (same); United States v. Nasir, 17 F.4th 459(3d Cir. 2021) (en banc) (same). But see United States v. Maloid, __ F.4th __, 2023 WL
4141073 (10th Cir. June 23, 2023) (applying Stinson); United States v. Moses, 23 F.4th 347(4th Cir. 2022) (same). Both parties here agree that Kisor applies to Guidelines
commentary. Blue Br. 16; Red Br. 29.
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citation omitted)); United States v. Nasir, 17 F.4th 459, 472–74 (3d Cir. 2021)
(Bibas, J., concurring) (same); United States v. Winstead, 890 F.3d 1082, 1092
n.14 (D.C. Cir. 2018) (same).
I
The majority opinion follows the Tenth and Fourth Circuits in
holding that Stinson continues to govern judicial deference to the Sentencing
Commission’s commentary to its own Guidelines. In doing so, it rejects the
conclusion of the Eleventh, Ninth, Sixth, and Third Circuits that Kisor
modified the Stinson framework.
The majority opinion chiefly relies on differences between the
administrative agencies at issue in Kisor and the Sentencing Commission at
issue in Stinson. I certainly agree that the Commission is no administrative
agency. As “a sort of hybrid body that does not fit squarely within any of the
three branches of government,” it has aptly been described as an “odd duck”
in our tripartite system. United States v. Havis, 907 F.3d 439, 442, 443 (6th
Cir. 2018), rev’d en banc on other grounds. See also Mistretta v. United States,
488 U.S. 361, 384 (1989) (describing the Commission as a “peculiar
institution”).
That being said, Stinson and Kisor are clearly related. Stinson held that
the standard of deference then-applicable to an administrative agency’s
interpretations of its own legislative rules also applies to the Sentencing
Commission’s interpretations of its Guidelines. Stinson v. United States, 508
U.S. 36, 45 (1993). Stinson then adopted a formulation of that standard that
Kisor has now deemed a “reflexive” “caricature of the doctrine.” Kisor v.
Wilkie, 139 S. Ct. 2400, 2415 (2019). The argument that Kisor’s correctives
are more sweeping than the majority opinion supposes may therefore have
some merit.
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Those are the relevant inputs. What we should do with them is
another matter. As faithful middle managers, “[w]e are bound to follow the
Supreme Court precedent that most squarely controls our case.” Freedom
from Religion Found. v. Mack, 4 F.4th 306, 315 (5th Cir. 2021). But it is not
always clear which case squarely controls. Old cases are sometimes overruled
or modified without fanfare. See, e.g., id. (applying Town of Greece v.
Galloway, 572 U.S. 565 (2014), rather than Lemon v. Kurtzman, 403 U.S. 602(1971), even though Galloway did not expressly overrule Lemon); Trump v.
Hawaii, 138 S. Ct. 2392, 2423 (2018) (taking the “opportunity to make
express what is already obvious” by explicitly stating that Korematsu v.
United States, 323 U.S. 214 (1944) is no longer good law).
At the same time, we are not infrequently admonished to “leave to
[the Supreme Court] the prerogative of overruling its own decisions.”
Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989). See
also Mallory v. Norfolk S. R. Co., 143 S. Ct. 2028, 2038 (2023) (criticizing the
Pennsylvania Supreme Court for treating an on-point Supreme Court
decision as having been implicitly overruled); Hohn v. United States, 534 U.S.
236, 252–53 (1998) (“Our decisions remain binding precedent until we see
fit to reconsider them, regardless of whether subsequent cases have raised
doubts about their continuing vitality.”).
We would benefit from further guidance in this area. But we need not
determine whether Stinson or Kisor applies today because Vargas prevails
under either framework.
II
Assuming arguendo that Stinson controls, “[i]t does not follow that
commentary is binding in all instances.” Stinson, 508 U.S. at 43. Stinson
deference is not absolute. It incorporates a fail-safe for commentary that is
“plainly erroneous or inconsistent” with the Sentencing Guidelines
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themselves. Id. at 45. That backstop exists for precisely this situation, in
which the commentary at issue purports to change the meaning of a term.
See United States v. Riccardi, 989 F.3d 476, 493 (6th Cir. 2021) (Nalbandian,
J., concurring in part) (“Stinson requires that commentary interpret the
guidelines, not contradict or add to them.”).
A
The career offender designation is a three-strikes rule. It means a
significantly extended Guidelines sentence for adult offenders who return to
court for sentencing on a new felony “crime of violence” or “controlled
substance offense” after having already received two prior felony “crime of
violence” or “controlled substance offense” convictions. U.S.S.G.
§ 4B1.1(a).
When Andres Vargas appeared at his sentencing hearing in April of
2021, he already had a conviction for a substantive drug offense and a
conviction for conspiracy to commit another drug offense to his name.
Because Vargas was an adult, and because he was presently being sentenced
for another conspiracy drug offense, the Government sought to designate
him a career offender on the theory that he was being sentenced for his third
“controlled substance offense.”
The problem with that theory is that it is belied by the plain text of the
Guidelines, which defines the term “controlled substance offense” to
include only substantive drug offenses and not conspiracies. Guidelines
§ 4B1.2(b) states that a “controlled substance offense” is:
[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 a counterfeit substance) or the
possession of a controlled substance (or a counterfeit
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substance) with intent to manufacture, import, export,
distribute, or dispense.
Because the Guideline only identifies substantive drug crimes as qualifying
offenses, Vargas only has one strike. Not three. Two of his convictions—his
prior conspiracy conviction as well as the conspiracy conviction giving rise to
this appeal—do not count.
That should be the end of the analysis. It is well established that a
“definition which declares what a term ‘means’ . . . excludes any meaning
that is not stated.” Burgess v. United States, 553 U.S. 124, 130 (2008) (citation
omitted). Therefore, the commentary’s attempt to add conspiracy offenses,
see § 4B1.2(b) cmt. n.1, must be disregarded as “plainly erroneous or
inconsistent” with the Guidelines. Stinson, 508 U.S. at 45. Many of our
sister circuits have arrived at the same conclusion. United States v. Castillo,
69 F.4th 648, 652 (9th Cir. 2023) (“The text of § 4B1.2(b) does not identify
conspiracy to commit any of the offenses as such an offense.”); United States
v. Dupree, 57 F.4th 1269, 1277 (11th Cir. 2023) (en banc) (“The definition
does not mention conspiracy or attempt or any other inchoate crimes.”);
Nasir, 17 F.4th at 471 (“The guideline does not even mention inchoate
offenses.”); Campbell, 22 F.4th at 444 (“The text of U.S.S.G. § 4B1.2(b)
contains a lengthy definition . . . that does not mention attempt offenses.”);
United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019) (en banc) (“The
guideline expressly names the crimes that qualify as controlled substance
offenses . . . none are attempt crimes.”); Winstead, 890 F.3d at 1091(“Section 4B1.2(b) presents a very detailed ‘definition’ of controlled
substance offense that clearly excludes inchoate offenses.”).
B
The majority opinion itself acknowledges that § 4B1.2(b) “says
nothing one way or the other about conspiracies and attempts.” Ante, at 16.
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But while I would read this omission as an exclusion, the majority opinion
treats it as an invitation. The logic seems to be that if the Guidelines are not
explicit in renouncing a qualifying offense, the Sentencing Commission is
free to include it by means of its commentary.
It does not take a great stretch of the imagination to see the pitfalls of
a rule that writes the Sentencing Commission that kind of blank check. Cf.
Castillo, 69 F.4th at 663 (noting “grave constitutional concerns” raised by
deference to Application Note 1); Campbell, 22 F.4th at 446 (warning that
deference to Application Note 1 permits “circumvention of the checks
Congress put on the Sentencing Commission”) (citation omitted); Havis,
927 F.3d at 386–87 (same). It is also difficult to square with the mechanism
set up by Congress. Biden v. Nebraska, 143 S. Ct. 2355, 2379 (2023) (Barrett,
J., concurring) (explaining that “[c]ontext . . . includes common sense”).
There is little point in subjecting the Guidelines to notice and comment and
congressional review if the Commissioners may unilaterally add to those
Guidelines through its commentary. Castillo, 69 F.4th at 663. That is why
Stinson described Guidelines commentary as having the limited “functional
purpose of . . . assist[ing] in the interpretation and application” of the
Guidelines. Stinson, 508 U.S. at 45. Only the Guidelines are “promulgate[d]
by virtue of an express congressional delegation of authority for rulemaking”
and accompanied by the requisite constitutional safeguards. Id. at 44.
In any event, no rule of deference or construction can hide the fact
that Application Note 1 is adding something altogether new to the Guidelines
definition of “controlled substance offense.” Cf. Havis, 927 at 386
(concluding that the commentary impermissibly “add[ed] an offense not
listed in the guideline”); Dupree, 57 F.4th at 1278 (agreeing). The majority
opinion makes several attempts to avoid the plain meaning of the Guideline’s
text, but none are persuasive.
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1
The majority opinion spills a great deal of ink in an effort to excuse the
text of § 4B1.2(b) from the negative-implication canon: the common-sense
semantic rule reflecting the shared intuition of English speakers that “[t]he
expression of one thing implies the exclusion of others.” Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107. It
points to a limited exception to this rule under which “the canon does not
tell us that a case was provided for by negative implication unless an item
unmentioned would normally be associated with the items listed.” Barnhart
v. Peabody Cole Co., 537 U.S. 149, 169 n.12 (2003). See also Chevron U.S.A.
Inc. v. Echazabal, 536 U.S. 73, 81 (2002) (explaining that negative implication
“canon depends on identifying a series of two or more terms or things that
should be understood to go hand in hand, which is abridged in circumstances
supporting a sensible inference that the term left out must have been meant
to be excluded”).
This exception is not without its critics. Justice Scalia accused it of
being not only “unheard-of,” but “absurd,” “since it means that the more
unimaginable an unlisted item is, the more likely it is not to be excluded.”
Barnhart, 537 U.S. at 180, 181 (Scalia, J., dissenting). 2 More to the point, this
2
The majority opinion also cites the uncontroversial principle that the negative
implication canon applies only when the things specified “can reasonably be thought to be
an expression of all that shares in the grant or prohibition involved.” Ante, at 17 n. 23 (citing
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107).
Thus, “[t]he sign outside the restaurant ‘No dogs allowed’ cannot be thought to mean that
no other creatures are excluded.” Reading Law, 107. “On the other hand, the sign outside
a veterinary clinic saying ‘Open for treatment of dogs, cats, horses, and all other farm and
domestic animals’ does suggest (by its detail) that” unmentioned animals will not be
treated. Id. Here the detail and specificity of § 4B1.2(b) places it in the latter category and
communicates that the definition is exhaustive. Moreover, § 4B1.2(b)’s status as the
definition of a term is itself good reason to conclude that the definition communicates the
complete scope of that term.
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case bears no resemblance to those in which we have applied the limited
exception to the negative implication canon.
Consider the example cited by the majority opinion, United States v.
Cartagena-Lopez, 979 F.3d 356 (5th Cir. 2020). There we held that a
statutory provision excluding a defendant’s time in jail from the calculation
of his supervised release term did not abrogate the common law fugitive
tolling doctrine, under which a defendant is also precluded from tolling a
period during which he is on the run. Id. at 362–63. In doing so, we relied on
the fact that the relevant statutory provision was “not a standalone tolling
provision” and did not purport to be about “tolling per se,” but rather tolling
in a particular circumstance. Id. at 362. That circumstance—being a
fugitive—was not so closely related to going back to jail for another crime
that we could read the enumeration of the latter reason for tolling to exclude
tolling for the former reason. Id. We also relied on the bedrock principle that
“[i]n interpreting statutes, we presume that Congress is aware of the
common law and does not undertake to change it lightly.” Id. at 362–63. The
fugitive tolling doctrine is a centuries-old rule rooted in the “widely
recognized” principle that a convict should not benefit from his wrongdoing.
Id. at 362. Because implied changes to such longstanding rules are
“disfavored,” we declined to read the Act to “render the common law of
parole obsolete.” Id. at 363.
The Guidelines definition of “controlled substance offense” could
not be more different. It is a standalone provision with no common law
pedigree and which purports to provide the complete definition of the term.
What is more, substantive and conspiracy offenses are associated items.
They go hand in hand because they are both offenses in the pool of crimes
from which the Sentencing Commission could have pulled when deciding
which offenses would qualify as a “controlled substance offense” for
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purposes of the career offender designation. Substantive drug crimes were
chosen. Conspiracies were not. Judge Thapar puts the point deliciously:
Interpreting a menu of “hot dogs, hamburgers, and
bratwursts” to include pizza is nonsense. Nevertheless, that is
effectively what the government argues here when it says that
we must apply deference to a comment adding to rather than
interpreting the Guidelines.
Havis, 907 F.3d at 450 (Thapar, J., concurring).
The majority opinion’s contrary conclusion relies on a basic
distinction between substantive and conspiracy offenses. While a substantive
offense is its own completed crime, a conspiracy offense is “[a] step toward
the commission of another crime.” Ante, at 19 (quoting Inchoate Offense,
Black’s Law Dictionary (11th ed. 2019)). Fair enough. Conspiracy “has
ingredients, as well as implications, distinct from the completion of the
unlawful project.” Pinkerton v. United States, 328 U.S. 640, 644 (1946). But
no two crimes are exactly the same. The question for our purposes is whether
a conspiracy to commit a drug offense is so different from a substantive drug
offense that we would not expect a reasonable English speaker to place
conspiracies in the category of drug offenses that might possibly be included
in the definition of the term “controlled substance offense.”
I do not think that is a close call. To be clear, conspiracy offenses are
distinct offenses—not simply a way of committing a substantive offense.
That is why a defendant can be charged with two separate offenses—one
count of conspiracy and one count for the substantive offense—when he
completes a drug crime. Pinkerton, 328 U.S. at 643. It is difficult to
understand how a definition could enumerate offenses relating to “import,
export, [and] distribution,” as well as “dispensing” and “possession,” but
not account for one of the most (perhaps the most?) frequently charged
federal crimes: conspiracy.
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2
The plain reading of § 4B1.2(b) to include only substantive drug
offenses is bolstered by its neighboring provisions. Housed within the same
Guideline is the definition of the term “crime of violence,” the other
predicate category of offense which can lead to a career offender designation.
Unlike “controlled substance offense,” the definition of “crime of violence”
explicitly includes attempt crimes. See U.S.S.G. § 4B1.2(a) (“The term
‘crime of violence’ means any offense . . . that — (1) has as an element the
use, attempted use, or threatened use of physical force against the person of
another.” (emphasis added)).
When faced with adjacent definitions, one of which expressly includes
a category and one of which does not, the ordinary reader draws the inference
that the omission is meaningful. That is why “[a]textual judicial
supplementation is particularly inappropriate when, as here,” the drafter has
demonstrated “that it knows how to adopt the omitted language or
provision.” Rotkiske v. Klemm, 140 S. Ct. 355, 361 (2019).
The majority opinion rejects the significance of this context on the
ground that the two definitions are not parallel. While a “crime of violence”
is defined by reference to its elements, the term “controlled substance
offense” is defined in terms of what it prohibits. Ante, at 20–21. Right off
the bat, this may be a distinction without a difference. A criminal offense that
prohibits certain conduct can only do so by making the commission of that
conduct an element of the offense.
In any event, the majority opinion is missing the forest for the trees.
The semantic point is that, when drafting these two neighboring definitions,
the Sentencing Commission used explicit language to indicate the inclusion
of inchoate offenses in the definition of the term “crime of violence.” Why
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would it change its tactics to rely on silent implication when constructing the
very next definition?
3
The majority opinion also indulges the Government’s “creative
dictionary use” of the term “prohibit.” Dupree, 57 F.4th at 1288 (Grant, J.,
concurring in the judgment). The Government maintains that “prohibit”
could mean “prevent or hinder.” Thus, it says, § 4B1.2(b) can be read to
include conspiracies because the criminalization of conspiracies to commit
drug offenses would “hinder” the commission of the substantive drug
offenses named in the Guideline.
The Government’s reading violates one of the most basic rules of
statutory construction: “Words are to be understood in their ordinary,
everyday meanings.” Reading Law at 69. See also Nebraska, 143 S. Ct. at
2378 (Barrett, J., concurring) (“To strip a word from its context is to strip
that word of its meaning.”). The question is not whether “prohibit” could
possibly mean “hinder” in some unlikely hypothetical. Instead, the question
is whether the word carries that meaning in context. It does not. Indeed, like
Judge Grant, “I personally cannot think of any context where ‘prohibit’
naturally means ‘hinder.’” Dupree, 57 F.4th at 1288.
That includes the university code hypothetical suggested by the
majority opinion. Ante, at 23. As a preliminary matter, university codes
typically do distinguish between inchoate and substantive violations. 3 Aside
3
See Edward N. Stoner II & John Wesley Lowery, Navigating Past the “Spirit of
Insubordination:” A Twenty-First Century Model Student Conduct Code With a Model Hearing
Script, 31 J.C. & U.L. 1, 27 (2004) (“Any student found to have committed or to have
attempted to commit the following misconduct is subject to the disciplinary sanctions
outlined in Article IV: (1) Acts of dishonesty, including . . . (a) cheating, plagiarism, or other
forms of academic dishonesty.”).
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from that, section 4B1.2(b) is not a university code. It is a definition made by
reference to the federal criminal code. Whatever might be true of other
genres, federal criminal law does not use “prohibit” when it means
“hinder.” Cf. Nebraska, 143 S. Ct. at 2378 (2023) (Barrett, J., concurring)
(explaining that “[b]ackground legal conventions . . . are part of [a] statute’s
context”). Such literalism defies what “every lawyer and citizen knows[:]
criminal law is not suggestive—it either bans conduct or it allows it.” Dupree,
57 F.4th at 1288. See also Havis, 927 F.3d at 386 n.4 (“[T]he guideline’s
boilerplate use of the term ‘prohibits’ simply states the obvious: criminal
statutes proscribe conduct.”); Campbell, 22 F.4th at 448 (agreeing and
adding that “[i]nterpreting ‘prohibits’ to include anything that makes the
outlawed conduct more likely to occur would sweep into criminal statutes a
vast swath of conduct based on a secondary dictionary definition”); Dupree,
57 F.4th at 1278–79 (agreeing).
4
At another point, the majority opinion appears to derive some import
from what the Sentencing Commission likely “said to themselves” while
drafting § 4B1.2(b). Ante, at 28. The operative question is not what the
authors of § 4B1.2(b) “said to themselves,” but what they included in the
text of the Guidelines. “Men intend what they will; but it is only the laws
that they enact which binds us.” Antonin Scalia, Common-Law Courts in
a Civil Law System: The Role of United States Federal Courts in Interpreting th
e Constitution and Laws, in A Matter of Interpretation 3, 17 (new ed. 2018). 4
4
The majority’s thought experiment is self-defeating in any event. It is just as
unlikely that the drafters said to themselves: “How should we convey that ‘controlled
substance offense’ includes conspiracies and attempts. Let’s try this: use the verb prohibit,
because a secondary definition of that term is hinder and offenses that criminalize
conspiracies clearly hinder the substantive offense.”
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* * *
“When a statute includes an explicit definition, we must follow that
definition.” Tanzin v. Tanvir, 141 S. Ct. 486, 490 (2020) (quoting Digital
Realty Trust, Inc. v. Somers, 138 S. Ct. 767, 777 (2018)). I would apply that
rule here to hold—contra Application Note 1—that the Guidelines definition
of “controlled substance offense” does not include conspiracies.
III
The commentary also fails under the Kisor framework, and on largely
the same grounds. After all, Kisor sets a higher bar than Stinson. If something
fails Stinson, it necessarily fails Kisor. Under Kisor, we first ask whether
U.S.S.G. § 4B1.2(b) is ambiguous. For all of the reasons stated above, it is
not. The career-offender Guideline “just means what it means—and the
court must give it effect.” Kisor, 139 S. Ct. at 2415.
Kisor instructs that “a court should not afford Auer deference unless
the regulation is genuinely ambiguous.” Id. Moreover, “before concluding
that a rule is genuinely ambiguous, a court must exhaust all the ‘traditional
tools’ of construction.” Id. The “court must carefully consider the text,
structure, history, and purpose of a regulation, in all the ways it would if it
had no agency to fall back on.” Id. (quotation marks and alterations omit-
ted). 5
5
That is not to say that ambiguity alone is sufficient to trigger deference under
Kisor. Even in the presence of an ambiguous rule or regulation, an agency interpretation is
only entitled to deference if it is “reasonable.” Kisor, 139 S. Ct. at 2415. “In other words,
it must come within the zone of ambiguity the court has identified after employing all its
interpretive tools.” Id. at 2415–16. Assuming an agency can check both of these boxes,
“[s]till, we are not done—for not every reasonable agency reading of a genuinely
ambiguous rule should receive Auer deference.” Id. at 2416. At the final step, “a court
must make an independent inquiry into whether the character and context of the agency
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Section 4B1.2(b) expressly identifies those crimes that qualify as con-
trolled substance offenses, and inchoate crimes are not among them. Camp-
bell, 22 F.4th at 442 (“The text of U.S.S.G § 4B1.2(b) does not state or in
any way indicate that aiding and abetting, conspiracy, and attempt are ‘con-
trolled substance offense[s].”); Nasir, 17 F.4th at 471 (“The Guideline does
not even mention inchoate offenses.”); Havis, 927 F.3d at 386 (“[T]he plain
language of § 4B1.2(b) says nothing about attempt crimes.”); Winstead, 890
F.3d at 1089 (“As is apparent, neither the crime of attempting to distribute
drugs nor attempted possession with intent to distribute drugs is included in
the guideline list.”). Under Kisor as well as Stinson, courts are not at liberty
to rely on Guidelines commentary that adds to the plain text of the Guide-
lines.
IV
The plurality opinion misapprehends the rule of lenity by unneces-
sarily disclaiming any role for lenity in interpreting the Sentencing Guide-
lines. Assuming the Kisor framework, and that the career-offender enhance-
ment were somehow ambiguous, I would apply the rule of lenity to resolve
that ambiguity in Vargas’s favor.
A
Kisor requires courts to “exhaust all the ‘traditional tools’ of con-
struction” before concluding that a legal text is ambiguous. Id. No tool of
construction is more “time-honored” than the rule of lenity. Cargill v. Gar-
land, 57 F.4th 447, 471 (5th Cir. 2023) (en banc) (quoting Liparota v. United
interpretation entitles it to controlling weight.” Id. That is, the “regulatory interpretation
must be one actually made by the agency;” “must in some way implicate its substantive
expertise;” and “must reflect ‘fair and considered judgment.’” Id. at 2416, 2417.
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States, 471 U.S. 419 (1985)). Indeed, the rule is “not much less old than con-
struction itself.” United States v. Wiltberger, 18 U.S. 76, 95 (1820).
In its most basic formulation, the rule of lenity resolves uncertainty in
favor of the criminal defendant. See, e.g., Liparota, 471 U.S. at 427; see also
Reading Law at 296. That typically means declining to defer to the executive-
branch’s interpretation of criminal prohibitions and penalties. See generally
United States v. Hamilton, 46 F.4th 389, 398 n.2 (5th Cir. 2022); Thomas Z.
Horton, Lenity Before Kisor: Due Process, Agency Deference, and the Interpreta-
tion of Ambiguous Penal Regulations, 54 Colum. J.L. & Soc. Probs. 629, 632–
33, 640–44, 664–66 (2021) (discussing lenity’s historical provenance and ex-
plaining the canon’s applicability).
I do not see any reason to exempt the Sentencing Guidelines from the
longstanding rule of lenity. Nor does Kisor require that result. The applica-
tion of the rule of lenity to Kisor is consistent with the theoretical underpin-
nings of both doctrines. See Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722,
731 (6th Cir. 2013) (Sutton, J., concurring) (making a similar point about the
relationship between Chevron and the rule of lenity).
As indicated by the plurality opinion, the rule of lenity is commonly
understood to be grounded in principles of fair notice and the constitutional
separation of powers. Ante at 37. The rule reflects the judgment that “fair
warning should be given to the world in language that the common world will
understand, of what the law intends to do if a certain line is passed.” McBoyle
v. United States, 283 U.S. 25, 27 (1931). And it respects the constitutional
ballast that “the power of punishment is vested in the legislative, not in the
judicial department. It is the legislature, not the Court, which is to define a
crime, and ordain its punishment.” Wiltberger, 18 U.S. at 95.
The constitutional separation of powers is clearly implicated when the
Sentencing Commission is permitted to resolve ambiguity in its own
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Guidelines. The Guidelines themselves are subject to Congressional over-
sight and the strictures of the Administrative Procedure Act. Mistretta, 488
U.S at 393–94. Not so the commentary. See Castillo, 69 F.4th at 663. The
Commission may unilaterally increase the Guidelines range for disfavored
criminal conduct by issuing vague Guidelines and then adopting expansive
readings of those Guidelines in its commentary, or by doing the same to open-
ended Guidelines already in place. See Havis, 907 F.3d at 450 (6th Cir. 2018)
(Thapar, J., concurring) (noting that deference “incentivizes agencies to reg-
ulate ‘broadly and vaguely’ and later interpret those regulations self-serv-
ingly, all at the expense of the regulated”) (quoting Perez v. Mortg. Bankers
Ass’n, 575 U.S. 92, 111 (2015) (Scalia, J., concurring in the judgment)). Def-
erence without the rule of lenity thus permits “the same agency to make the
rules and interpret the rules.” Id. at 452. 6
The plurality opinion is unimpressed by this concern because the
Guidelines are now advisory. Ante at 37. That is cold comfort to the criminal
defendant. As a descriptive matter, “the now-advisory nature of the Guide-
lines does not render the limits on the Commission’s rulemaking power any
less important.” Havis, 907 F.3d at 443. Last year, 67.8 percent of all of-
fenders received sentences that were within the Guidelines range or justified
by a reason for departure provided by the Guidelines Manual. U.S. Sentenc-
ing Comm’n, 2022 Annual Report 9.
Even when a district court chooses to deviate from the Guidelines, the
Guidelines exert a significant anchoring effect on its sentencing decision. See
6
Chief Judge William Pryor, a former commissioner on the United States
Sentencing Commission, has suggested that “the Commission could shore up the authority
of its commentary without substantially modifying its practice by moving what normally
goes in the commentary to the main text of the Guidelines in future revisions.” Dupree, 57
F.4th at 1281 (Pryor, C.J., concurring).
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Molina-Martinez v. United States, 578 U.S. 189, 198–199 (2016) (“The Guide-
lines are the framework for sentencing and anchor the district court’s discre-
tion.” (internal quotation marks and alterations omitted)). In formulating a
sentence, a district court must always begin by correctly calculating the
Guidelines range. And the court must consider that range in making its final
determination—justifying any deviation from the Guidelines with “suffi-
ciently compelling” reasons. Gall v. United States, 552 U.S. 38, 50 (2007).
“So just as a runner’s starting position influences the time in which he fin-
ishes the race, a defendant’s sentence depends in part on what the Guidelines
range is, even if that range is nonbinding.” Havis, 907 F.3d at 444.
Turning to the purposes behind Kisor deference, the Supreme Court’s
holding in Kisor rests chiefly on its belief that Congress wishes for agencies
to have interpretive authority over laws in their particular sphere of opera-
tion. Kisor, 139 S. Ct. at 2413 (reasoning that Congress is “attuned to the
comparative advantages of agencies over courts in making” policy choices in
specialized areas). That is because “[a]gencies (unlike courts) have ‘unique
expertise,’ often of a scientific or technical nature, relevant to applying a reg-
ulation ‘to complex or changing circumstances.’” Id. But this comparative
expertise is not implicated in the project of interpreting the Sentencing
Guidelines. Interpretation of criminal laws is one of the quintessential func-
tions of a judge. “It is emphatically the province and duty of the judicial de-
partment to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803).
Kisor offers two additional justifications for deference: that agencies
are best positioned to understand their own regulations, Kisor, 139 S. Ct. at
2412, and “the well-known benefits of uniformity in interpreting genuinely
ambiguous rules,” id. at 2413. These interests apply when a sentencing court
undertakes to interpret the Guidelines. But to my mind they cannot over-
come the interests on the other side of the ledger. The rule of lenity impli-
cates structural concerns lying at the very foundation of our criminal justice
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system, while Kisor is designed to answer pragmatic problems in administer-
ing the humdrum rules and regulations of daily life. It would be folly on the
order of Esau’s to exchange constitutional structural safeguards and our rich
tradition of lenity simply to optimize the modern administrative state.
I agree with my judicial colleagues in other circuits who have
concluded that the rule of lenity has force in interpreting the Sentencing
Guidelines. See Winstead, 890 F.3d at 1092 n.14 (“We are inclined to believe
that the rule of lenity . . . has some force” in interpreting the Sentencing
Guidelines.); Campbell, 22 F.4th at 446 (agreeing); Nasir, 17 F.4th at 472–74
(Bibas, J., concurring); Havis, 907 F.3d at 451 (Thapar, J., concurring). 7
B
One final note. We have previously recognized the existence of two
competing “standards for whether a statute is sufficiently ambiguous to trig-
ger the rule of lenity.” Cargill, 57 F.4th at 469. On one view, “the rule of
lenity does not apply when a law merely contains some ambiguity or is diffi-
cult to decipher,” but instead applies only in the face of “grievous ambigu-
ity.” Wooden v. United States, 142 S. Ct. 1063, 1075 (Kavanaugh, J., concur-
ring). That is, when ambiguity persists after every other tool of construction
has been tried. Id. On the second view, by contrast, lenity comes into play
from the start to resolve all reasonable doubts in favor of the criminal defend-
ant. Id. at 1084 (Gorsuch, J., concurring in the judgment). See also Nebraska,
7
The case for lenity’s application here is only buttressed by the fact that many
states apply the rule in connection with their state sentencing guidelines. See
Commonwealth v. Rossetti, 186 N.E.3d 729, 742 (Mass. 2022); State v. Weatherwax, 392 P.3d
1054, 1060 (Wash. 2017); State v. Spencer, 248 P.3d 256, 276 (Kan. 2011); State v. Maurstad,
733 N.W.2d 141, 148 (Minn. 2007); Commonwealth v. Shiffler, 879 A.2d 185, 195 (Pa. 2005);
State v. Rife, 789 So.2d 288, 294 (Fla. 2001); Scott v. State, 720 A.2d 291, 295 (Md. 1998);
State v. Anaya, 933 P.2d 223, 233 (N.M. 1996); People v. District Court, Second Judicial Dist.,
713 P.2d 918, 922 (Colo. 1986).
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143 S. Ct. at 2376 (Barrett, J., concurring) (describing lenity’s role as “break-
ing a tie between equally plausible interpretations of a statute”).
We have also recognized that “the Supreme Court does not appear to
have decided which of these standards governs.” Cargill, 57 F.4th at 469.
Yet in Part III(D) a plurality of judges on this court take a side, stating that
lenity only comes into play in the face of grievous ambiguity—the proverbial
Gordian knot of interpretive problems. As with the Stinson vs. Kisor ques-
tion, I would not resolve this issue at this time. In this case “it does not mat-
ter which standard applies because the rule of lenity applies even under the
more stringent ‘grievously ambiguous’ condition.” Cargill, 57 F.4th at 469.
* * *
To be designated a career offender is of no small moment for the
criminal defendant. The Guidelines assign all career offenders to the highest
possible Criminal History Category and drastically augment their offense
level. Once the sentencing table operates its multiplying effect, many career
offenders find themselves with a Guidelines sentence at or near the maximum
penalty permitted by statute. Case in point, Vargas’s career offender
designation increased his Guidelines sentence from a likely range of 100–125
months to a range of 188–235 months.
Yet Vargas would not be considered a career offender in the Third,
Fourth, Sixth, Ninth, Eleventh, and D.C. Circuits—meaning that his
sentence would likely be at least five years shorter had he been convicted in
one of those jurisdictions. We should not countenance that kind of disparity
in the federal system. Such disparities will continue for many criminal
defendants until the Supreme Court provides us with much needed guidance.
I respectfully dissent.
64