United States v. Sanders ( 2023 )

Case: 22-50096 Document: 00516945390 Page: 1 Date Filed: 10/26/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50096
Summary Calendar FILED
____________ October 26, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Raymond Glynn Sanders, Jr.,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CR-257-1
______________________________
Before Wiener, Stewart, and Douglas, Circuit Judges.
Per Curiam: *
Raymond Glynn Sanders, Jr., pleaded guilty to conspiracy to possess
with intent to distribute, and conspiracy to distribute, a quantity of a mixture
or substance containing a detectable amount of cocaine base. The district
court determined that Sanders qualified as a career offender pursuant to
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50096 Document: 00516945390 Page: 2 Date Filed: 10/26/2023
No. 22-50096
U.S.S.G. § 4B1.1 and sentenced him within the advisory guidelines range to
188 months in prison. Sanders appeals his sentence.
Sanders asserts that the district court erred in classifying him as a
career offender under § 4B1.1. He contends that the district court improperly
found that his offense of conviction and his prior conviction for aiding and
abetting the possession with intent to distribute cocaine base qualified as
controlled substance offenses within the definition set forth in U.S.S.G.
§ 4B1.2, which does not specifically include inchoate crimes. See § 4B1.2(b).
Sanders argues that the guidelines commentary, which provides that
inchoate crimes are controlled substance offenses, should not be afforded
deference in light of the Supreme Court’s decision in Kisor v. Wilkie, 139 S.
Ct. 2400 (2019). See § 4B1.2 cmt. n.1. The district court’s construction and
application of the Sentencing Guidelines are reviewed de novo. United States
v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005).
In Stinson v. United States, the Supreme Court held that the guidelines
commentary is authoritative and entitled to deference unless it is inconsistent
with, or a plainly erroneous reading of, the guidelines definition. 508 U.S. 36,
38 (1993). We recently rejected the contention that Kisor overruled or
modified Stinson. See United States v. Vargas, 74 F.4th 673, 677-84 (5th Cir.
2023) (en banc). We held that conspiracies may constitute a controlled
substance offense for the purposes of the career offender guidelines because
the commentary involving inchoate offenses is not inconsistent with the
guidelines definition. Id. at 684. Accordingly, Sanders’s instant conspiracy
conviction qualifies as a controlled substance offense. See § 4B1.2 cmt. n.1.
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Case: 22-50096 Document: 00516945390 Page: 3 Date Filed: 10/26/2023
No. 22-50096
Further, Sanders’s prior conviction for aiding and abetting the possession
with intent to distribute cocaine base is a controlled substance offense under
the guidelines definition itself. See Vargas, 74 F.4th at 678 n.6 (noting that
“aiding and abetting” is not an inchoate crime). Thus, Sanders was correctly
sentenced as a career offender. See § 4B1.1(a).
The judgment of the district court is AFFIRMED.
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