United States v. Roberto Castillo

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50054
Plaintiff-Appellee,
D.C. Nos.
v. 2:19-cr-00764-
DSF-1
ROBERTO CASTILLO, AKA 2:19-cr-00764-
Roberto Enrique Castillo, AKA Ito, DSF
AKA Shadow,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted November 17, 2022
Pasadena, California
Filed May 31, 2023
Before: Kim McLane Wardlaw and William A. Fletcher,
Circuit Judges, and Matthew F. Kennelly,* District Judge.
Opinion by Judge Wardlaw
*
The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
2 UNITED STATES V. CASTILLO
SUMMARY**
Criminal Law
The panel vacated Roberto Castillo’s sentence for
conspiracy to distribute at least 50 grams of
methamphetamine in violation of 21 U.S.C. §§ 846 and 841,
and remanded for resentencing, in a case in which the district
court concluded that this offense of conviction qualified
Castillo as a career offender under United States Sentencing
Guidelines Manual (U.S.S.G.) § 4B1.1, as it was a
“controlled substance offense” as defined by U.S.S.G. §
4B1.2.
The text of U.S.S.G. § 4B1.2(b) does not include
“conspiracy to distribute” in its list of controlled substance
offenses. Rather, Application Note 1 states that “controlled
substance offenses” include “offenses of aiding and abetting,
conspiring, and attempting to commit such offenses.” This
court has previously held that Application Note 1
permissibly expands on, and is consistent with, the text of
§ 4B1.2(b). See United States v. Vea-Gonzales, 999 F.2d
1326 (9th Cir. 1993), overruled on other grounds by Custis
v. United States, 511 U.S. 485 (1994); United States v. Crum,
934 F.3d 963 (9th Cir. 2019), cert. denied, 140 S. Ct. 2629
(2020).
Under Stinson v. United States, 508 U.S. 36 (1993), the
Guidelines’ commentary must be given controlling weight
unless it is plainly erroneous or inconsistent with the
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. CASTILLO 3
regulation. Stinson’s broad deference to the commentary—
as well as the broad deference afforded to agencies’
interpretations of their own rules—has narrowed over
time. In Kisor v. Wilkie, 139 S. Ct. 2400 (2019), the
Supreme Court cabined the scope of this deference,
clarifying that the possibility of deference to an agency’s
interpretation of its own rules can arise only if a regulation
is genuinely ambiguous. Under Kisor, not all reasonable
agency constructions of those truly ambiguous rules are
entitled to deference, and before concluding that a rule is
genuinely ambiguous, a court must exhaust all the traditional
tools of construction. If uncertainty does not exist after
exhausting these tools, there is no plausible reason for
deference.
Explaining that the more demanding standard articulated
in Kisor applies to the Guidelines’ commentary, the panel
held that Kisor is an intervening decision and is clearly
irreconcilable with the holdings in Vea-Gonzales and
Crum. Applying the traditional tools of statutory
construction to the text of the guideline, as Kisor instructs,
the panel concluded that § 4B1.2(b) unambiguously
identifies a list of crimes that does not include inchoate
offenses. Because § 4B1.2(b)’s definition of “controlled
substance offense” is unambiguous, the Supreme Court’s
decision in Kisor now makes it impermissible to defer to
Application Note 1 to determine whether conspiracy fits into
this definition. Accordingly, the panel held that Crum and
Vea-Gonzales applied an inappropriate level of deference to
§ 4B1.2(b)’s commentary, and consequently, these cases are
irreconcilable with Kisor’s instructions regarding review of
agency regulations and deference to an agency’s, including
the Sentencing Commission’s, interpretive commentary. To
the extent that Crum and Vea-Gonzales hold that an inchoate
4 UNITED STATES V. CASTILLO
offense is a “controlled substance offense” for career
enhancement purposes under the Sentencing Guidelines, the
panel overruled them.
Further, deference to Application Note 1 raises grave
constitutional concerns. The panel wrote that the Sentencing
Commission’s lack of accountability in its creation and
amendment of the commentary raises constitutional
concerns when a court defers to commentary that expands
unambiguous Guidelines, particularly because of the
extraordinary power the Commission has over individuals’
liberty interests. Here, Castillo’s career offender
enhancement increased his advisory sentence range from
151–188 months to 262–327 months under the Sentencing
Guidelines. And his nearly 22-year sentence—imposed by
the district court based on the Sentencing Guidelines—was
approximately 7 to 10 years greater than it would have been
without the enhancement, assuming the district court would
have sentenced Castillo within the advisory sentence
range. The panel wrote that surely neither Kisor nor Stinson
permitted the Sentencing Commission to invoke its general
interpretative authority via commentary to impose such a
massive impact on a defendant with no grounding in the
Guidelines themselves.
Because the text of § 4B1.2(b) unambiguously does not
include inchoate offenses, and because the court is no longer
permitted to rely on the commentary of an unambiguous
guideline after Kisor, the panel held that Castillo’s
conspiracy conviction is not a “controlled substance
offense” under § 4B1.1.
UNITED STATES V. CASTILLO 5
COUNSEL
James H. Locklin (argued), Deputy Federal Public Defender;
Cuauhtemoc Ortega, Federal Public Defender; Federal
Public Defender’s Office; Los Angeles, California; for
Defendant-Appellant.
David R. Friedman (argued) and Lynda Lao, Assistant
United States Attorneys; Bram M. Alden, Assistant United
States Attorney, Criminal Appeals Section Chief; Tracy L.
Wilkison, United States Attorney; Office of the United
States Attorney; Los Angeles, California; for Plaintiff-
Appellee.
OPINION
WARDLAW, Circuit Judge:
Roberto Castillo pleaded guilty to the crime of
conspiracy to distribute at least 50 grams of
methamphetamine in violation of 21 U.S.C. §§ 846 and 841.
The district court concluded that this offense of conviction
qualified Castillo as a career offender under United States
Sentencing Guidelines Manual (U.S.S.G.) § 4B1.1, as it was
a “controlled substance offense,” as defined by U.S.S.G.
§ 4B1.2(b). However, the text of U.S.S.G. § 4B1.2(b) does
not actually include “conspiracy to distribute” in its list of
controlled substance offenses. Rather, Application Note 1
states that “controlled substance offenses” include “offenses
of aiding and abetting, conspiring, and attempting to commit
such offenses.” We have previously held that Application
Note 1 permissibly expands on, and is consistent with, the
text of U.S.S.G. § 4B1.2(b). See United States v. Vea-
6 UNITED STATES V. CASTILLO
Gonzales, 999 F.2d 1326 (9th Cir. 1993), overruled on other
grounds by Custis v. United States, 511 U.S. 485 (1994);
United States v. Crum, 934 F.3d 963 (9th Cir. 2019), cert.
denied, 140 S. Ct. 2629 (2020). We must decide whether
Kisor v. Wilkie, 139 S. Ct. 2400 (2019), is intervening
“clearly irreconcilable” authority that requires us to examine
the plain text of the guideline, determine whether there is any
ambiguity, and if there is not, to disregard the interpretive
gloss set forth in the guideline’s commentary. Miller v.
Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003). In short, we
must decide which side of a growing intercircuit split is
correct on the question whether Application Note 1
improperly expands the definition of “controlled substance
offense” in § 4B1.2(b).
Because we conclude that we must apply the Supreme
Court’s decision in Kisor, and that Application Note 1
improperly expands the definition of “controlled substance
offense” in U.S.S.G. § 4B1.2(b), we vacate Castillo’s
sentence and remand for resentencing consistent with this
opinion.
I.
In May 2019, Roberto Castillo sold approximately 14
grams of methamphetamine to a government informant for
$100. In June 2019, he sold the same informant 53 grams of
methamphetamine for $400. In July 2019, Castillo and
Casandra Cachu, Castillo’s codefendant, arranged to sell the
informant about 111.1 grams of methamphetamine for $440.
Castillo and the informant made arrangements by phone, and
Cachu delivered the drugs to the informant. In the course of
these events, Castillo allegedly distributed or “conspired to
distribute” a total of approximately 178.1 grams of
methamphetamine.
UNITED STATES V. CASTILLO 7
Castillo was arrested in January 2020. A grand jury
indicted Castillo on four counts, including one count of
conspiracy to distribute methamphetamine, 21 U.S.C. §§
846, 841. On September 21, 2020, Castillo pleaded guilty to
the conspiracy count.
At sentencing, the district court found the Presentence
Report (PSR) prepared by the Probation Officer accurate and
correct, and so adopted it. For the offense of conviction, the
PSR calculated the base offense level at 32 based on the
Drug Quantity Table set forth in U.S.S.G. § 2D1.1(c). The
PSR then found that Castillo had two prior convictions under
Cal. Health & Safety Code § 11378 that qualified as
controlled substances offenses under U.S.S.G. §§ 4B1.1;
4B1.2(b).1 The PSR then determined that Castillo’s instant
conspiracy to distribute offense also was a controlled
substance offense under the career offender guideline, and
accordingly, increased the offense level by 5 to 37. It then
recommended a 3-point reduction for acceptance of
responsibility, to reach a total offense level of 34. The
Probation Officer calculated a criminal history category of
VI, for an advisory sentence range of 262 to 327 months.
The Probation Officer recommended a sentence at the low
end of the Guidelines, and the Government agreed. Absent
the career offender enhancement, the applicable advisory
range for Castillo would have been significantly lower—151
to 188 months.
1
Castillo’s prior offenses include two convictions for possession of
methamphetamine for sale, Los Angeles County Superior Court, Dkt.
Nos. PA049723 and PA081690, in violation of California Health &
Safety Code § 11378. Castillo was first convicted of this offense in
December 2004, and sentenced to 28 months in state prison. He was
again convicted of the same offense in November 2014, and sentenced
to another two years in state prison.
8 UNITED STATES V. CASTILLO
The district court sentenced Castillo to 262 months’
custody and ten years of supervised release. The court relied
on the Probation Officer’s determination that Castillo’s
conspiracy conviction is a “controlled substance offense” for
purposes of the career offender adjustment. Castillo appeals
his sentence.
II.
Under the Guidelines, a defendant is a “career offender”
if: (1) the defendant was at least 18 years old at the time of
the instant offense of conviction; (2) the instant offense is a
felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two
prior felony convictions of either a crime of violence or a
controlled substance offense. U.S.S.G. § 4B1.1(a).
Sentencing Guideline § 4B1.2 provides the definitions
for the terms used in U.S.S.G. § 4B1.1. Subsection 4B1.2(b)
defines the term “controlled substance offense” as:
[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
substance) with intent to manufacture,
import, export, distribute, or dispense.
Id. § 4B1.2(b).
The text of § 4B1.2(b) does not identify conspiracy to
commit any of the offenses as such an offense, but the
guideline’s commentary expands the definition to include
UNITED STATES V. CASTILLO 9
conspiracy, as well as aiding and abetting or attempting the
identified crimes. Application Note 1 to U.S.S.G.
§ 4B1.2(b) provides that “controlled substance offenses”
“include the offenses of aiding and abetting, conspiring, and
attempting to commit such offenses.” Id. § 4B1.2,
application note 1.
Conspiracy is an inchoate offense that is separate and
independent from the crime that is the subject of the
conspiracy. See United States v. Iribe, 564 F.3d 1155, 1160
(9th Cir. 2009) (“Conspiracy to commit a crime is not
equivalent to the completion of that crime.”). Black’s Law
Dictionary defines “inchoate offense” as 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).
Black’s lists the three inchoate offenses as “attempt,
conspiracy, and solicitation.” Id. Because “[b]y definition”
inchoate crimes “do not require completion of the criminal
objective,” United States v. Macias-Valencia, 510 F.3d
1012, 1014 (9th Cir. 2007), the Guidelines distinguish
between inchoate offenses and underlying substantive
offenses. For instance, the Guidelines note that if the offense
is a conspiracy to commit a substantive offense and is not
covered by a specific offense guideline, the base level must
be decreased by 3 levels unless certain narrow circumstances
apply. U.S.S.G. § 2X1.1(b)(2), (c). And for career offender
purposes, the guideline’s text includes an inchoate offense—
“attempted use”—in the definition of a “crime of violence,”
id. § 4B1.2(a), whereas it does not include any inchoate
offenses in the definition of a “controlled substance
offense,” id. § 4B1.2(b).
10 UNITED STATES V. CASTILLO
III.
As a general matter, “[w]e review the district court’s
interpretation of the Sentencing Guidelines de novo.” United
States v. Rivera-Constantino, 798 F.3d 900, 902 (9th Cir.
2015) (citing United States v. Grajeda, 581 F.3d 1186, 1188
(9th Cir. 2009)). But here, the parties dispute the proper
standard to apply to our review of the district court’s
interpretation of the Sentencing Guidelines because Castillo
did not challenge the career offender adjustment in district
court. If an appellant fails to raise an issue in the district
court proceedings, Federal Rule of Criminal Procedure 52(b)
affords appellate courts discretion “to correct a forfeited
error” if the appellant shows (1) an error, (2) that is plain, (3)
that affects substantial rights, and (4) that seriously affects
the fairness, integrity, or public reputation of judicial
proceedings. Henderson v. United States, 568 U.S. 266, 272
(2013).
The Government argues that we should apply plain error
review under Federal Rule of Criminal Procedure 52(b).
Castillo responds that we may apply the de novo standard,
even though the issue was not raised in the district court,
because the issue before us is a purely legal question and the
Government will suffer no prejudice as a result.
In United States v. McAdory, 935 F.3d 838 (9th Cir.
2019), we held that “we are not limited to [plain error]
review when we are presented with [1] a question that is
purely one of law and [2] where the opposing party will
suffer no prejudice as a result of the failure to raise the issue
in the trial court.” Id. at 841–42 (second and third alterations
in original). Therefore, because the question in McAdory—
whether an offense qualifies as a predicate felony—was a
purely legal question, we applied the de novo standard of
UNITED STATES V. CASTILLO 11
review. Id.; see also United States v. Saavedra-Velazquez,
578 F.3d 1103, 1106 (9th Cir. 2009) (holding that “we are
not limited to [the plain error] standard of review when we
are presented with a question that ‘is purely one of law’ and
where ‘the opposing party will suffer no prejudice as a result
of the failure to raise the issue in the trial court . . .’” (citation
omitted)). Similarly, here, neither party disputes that the
applicability of the career offender requirements is a purely
legal question, and the Government has not argued that it
will suffer prejudice because Castillo failed to raise the issue
in district court.
But the assumption that de novo review applies to purely
legal questions that have not been argued below has been
called into question both by our court and by the Supreme
Court. See United States v. Zhou, 838 F.3d 1007, 1015–16
(9th Cir. 2016) (Graber, J., concurring) (“Our ‘pure question
of law’ exception contradicts Rule 52(b) and the Supreme
Court’s case law.”); Henderson, 568 U.S. at 269–70
(applying the plain error standard to a “[d]istrict [c]ourt’s
decision on a substantive legal question that was unsettled at
the time the trial court acted”).
Because McAdory controls in our circuit but it remains
an open question “whether [our] precedent can be reconciled
with the Supreme Court’s cases interpreting Federal Rule of
Criminal Procedure 52(b),” we assume without deciding that
de novo review applies here. United States v. Begay, 33
F.4th 1081, 1090 n.3 (9th Cir. 2022) (en banc). It is
unnecessary for us to decide the appropriate standard of
review to apply because “the outcome of our analysis would
be the same whether we apply plain error or de novo
review.” Id. at 1089.
12 UNITED STATES V. CASTILLO
IV.
Castillo argues that the district court erred by concluding
that his offense of conviction—conspiracy to distribute—is
a “controlled substance offense” that qualifies him as a
career offender under U.S.S.G. § 4B1.1.
We agree. Castillo’s sentence was for a drug conspiracy.
The Sentencing Guidelines’ definition of “controlled
substance offense” for career offender enhancements
currently does not include inchoate crimes like conspiracies,
although the commentary extends the definition to such
crimes. U.S.S.G. § 4B1.2(b), application note 1. Because
only the commentary includes inchoate crimes, and the text
of the guideline unambiguously does not, applying the
Supreme Court’s Kisor analysis, we must conclude that
Castillo’s conspiracy conviction does not qualify as a
“controlled substance offense” under U.S.S.G. § 4B1.2(b).
A.
The Government argues that our precedent in Vea-
Gonzales and Crum foreclose Castillo’s argument that his
conspiracy to distribute conviction is not a “controlled
substance offense.”2
2
The Government also argues that we have already held that 21 U.S.C.
§ 846 qualifies as a controlled substance offense in United States v.
O’Brien, 52 F.3d 277, 279 (9th Cir. 1995). But O’Brien did not address
the question before us. In O’Brien, a defendant charged with conspiracy
to distribute cocaine and marijuana under § 846 argued that he did not
qualify for the same statutory life-term enhancement as mandated for the
substantive underlying conviction under § 841(b)(1)(A)(ii)(II), because
he did not plead guilty to the underlying drug offense described in
§ 841(a)(1). Id. at 278. The O’Brien court noted that an individual
convicted of attempt or conspiracy is subject to the same penalties as
those prescribed for the underlying offense (the standard articulated in
UNITED STATES V. CASTILLO 13
In Vea-Gonzales, the defendant made the same argument
that Castillo makes here: that Application Note 1 to U.S.S.G.
§ 4B1.2(b), “which states that the predicate offenses include
aiding and abetting, impermissibly exceeds the scope of
[§] 4B1.2(b) itself.” 999 F.2d at 1330. We applied a
standard of interpretation nearly unrecognizable today. We
wrote that “[i]n interpreting the Guidelines and their
accompanying commentaries, courts are required to consider
them together, and, if possible, as consistent with each
other.” Id. We held that only if the guideline is
irreconcilable with the commentary “is the court to consider
the guideline alone.” Id. We found the guideline and
commentary were “perfectly consistent” because “[t]he
guideline refers to violations of laws prohibiting the
manufacture, import, export, distribution, or dispensing of
drugs,” and “[a]iding and abetting, conspiracy, and attempt
are all violations of those laws.” Id.Twenty-six years later, in Crum, we again addressed the
question whether “Application Note 1 of § 4B1.2 lacks legal
force because it is inconsistent with the text of the
guideline.” 934 F.3d at 966. We explained that if it were
inconsistent, courts would be prohibited “from relying on the
commentary to expand the definition of ‘controlled
substance offense’ to include solicitation”—the predicate
crime at issue in Crum. Id. We further noted the developing
the statutory language of § 846), and therefore the defendant was subject
to the life-term enhancement. Id. But O’Brien did not consider whether
§ 4B1.2(b)’s commentary is authoritative. In O’Brien, we considered
only whether the Sentencing Commission had the statutory authority
under 28 U.S.C. § 994(h) to include “conspiracy” within the definition
of “controlled substance offense” in the career offender provision of the
Guidelines—an authority neither party disputes here. Id. at 279.
Therefore, O’Brien is not controlling.
14 UNITED STATES V. CASTILLO
intercircuit split on the inconsistency vel non between the
Guidelines and the commentary. We said “[i]f we were free
to do so,” we would follow the circuits that had held that the
two were inconsistent and hold that “the commentary
improperly expands the definition of ‘controlled substance
offense’ to include other offenses not listed in the text of the
guideline.” Id. at 966. We found it troubling that “the
Sentencing Commission ha[d] exercised its interpretive
authority to expand the definition of ‘controlled substance
offense’ in this way, without any grounding in the text of
§ 4B1.2(b) and without affording any opportunity for
congressional review.” Id. However, we were “compelled”
to follow Vea-Gonzales’s holding that the two were
consistent because “[n]o intervening higher authority [was]
‘clearly irreconcilable’ with the reasoning of Vea-
Gonzales.” Id. at 966–67.
Kisor was decided half a year after oral argument in
Crum, and was not cited to the Crum panel before it issued
its decision. The decision does not indicate that the Crum
panel considered in any way the effect of Kisor’s new rules
of guideline interpretation on the reasoning of Vea-
Gonzales. We do so now.
B.
In Stinson v. United States, 508 U.S. 36, 38–41 (1993)—
decided 30 years ago as of this month—the Supreme Court
clarified the legal force of the Guidelines’ commentary. It
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.” Id. at 39.
UNITED STATES V. CASTILLO 15
The Stinson Court explained that the Sentencing
Commission, created by the Sentencing Reform Act of 1984,
18 U.S.C. § 3551 et seq., “promulgate[d] the guidelines by
virtue of an express congressional delegation of authority for
rulemaking”—the “equivalent of legislative rules adopted
by federal agencies.” Stinson, 508 U.S. at 44–45. And any
amendment to the Guidelines must be submitted to Congress
for a six-month period of review, during which time
Congress can “modify or disapprove them.” Id. at 41.
However, unlike the Guidelines themselves (but like an
agency’s interpretation of its own regulations), the
Guidelines’ commentary is not subject to mandatory
congressional review. Id. at 45. Under the administrative
agency analogy then, “commentary [should] be treated,” and
receive the same level of deference as, “an agency’s
interpretation of its own legislative rule.” Id. at 44.
Therefore, under Stinson, commentary “must be given
‘controlling weight unless it is plainly erroneous or
inconsistent with the regulation.’” Id. at 45 (quoting Bowles
v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)).
Notably, under Stinson deference, commentary “provides
concrete guidance as to how even unambiguous guidelines
are to be applied in practice.” Id. at 44. As a result, even
when commentary may expand the meaning of the
Guidelines, if it is not plainly inconsistent with the
Guidelines, it is binding on the federal courts. Id. at 44–45;
see also Auer v. Robbins, 519 U.S. 452, 461 (1997) (holding
that a federal agency’s interpretation of a regulation is
controlling where it is not “plainly erroneous or inconsistent
with the regulation” (internal quotation marks and citation
omitted)).
Stinson’s broad deference to the Guidelines’
commentary—as well as the broad deference afforded to
16 UNITED STATES V. CASTILLO
agencies’ interpretations of their own rules described in
Seminole Rock and Auer—has narrowed over time.
Recently, in Kisor, the Supreme Court “cabined [the] scope”
of this deference, clarifying that “the possibility of
deference” to an agency’s interpretation of its own rules “can
arise only if a regulation is genuinely ambiguous.” 139 S.
Ct. at 2414, 2418 (emphasis added). Still more, the Court
reasoned, “not all reasonable agency constructions of those
truly ambiguous rules are entitled to deference.” Id. at 2414.
And, “before concluding that a rule is genuinely ambiguous,
a court must exhaust all the ‘traditional tools’ of
construction.” Id. at 2415 (quoting Chevron U.S.A. Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984)).
“If uncertainty does not exist” after exhausting these tools,
“there is no plausible reason for deference.” Id.The more demanding deference standard articulated in
Kisor applies to the Guidelines’ commentary. Kisor directly
examined and narrowed Seminole Rock and Auer deference
in the context of an administrative agency’s interpretation of
its own regulation, noting that such deference is not
permitted without first finding the regulation ambiguous.
Stinson deference is directly grounded in Seminole Rock and
Auer deference. Indeed, the deference standard articulated
by the Court in Stinson—that commentary “must be given
‘controlling weight unless it is plainly erroneous or
inconsistent’” with the guideline’s text—is a direct quotation
from Seminole Rock. Stinson, 508 U.S. at 45 (quoting
Seminole Rock, 325 U.S. at 414). And although Kisor did
not distinguish between an agency’s interpretation of its own
regulations and the commentary’s interpretation of the
Guidelines, “the only way to harmonize [Kisor and Stinson]
is to conclude that Kisor’s gloss on Auer and Seminole Rock
applies to Stinson.” United States v. Dupree, 57 F.4th 1269,
UNITED STATES V. CASTILLO 17
1275 (11th Cir. 2023) (en banc) (“Stinson adopted word for
word the test the Kisor majority regarded as a ‘caricature,’
so the continued mechanical application of that test would
conflict directly with Kisor.”). Therefore, to “follow
Stinson’s instruction to treat the commentary like an
agency’s interpretation of its own rule, we must apply
Kisor’s clarification of Auer deference to Stinson.” Id. at
1276.
C.
Castillo argues that after Kisor, Vea-Gonzales and Crum
are no longer binding on us on the question whether
Application Note 1 is a permissible interpretation of
U.S.S.G. § 4B1.2(b). We are generally bound by our own
precedent. However, “a three-judge panel may reexamine
normally controlling circuit precedent in the face of an
intervening United States Supreme Court decision” in
certain narrow circumstances such as “where the reasoning
or theory of our prior circuit authority is clearly
irreconcilable with the reasoning or theory of intervening
higher authority.” See Miller, 335 F.3d at 892–93.
Castillo’s argument tees up two questions: (1) is Kisor
an intervening decision, and (2) is Kisor clearly
irreconcilable with our prior decisions, such that we may
reexamine our precedent as a three-judge panel? We answer
both questions in the affirmative. Kisor is an intervening
decision of a higher authority that is clearly irreconcilable
with our holdings in Vea-Gonzales and Crum.
1.
Kisor serves as an intervening decision. The Crum panel
did not address the effect of Kisor on our deference to
Application Note 1. The Government argues that because
18 UNITED STATES V. CASTILLO
the Supreme Court issued its opinion in Kisor two months
before we issued our decision in Crum, Kisor is not an
intervening decision.
We disagree. The Supreme Court issued the Kisor
decision after we heard oral argument in Crum, and less than
two months before the Crum panel rendered its opinion. The
litigants did not raise Kisor to the panel before it issued its
decision. The Crum panel applied Stinson’s deference
standard to reach its holding, and expressly held it was not
aware of intervening higher authority.3 Crum, 934 F.3d at
967.
Contrary to the Government’s suggestion, no panel in
our circuit has considered Kisor’s effect on our interpretation
of Application Note 1 since Crum. In United States v.
House, 31 F.4th 745 (9th Cir. 2022) (per curiam), we stated
that we were “bound by Crum” to hold that Application Note
1 “expands the prohibited conduct” of § 4B1.2 to inchoate
offenses. Id. at 749, 753. The House decision did not
mention Kisor; nor did the parties raise the potential effect
of Kisor on the legal force accorded to Application Note 1 in
their briefings. See generally Parties’ Briefings, United
3
After the decision was published, Crum filed a petition for rehearing
and rehearing en banc, arguing that the panel should not have relied on
Vea-Gonzales. Appellee’s Petition for Rehearing and Rehearing En
Banc at 2, United States v. Crum, 934 F.3d 963 (9th Cir. 2019) (No. 17-
30261), ECF No. 42. Although the petition mentioned Kisor, it did not
directly address the issue before us now. Rather, it focused on the Crum
panel’s mistaken reliance on the “out-of-date” pre-Stinson deference
standard articulated in Vea-Gonzales. Id. at 2, 12–13 (comparing Stinson
and Vea-Gonzales and noting that Stinson subjects commentary to
Auer/Seminole Rock deference, binding courts only if the commentary
bears on the construction of the guideline it is interpreting). The case
was not reheard by the panel or en banc.
UNITED STATES V. CASTILLO 19
States v. House, 31 F.4th 745 (9th Cir. 2022) (No. 20-
30169), ECF Nos. 4, 18, 23. Because the House court did
not consider the impact of Kisor, it does not bind us. See
United States v. Hogue, No. 20-30043, 2022 WL 4103627,
at *2 (9th Cir. Sept. 8, 2022) (Paez, J., concurring) (“None
of this court’s opinions evaluating Application Note 1 have
considered whether the Supreme Court’s decision in Kisor
clarified the rule laid out in Stinson.” (internal citations
omitted)).
Nor have we decided how Kisor affects the extent of
deference owed to other commentary interpreting the
Guidelines. In United States v. Kirilyuk, 29 F.4th 1128 (9th
Cir. 2022)—decided three years after Kisor—we applied
Stinson deference to conclude that Application Note
3(F)(i)’s interpretation of “loss” for calculating the
applicable offense level for crimes such as credit card fraud
under U.S.S.G. § 2B1.1 is not legally binding on courts. Id.
at 1134. We reasoned that the Application Note, which
defined “loss” accorded to a stolen credit card as an
automatic $500, is inconsistent with the plain meaning of the
word “loss” in the guideline. Id. at 1137. We chose “not
[to] express a view” on whether we are required to “apply[]
the narrower deference set out in [Kisor],” because the
Application Note in that instance was not binding even under
the broader test laid out in Stinson. Id. at 1138–39.
Because neither Vea-Gonzales, Crum, nor any other
Ninth Circuit decision analyzed Application Note 1’s
validity under Kisor, no “case binds us on this question.”
Kirilyuk, 29 F.4th at 1134 (noting that even though “two
published cases” had interpreted and applied the application
note at issue, “no Ninth Circuit case ha[d] considered
whether [the] Application Note . . . conflicts with the
meaning of ‘loss’” in the Guidelines, and therefore the issue
20 UNITED STATES V. CASTILLO
“remain[ed] an open question in our circuit”). Surely, issues
which are “neither brought to the attention of the court nor
ruled upon, are not to be considered as having been so
decided as to constitute precedents.” Id. (citation omitted);
see also Brecht v. Abrahamson, 507 U.S. 619, 631 (1993)
(holding that when a court has “never squarely addressed the
issue, and ha[s] at most assumed” something in a prior
decision, it is “free to address the issue on the merits”);
Medina-Rodriguez v. Barr, 979 F.3d 738, 747 (9th Cir.
2020) (noting that “unstated assumptions on non-litigated
issues are not precedential holdings binding future
decisions” (citation omitted)).
Because no prior Ninth Circuit panel has considered the
effect of Kisor on the Stinson deference we previously
applied to the Guidelines’ commentary, we conclude that
Kisor is an intervening decision of a higher authority.
2.
Kisor’s reasoning is clearly irreconcilable with Vea-
Gonzales and Crum. Applying the traditional tools of
statutory construction to the text of the guideline, as Kisor
instructs, we conclude that § 4B1.2(b) unambiguously
identifies a list of crimes that does not include inchoate
offenses. The Government’s argument that Kisor is not
irreconcilable with Vea-Gonzales and Crum because “either
the career offender guideline applies here unambiguously
[and encompasses conspiracies], or the commentary is
entitled to Kisor deference because the guideline is
ambiguous,” is not supported by the text of § 4B1.2(b).
Section 4B1.2(b) sets forth the specific offenses that
qualify as controlled substance offenses—manufacturing,
importing, exporting, distributing, dispensing, or possessing.
The canon of construction, expressio unius est exclusio
UNITED STATES V. CASTILLO 21
alterius, directs us to infer from Congress’s express
inclusion of enumerated offenses that its exclusion of
inchoate crimes was intentional. See United States v. Nasir,
17 F.4th 459, 471–72 (3d Cir. 2021) (en banc); United States
v. Winstead, 890 F.3d 1082, 1091 (D.C. Cir. 2018). Because
the plain text of § 4B1.2(b) unambiguously excludes
inchoate crimes, we are not permitted under Kisor to defer
to the Commission’s commentary. See Dupree, 57 F.4th at
1277 (“A definition which declares what a term means
excludes any meaning that is not stated.” (internal quotation
marks omitted) (quoting Burgess v. United States, 553 U.S.
124, 130 (2008)).
Further, the exclusion of inchoate offenses in § 4B1.2(b)
stands in sharp contrast to the inclusion of attempt, an
inchoate offense, within a different subsection of the same
provision: Section 4B1.2(b)’s plain language clearly omits
inchoate offenses in the definition of the term “controlled
substance offense,” whereas § 4B1.2(a)’s plain language
includes some inchoate offenses in the definition of the term
“crime of violence.” See U.S.S.G. § 4B1.2(a)(1) (defining
“crime of violence” to include an offense that, among other
things, “has as an element the use, attempted use, or
threatened use of physical force against the person of
another” (emphasis added)). The Supreme Court has
emphasized that “Congress generally acts intentionally
when it uses particular language in one section of a statute
but omits it in another,” and that this canon “applies with
particular force” when the use and omission occur “in close
proximity” to one another. Dep’t of Homeland Sec. v.
MacLean, 574 U.S. 383, 391–92 (2015).
Here, this distinction between definitions in neighboring
subsections within the same provision shows that the drafters
knew how to include inchoate offenses in defining
22 UNITED STATES V. CASTILLO
“controlled substance offense” for sentencing enhancement
purposes, but chose not to do so. See Winstead, 890 F.3d at
1092 (“[W]hen enumerating a list of specific offenses that
qualify to support career offender status, the drafters
declined to include attempt despite its presence elsewhere.”);
Rotkiske v. Klemm, 140 S. Ct. 355, 361 (2019) (“Atextual
judicial supplementation is particularly inappropriate when,
as here, [the drafter] has shown that it knows how to adopt
the omitted language or provision.”). That the Sentencing
Commission chose to add inchoate offenses to the definition
of “controlled substance offenses” in the commentary,
demonstrates that it, too, recognized they were omitted from
the § 4B1.2(b) definition.
a.
We are not alone in re-evaluating our precedent in light
of the Supreme Court’s decision in Kisor. Prior to Kisor,
circuit courts were already divided on whether to afford
deference to Application Note 1 in determining whether
§ 4B1.2(b) includes inchoate offenses. Kisor deepened the
existing circuit split, as our sister circuits began to rethink
their broad deference to the Guidelines’ commentary.
Before Kisor, when the more permissive deference
standard laid out in Stinson was the law of the land, only the
D.C. and Sixth Circuits declined to defer to Application Note
1 in defining “controlled substance offenses.” See Winstead,
890 F.3d at 1091; United States v. Havis, 927 F.3d 382, 387
(6th Cir. 2019) (en banc) (per curiam). These circuits held
that, under Stinson, the definition of “controlled substance
offense” does not include inchoate offenses.
The D.C. Circuit in Winstead held that § 4B1.2(b)’s
“commentary in Application Note 1 exceeds its authority
under Stinson” because the guideline and its accompanying
UNITED STATES V. CASTILLO 23
commentary are “indeed inconsistent,” and the commentary
impermissibly expands the scope of the plain language of the
guideline. 890 F.3d at 1091. Invoking the canon of
expressio unius, the Winstead court explained that
“[§] 4B1.2(b) presents a very detailed ‘definition’ of
controlled substance offense that clearly excludes inchoate
offenses.” Id. The D.C. Circuit concluded that “the
Commission showed within § 4B1.2 itself that it knows how
to include attempt offenses when it intends to do so.” Id. The
court noted “[i]f the Commission wishes to expand the
definition of ‘controlled substance offenses’ to include
attempts, it may seek to amend the language of the
guidelines by submitting the change for congressional
review.” Id. at 1092.
The Sixth Circuit agreed with Winstead and held that
“[t]he text of § 4B1.2(b) controls, and it makes clear that
attempt crimes do not qualify as controlled substance
offenses.” Havis, 927 F.3d at 387. The Sixth Circuit wrote
that application notes are to be “interpretations of, not
additions to, the Guidelines themselves.” Id. at 386 (quoting
United States v. Rollins, 836 F.3d 737, 742 (7th Cir. 2016)).
Citing Winstead, it reasoned that “[if] that were not so, the
institutional constraints that make the Guidelines
constitutional in the first place—congressional review and
notice and comment—would lose their meaning.” Id. at
386–87. But here, the commentary “d[oes] not interpret a
term in the guideline itself,” but rather “add[s] an offense not
listed in the guideline.” Id. at 386. The Havis court
concluded that the “use of commentary to add attempt
24 UNITED STATES V. CASTILLO
crimes to the definition of ‘controlled substance offense’
deserves no deference” under Stinson. Id. at 387.4
However, before Kisor was decided, the majority of the
remaining circuits agreed with our decisions in Vea-
Gonzales and Crum that because Application Note 1 was
consistent with the “controlled substance offense” guideline,
courts would defer to it, making inchoate offenses
“controlled substance offenses.” See United States v. Piper,
35 F.3d 611, 617 (1st Cir. 1994); United States v. Jackson,
60 F.3d 128, 131 (2d Cir. 1995); United States v. Hightower,
25 F.3d 182, 187 (3d Cir. 1994), overruled by Nasir, 17 F.4th
459; United States v. Mendoza-Figueroa, 65 F.3d 691, 692–
93 (8th Cir. 1995) (en banc); United States v. Smith, 54 F.3d
690, 693 (11th Cir. 1995), overruled by Dupree, 57 F.4th
1269; see also United States v. Walton, 56 F.3d 551, 555–56
(4th Cir. 1995) (relying on Application Note 1 without
explicitly discussing the consistency between the
commentary and the “controlled substance offense”
guideline or conducting a deference analysis); United States
v. Lightbourn, 115 F.3d 291, 293 (5th Cir. 1997) (same);
Boyer v. United States, 55 F.3d 296, 297–98 (7th Cir. 1995)
(same); United States v. Allen, 24 F.3d 1180, 1185–86 (10th
Cir. 1994) (same).
4
Although Havis was published after Kisor, the decision did not cite or
even discuss Kisor’s effect on the deference afforded to the Guidelines’
commentary. See generally Havis, 972 F.3d 382. Indeed, once the Sixth
Circuit had the opportunity to examine the implications of Kisor, it
recognized that its pre-Kisor cases had upheld commentary expanding
the Guidelines, but those cases could not stand after Kisor. See United
States v. Riccardi, 989 F.3d 476, 485 (6th Cir. 2021).
UNITED STATES V. CASTILLO 25
b.
After the Supreme Court issued its decision in Kisor,
however, the Third, Fourth, and Eleventh Circuits joined the
Sixth and D.C. Circuits to hold that we cannot defer to
Application Note 1 to interpret § 4B1.2(b). See Nasir, 17
F.4th at 471 (explaining that, after Kisor, it is clear that the
court went “too far in affording deference to the guidelines’
commentary under” Stinson); United States v. Campbell, 22
F.4th 438, 444 (4th Cir. 2022) (noting that “if there were any
doubt that under Stinson the plain text” of the guideline
requires the conclusion that an attempt offense is not a
“controlled substance offense,” Kisor “renders this
conclusion indisputable”); Dupree, 57 F.4th at 1271, 1277
(holding that, “[w]ith Kisor’s refined deference scheme in
mind,” the “definition of ‘controlled substance offense’ in
§ 4B1.2(b) of the Sentencing Guidelines does not include
inchoate offenses like conspiracy and attempt”).
Specifically, the Third and Eleventh Circuits overturned
their circuit caselaw relying on Stinson, holding that
deference to Application Note 1 is irreconcilable with Kisor.
Accordingly, post-Kisor, the Third, Fourth, Sixth, Eleventh,
and D.C. Circuits do not defer to the expanded definition of
“controlled substance offense” in Application Note 1.5
In Nasir, the Third Circuit overturned its prior ruling in
Hightower, 25 F.3d at 187—in which it had relied on
Stinson’s understanding of deference to commentary—after
5
The Fifth Circuit is also reconsidering its precedent deferring to the
Sentencing Guidelines’ commentary. On August 24, 2022, the Fifth
Circuit granted en banc review to consider Kisor’s impact on its
deference to commentary. See United States v. Vargas, 35 F.4th 936 (5th
Cir. 2022), reh’g en banc granted, vacated, 45 F.4th 1083 (5th Cir.
2022). As of May 23, 2023, the Fifth Circuit’s decision remains pending.
26 UNITED STATES V. CASTILLO
Kisor was issued. Nasir, 17 F.4th at 470–71. The court
explained:
Our interpretation of the commentary at issue
in Hightower – the same commentary before
us now – was informed by the then-prevailing
understanding of the deference that should be
given to agency interpretations of their own
regulations. Thus, although we recognized
that the commentary expanded and did not
merely interpret the definition of “controlled
substance offense,” we nevertheless gave it
binding effect. In doing so, we may have
gone too far in affording deference to the
guidelines’ commentary under the standard
set forth in Stinson. Indeed, after the Supreme
Court’s recent decision in [Kisor], it is clear
that such an interpretation is not warranted.
Id.
The Third Circuit acknowledged that the Supreme Court
in Kisor “cut back on what had been understood to be
uncritical and broad deference to agency interpretations of
regulations and explained that Auer, or Seminole Rock,
deference should only be applied when a regulation is
genuinely ambiguous.” Id. at 471. Applying Kisor’s refined
deference standard, the Nasir court held that “a plain-text
reading of [§] 4B1.2(b)” indicates that it does not include
inchoate crimes. Id. at 471; see also Riccardi, 989 F.3d at
485 (recognizing that broad deference to Guidelines’
commentary “could not stand after Kisor,” and that Kisor
“must awake us ‘from our slumber of reflexive deference’ to
the commentary” (citation omitted)); Mountain Cmtys. for
UNITED STATES V. CASTILLO 27
Fire Safety v. Elliott, 25 F.4th 667, 675 (9th Cir. 2022)
(noting that in Kisor, “the [Supreme] Court has recently
retrenched on [] Auer deference”).
And recently, in Dupree, the Eleventh Circuit joined the
Third Circuit by overruling its prior holdings in United
States v. Weir, 51 F.3d 1031 (11th Cir. 1995), and Smith, 54
F.3d 690, in light of Kisor to conclude that “the definition of
‘controlled substance offense’ in § 4B1.2(b) does not
include inchoate offenses.” Dupree, 57 F.4th at 1271. The
Eleventh Circuit clarified that it was not disregarding
Stinson’s holding, but rather it was “apply[ing] Kisor’s
clarification of Auer deference to Stinson.” Dupree, 57 F.4th
at 1276. Beginning with the text of § 4B1.2(b), and
“applying our traditional tools of statutory interpretation,”
the Dupree court concluded that the plain language of the
guideline’s text “unambiguously excludes inchoate
offenses.” Id. at 1277. Because it found the guideline’s text
unambiguous, the Eleventh Circuit held that its analysis was
complete, and it had “no need to consider, much less defer
to, the commentary in Application Note 1.” Id. at 1279.
The Fourth Circuit has also held that an attempt crime
does not constitute a “controlled substance offense” under
Kisor because the guideline’s plain text does not include
inchoate crimes. Campbell, 22 F.4th at 447. The Campbell
court determined that this was an issue of first impression,
even though it had applied Application Note 1 in its prior
decision in United States v. Kennedy, 32 F.3d 876 (4th Cir.
1994). Id.; see also Kennedy, 32 F.3d at 888 (deferring to
Application Note 1 and determining that a defendant
convicted of conspiracy to distribute cocaine qualified as a
career offender under § 4B1.1). The Campbell court held
that Kennedy was not dispositive because Kennedy did not
determine whether deference to the commentary was
28 UNITED STATES V. CASTILLO
appropriate; it discussed only whether the Sentencing
Commission had the statutory authority to add inchoate
offenses to the definition of “controlled substance offense.”
See Campbell, 22 F.4th at 447. But even assuming Kennedy
and its past cases had resolved the question before it, the
Campbell court held that “Kisor would have at the very least
undermined those cases’ holdings,” and therefore it would
“not [have been] bound” by its prior precedent. Id.6
On the other side of the post-Kisor split, the First,
Second, Seventh, Eighth, and Tenth Circuits have continued
to defer to Application Note 1. Significantly, however,
while these opinions were published after the Supreme
Court’s decision in Kisor, nearly all fail to address how
Kisor affects deference to the Guidelines’ commentary. See
United States v. Richardson, 958 F.3d 151, 154–55 (2d Cir.
2020) (relying on Stinson and prior circuit precedent to
conclude that Application Note 1 is binding, without
engaging in an analysis of Kisor); United States v. Smith, 989
6
We note that twelve days after the Fourth Circuit published Campbell,
it published United States v. Moses, 23 F.4th 347 (4th Cir. 2022), cert.
denied, 143 S. Ct. 640 (2023), in which it found that Application Note
5(C) to U.S.S.G. § 1B1.3 should be afforded binding effect under
Stinson. Id. at 349. In doing so, the Moses court held that “Stinson
continues to apply unaltered by Kisor.” Id. This directly conflicts with
the Campbell court’s opinion. See id. at 359 (King, J., concurring in part)
(“The legal analysis of the panel majority in this case conflicts with the
Campbell precedent in concluding that the Supreme Court’s decision in
Kisor is inapplicable. Crucially, no panel of this Court is entitled to
circumscribe or undermine an earlier panel decision.” (citations
omitted)). Because Campbell is the earlier ruling, Campbell controls;
moreover, unlike Moses, Campbell specifically declines to defer to
Application Note 1. Therefore, we must assume that Fourth Circuit
precedent holds that inchoate crimes do not qualify as controlled
substance offenses under the Guidelines.
UNITED STATES V. CASTILLO 29
F.3d 575, 583–85 (7th Cir. 2021) (continuing to follow its
pre-Kisor precedent which deferred to the commentary of
§ 4B1.2(b), without engaging in an analysis of Kisor);
United States v. Jefferson, 975 F.3d 700, 708 (8th Cir. 2020),
cert. denied, 141 S. Ct. 2820 (2021) (holding that the
commentary controls and relying on past precedent without
engaging in an analysis of Kisor); see also United States v.
Lovato, 950 F.3d 1337, 1347 (10th Cir. 2020); cert. denied,
141 S. Ct. 2814 (2021) (relying on prior circuit precedent to
defer to Application Note 1 without engaging in an analysis
of Kisor).
Only the First Circuit has held that Kisor is not
irreconcilable with its circuit precedent. In United States v.
Lewis, 963 F.3d 16 (1st Cir. 2020), cert. denied, 141 S. Ct.
2826 (2021), the First Circuit concluded that “circuit
precedent forecloses” an argument that the definition of
“controlled substance offense” does not include inchoate
crimes, even after the Supreme Court’s decision in Kisor. Id.at 22–23. Although the Lewis court noted that Kisor requires
that we not afford deference unless a regulation is genuinely
ambiguous, it ultimately held that it “do[es] not find
anything in [its] prior opinions suggesting that those panels
understood themselves as straying beyond the zone of
genuine ambiguity in deeming Application Note 1 consistent
with § 4B1.2.” Id. at 24.
We are unpersuaded by the First Circuit’s decision. The
Lewis court determined it was bound to follow its prior
panels under the “law of the circuit doctrine” because its
circuit precedent interpreted § 4B1.2(b) to be within Kisor’s
“zone of ambiguity.” Id. at 23–24. Therefore, according to
the Lewis court, there was no sound basis to conclude that
the prior panels would have “found in Kisor any reason to
change [their] collective mind[s]” in regard to the extent of
30 UNITED STATES V. CASTILLO
deference owed to Application Note 1. Id. at 24 (alterations
in original) (internal quotation marks and citations omitted).
In our circuit, however, we cannot state with confidence
that prior panels have interpreted § 4B1.2(b) to be within
Kisor’s “zone of ambiguity” so as to trigger deference.
Indeed, the panel in Crum came to the opposite conclusion.
It stated: “If we were free to do so, we would follow the Sixth
and D.C. Circuits’ lead. In our view, the commentary
improperly expands the definition of ‘controlled substance
offense’ to include other offenses not listed in the text of the
guideline.” Crum, 934 F.3d at 966. Because Crum found
that the guideline’s text unambiguously excludes conspiracy
offenses, our prior panel would have “found in Kisor [a]
reason to change [their] collective mind[s].” Lewis, 963 F.3d
at 24 (second and third alteration in original) (internal
quotation marks and citations omitted).
Additionally, the Lewis court made a conclusory finding
that § 4B1.2(b)’s text was ambiguous without “exhaust[ing]
all the traditional tools of construction,” as Kisor requires.
139 S. Ct. at 2415 (internal quotation marks and citation
omitted). We believe that if it had employed these tools, it
would have concluded, as we do, that the guideline
unambiguously excludes inchoate offenses, and therefore
Kisor is an irreconcilable, intervening decision of a higher
authority that requires reexamination of its precedent.
D.
Because we find that § 4B1.2(b)’s definition of
“controlled substance offense” is unambiguous, the Supreme
Court’s decision in Kisor now makes it impermissible to
defer to Application Note 1 to determine whether conspiracy
fits into this definition. Kisor, 139 S. Ct. at 2415 (“If
UNITED STATES V. CASTILLO 31
uncertainty does not exist, there is no plausible reason for
deference.”).
Accordingly, we hold that our precedent in Crum and
Vea-Gonzales applied an inappropriate level of deference to
§ 4B1.2(b)’s commentary, and consequently, these cases are
irreconcilable with Kisor’s instructions regarding review of
agency regulations and deference to an agency’s, including
the Sentencing Commission’s, interpretive commentary. To
the extent that Crum and Vea-Gonzales hold that an inchoate
offense is a “controlled substance offense” for career
enhancement purposes under the Sentencing Guidelines, we
overrule them.7
V.
Further, deference to Application Note 1 raises grave
constitutional concerns. The Sentencing Commission,
“established as an independent commission in the judicial
branch of the United States,” 28 U.S.C. § 991(a), “is fully
accountable to Congress, which can revoke or amend any or
all of the Guidelines.” Mistretta v. United States, 488 U.S.
361, 393 (1989). Moreover, the Commission’s “rulemaking
is subject to the notice and comment requirements of the
7
The Sentencing Commission recently adopted a proposed amendment
to the text of the guideline, which inserts a new sub-section (d) to
§ 4B1.2, that explicitly states that inchoate offenses are included in the
definition of the term “controlled substance offense.” 88 Fed. Reg.
28,275 (May 3, 2023). This amendment may go into effect on November
1, 2023, absent action by Congress, and would affect sentencing
enhancements for future defendants. See U.S.S.G. § 1B1.1(b). That the
Sentencing Commission proposed an amendment to the guideline itself,
rather than to the commentary, further supports our view that an inchoate
offense is a separate crime from the crime conspired about, and that, at
the time of Castillo’s sentence, the commentary improperly expanded the
Guideline’s plain language.
32 UNITED STATES V. CASTILLO
Administrative Procedures Act.” Id. at 394. These
constraints ensure that the Sentencing Commission’s
rulemaking authority does not “upset the constitutionally
mandated balance of powers among the coordinate
Branches.” Id. at 412.
But unlike the Sentencing Guidelines themselves, the
Guidelines’ commentary is not required to undergo notice
and comment requirements; nor is it subject to any other
mandated safeguards to cabin the Sentencing Commission’s
broad authority. 8 See Campbell, 22 F.4th at 446 (“[I]n
fashioning commentary the Commission acts unilaterally,
without that continuing congressional role so vital to the
Sentencing Guidelines’ constitutionality.”). For the most
part, the fact that the commentary is not subject to
constitutional safeguards is unproblematic because we defer
to commentary that “serves only to interpret the Guidelines’
text” and “has no independent legal force.” Havis, 927 F.3d
at 386.
However, the Sentencing Commission’s lack of
accountability in its creation and amendment of the
commentary raises constitutional concerns when we defer to
commentary such as Application Note 1 that expands
unambiguous Guidelines, particularly because of the
extraordinary power the Commission has over individuals’
8
Although the Sentencing Commission provides “to the extent
practicable, comparable opportunities for public input on proposed
policy statements and commentary considered in conjunction with
guideline amendments,” its decision to do so is discretionary, and it
maintains the power to promulgate commentary “without using this
notice-and-comment and congressional-submission procedure.” Moses,
23 F.4th at 353 (citing United States Sentencing Commission, Rules of
Practice and Procedure 6–7 (as amended Aug. 18, 2016)).
UNITED STATES V. CASTILLO 33
liberty interests. See Campbell, 22 F.4th at 446 (explaining
that permitting commentary to add to the Sentencing
Guidelines would “allow circumvention of the checks
Congress put on the Sentencing Commission, a body that
exercises considerable authority in setting rules that can
deprive citizens of their liberty” (citation omitted)); United
States v. Nasir, 982 F.3d 144, 159 (3d Cir. 2020), aff’d on
remand, 17 F.4th 459 (noting that “separation-of-powers
concerns advise against any interpretation of the
commentary that expands the substantive law set forth in the
guidelines themselves”).
Indeed, “the Sentencing Commission has established
significant, legally binding prescriptions governing
application of governmental power against private
individuals” just “short of capital punishment.” Mistretta,
488 U.S. at 413 (Scalia, J., dissenting) (footnote omitted).
As we noted in Crum, by “exercis[ing] its interpretive
authority to expand the definition of ‘controlled substance
offense’ . . . without any grounding in the text of § 4B1.2(b)
and without affording any opportunity for congressional
review,” the Sentencing Commission has used its unchecked
power to infringe on the liberty interests of criminal
defendants. 934 F.3d at 966. “[T]he Commission’s
interpretation will likely increase the sentencing ranges for
numerous defendants whose prior convictions qualify as
controlled substance offenses due solely to Application Note
1.” Id.
Here, Castillo’s career offender enhancement increased
his advisory sentence range from 151–188 months to 262–
327 months under the Sentencing Guidelines. And his
nearly 22-year sentence—imposed by the district court
based on the Sentencing Guidelines—was approximately 7
to 10 years greater than it would have been without the
34 UNITED STATES V. CASTILLO
enhancement, assuming the district court would have
sentenced Castillo within the advisory sentence range.
Surely, neither Kisor nor Stinson permitted the Sentencing
Commission “to invoke its general interpretative authority
via commentary . . . to impose such a massive impact on a
defendant with no grounding in the guidelines themselves.”
Winstead, 890 F.3d at 1092.
VI.
Because the text of § 4B1.2(b) unambiguously does not
include inchoate offenses, and because we are no longer
permitted to rely on the commentary of an unambiguous
guideline after Kisor, we hold that Castillo’s conspiracy
conviction is not a “controlled substance offense” under the
career offender enhancement, § 4B1.1.9 Accordingly, the
district court erred by relying on the PSR’s recommendation
that Castillo qualifies as a career offender. We vacate
Castillo’s sentence and remand for resentencing consistent
with this opinion.
VACATED and REMANDED.
9
Because Castillo does not qualify as a career offender for sentencing
enhancement purposes, we do not reach the issue of whether Castillo’s
state court convictions qualify as controlled substance offenses.