by Douglas Ankney

The U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, held that the definition of “controlled substance offense” for purposes of the career offender sentencing enhancement under U.S. Sentencing Guideline (“USSG”) § 4B1.2(b) unambiguously excludes inchoate offenses like conspiracy and attempt, and therefore, the commentary notes are inapplicable. The Court expressly overruled prior precedent that held to the contrary, viz., United States v. Weir, 51 F.3d 1031 (11th Cir. 1995), and United States v. Smith, 54 F.3d 690 (11th Cir. 1995).

Brandon Romel Dupree pleaded guilty to possession of a firearm after having been convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); conspiracy to possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 846; and carrying a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(i).

 The Presentence Investigation Report (“PSR”) revealed that Dupree had two previous convictions for controlled substance offenses. And the PSR identified Dupree’s current § 846 conspiracy conviction as a third controlled substance offense. Together, these three offenses qualified Dupree for the career offender enhancement of USSG § 4B1.1(a). With the enhancement, Dupree’s advisory sentencing Guidelines range was 211 to 248 months’ imprisonment. Without the enhancement, his sentencing Guidelines range was 144 to 165 months’ imprisonment.

Dupree objected to application of the enhancement, arguing that his conspiracy conviction is not a “controlled substance offense” as defined by USSG § 4B1.2(b); consequently, he is not a career offender because he does not have three qualifying predicate offenses.

The U.S. District Court for the Middle District of Florida overruled Dupree’s objection, but based on mitigating factors, it varied downward from the Guidelines range and sentenced him to 106 months’ imprisonment. Dupree appealed.

A panel of the Eleventh Circuit rejected his argument based on the holdings of Weir (“conspiracy to possess marijuana was a controlled substance offense within the meaning of the career offender enhancement”) and Smith (“Application Note 1 to ... § 4B1.2 constitutes a binding interpretation of the term-controlled substance offense”). The Eleventh Circuit granted Dupree’s petition for a rehearing en banc to revisit circuit precedent.

The Court observed § 4B1.2[(b)] provides: “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, distribution, or dispensing of a controlled substance ... or the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense.”

“The commentary in Application Note 1 to § 4B1.2 adds that the term ‘controlled substance offense’ include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.’” USSG § 4B1.2(b) cmt. n.1. Dupree argued that since § 4B1.2(b) unambiguously excludes inchoate offenses, the Court must not defer to the commentary’s broader definition that includes inchoate offenses. (Inchoate crimes involve: “A step toward the commission of another crime, a step in itself being serious enough to merit punishment.” Inchoate Offense, Black’s Law Dictionary (11th ed. 2019). “The three inchoate offenses are attempt, conspiracy, and solicitation.” Id.)

In Stinson v. United States, 508 U.S. 36 (1993), the Supreme Court explained that the “Sentencing Reform Act of 1984 ... created the Sentencing Commission ... and charged it with the task of establishing sentencing policies and practices for the Federal criminal justice system.” “The Sentencing Commission promulgate[d] the guidelines by virtue of an express congressional delegation of authority for rulemaking.” Id. The Supreme Court then analogized the Guidelines’ commentary to “an agency’s interpretation of its own legislative rules.” Id.

The Supreme Court “determined that the commentary should receive the same level of deference given to an agency’s interpretation of its own rules,” as first described in Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). When “considering how to treat an issuing agency’s interpretation of a regulation, a court initially should consider whether ‘the meaning of the [regulation] is in doubt.” Id. If “the regulation is ambiguous, the court can then consider the issuing agency’s interpretation of the regulation.” Id. “At that point, the court should afford the agency’s construction of its own regulation ‘controlling weight’ unless it is ‘plainly erroneous or inconsistent with the regulation.’” Id.  

The Supreme Court “explained that the Sentencing Commission could resort to the commentary to interpret the Guidelines only ‘if the guideline which the commentary interprets will bear the construction.’” Stinson. “When the ‘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.’” Id. 

The Supreme Court reaffirmed Seminole Rock in Auer v. Robbins, 519 U.S. 452 (1997), concluding that “the Secretary of Labor’s interpretation issued by the Department of Labor was ‘controlling’ because it was not ‘plainly erroneous or inconsistent with the regulation.’” But in Kisor v. Wilkie, 139 S Ct. 2400 (2019), the Supreme Court revisited Auer and clarified that “‘only if a regulation is genuinely ambiguous’ should Auer deference be applied.” In determining whether ambiguity exists, “courts first ‘must exhaust all the traditional tools of construction.’” Id. The Supreme Court “declared, in no uncertain terms, that ‘[i]f uncertainty does not exist, there is no plausible reason for deference. The regulation then just means what it means – and the court must give it effect, as the court would any law.’” Id. Because the Supreme Court did not overrule Stinson in Kisor, the Eleventh Circuit harmonized Stinson and Kisor by concluding that “Kisor’s gloss on Auer and Seminole Rock applies to Stinson.”   

Applying those principles to USSG § 4B1.(2)(b)’s definition of  “controlled substance offense,” the Court reasoned the “definition does not mention conspiracy or attempt or any other inchoate crimes. The exclusion of inchoate crimes from the definition of what the term ‘means’ is a strong indicator that the term does not include those offenses. A ‘definition which declares what a term means excludes any meaning that is not stated.’” Burgess v. United States, 553 U.S. 124 (2008). The Court agreed with the en banc Sixth Circuit’s observation when that circuit overruled its precedent to the contrary: “To make attempt crimes part of § 4B1.2(b), the Commission did not interpret a term in the guideline itself – no term in § 4B1.2(b) would bear that construction.” United States v. Havis, 927 F.3d 382 (6th Cir. 2019). Instead, the Commission purported “to add an offense not listed in the guideline.” Id.

The Court further reasoned that in USSG § 4B1.2(a)(1) (the “sister subsection” to 4B1.2(b)), the Sentencing Commission defined “crime of violence” to include “any offense ... that has as an element the use, attempted use, or threatened use of physical force against the person of another.” This demonstrates that the Sentencing Commission “knew how to include attempted conduct in addition to the conduct itself when it meant to do so,” according to the Court. “A drafting body such as the Sentencing Commission ‘generally acts intentionally when it uses particular language in one section ... but omits it in another.’” Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383 (2015). “This ‘interpretive canon ... applies with particular force’ where the provision that includes specific language is in ‘close proximity’ to the provision that excludes it.” Id. Consequently, because § 4B1.2(b) is not ambiguous in its exclusion of inchoate offenses, the Court determined that it owed no deference to the interpretation supplied by the Commentary.

The Court concluded that “[t]he definition of ‘controlled substance offense’ in § 4B1.2(b) of the Sentencing Guidelines does not include inchoate offenses like conspiracy and attempt. To the extent that this holding conflicts with our prior precedent, that precedent is overruled. The district court erred by sentencing Dupree as a career offender because his conspiracy conviction under 21 U.S.C. § 846 was not a controlled substance offense.”

Accordingly, the Court vacated Dupree’s sentence and remanded for resentencing consistent with its opinion. See: United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc).

Writer’s note: The Court observed in a footnote that the circuit courts are “sharply divided” on this issue. The Third and Sixth Circuits sitting en banc and panels of the Fourth and D.C. Circuits have held that inchoate crimes do not qualify as controlled substance offenses under the Guideline. In contrast, panels of the First, Second, Seventh, and Ninth Circuits along with an en banc Eighth Circuit have reached the opposite conclusion. The panels from the First and Ninth Circuits suggested they would have ruled differently if not constrained by precedent, and the Fifth Circuit vacated its holding that a defendant’s conspiracy convictions qualify as controlled substance offenses and will address the question
en banc.  See opinion for citations to the foregoing
opinions from the various circuits.