by Douglas Ankney

In deepening an already wide Circuit split, the U.S. Court of Appeals for the Ninth Circuit announced that the Court cannot defer to Application Note 1 to U.S. Sentencing Guidelines (“U.S.S.G.”) § 4B1.2(b) because the Guideline is unambiguous and does not include inchoate offenses for purposes of career offender status under U.S.S.G. § 4B1.1; further, the Court expressly overruled United States v. Vea-Gonzales, 999 F.2d 1326 (9th Cir. 1993), and United States v. Crum, 934 F.3d 963 (9th Cir. 2019), to the extent that they held to the contrary.

Robert Castillo pleaded guilty to one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 846 and 841. At sentencing, the U.S. District Court for the Central District of California adopted the presentence report (“PSR”). Pursuant to the PSR, Castillo had two prior convictions under California law that qualified as controlled substance offenses under U.S.S.G. §§ 4B1.1 and 4B1.2(b). The PSR also designated Castillo’s instant conspiracy offense a controlled substance offense. Together, these three offenses qualified Castillo for enhanced sentencing as a “career offender.” § 4B1.1(a).

The PSR applied the career offender enhancement in arriving at Castillo’s calculated Guidelines range of 262 to 327 months. (Without the enhancement, Castillo’s calculated Guidelines range would have been 151 to 188 months.) The District Court sentenced Castillo to 262 months in custody followed by 10 years of supervised release. Castillo timely appealed.

The Court began its analysis by observing “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.” § 4B1.1(a). The definitions to the terms used in U.S.S.G. § 4B1.1 are provided in U.S.S.G. § 4B1.2 with “controlled substance offense” defined as: “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).

While the text of § 4B1.2(b) does not identify conspiracy to commit any of those offenses as being a controlled substance offense, the Guideline’s commentary expands the definition. The Court observed “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.’”

The Court, citing United States v. Iribe, 564 F.3d 1155 (9th Cir. 2009), observed “[c]onspiracy is an inchoate offense that is separate and independent from the crime that is the subject of the conspiracy.” Black’s Law Dictionary (“Black’s”) defines “inchoate offense” as a “step toward the commission of another crime, the step in itself being serious enough to merit punishment,” and Black’s lists “attempt, conspiracy, and solicitation” as three inchoate offenses. Black’s (11th ed. 2019). “Because, ‘[b]y definition’ inchoate crimes ‘do not require completion of the criminal objective,’ United States v. Macias-Valencia, 510 F.3d 1012 (9th Cir. 2007), the Guidelines distinguish between inchoate offenses and underlying substantive offenses.” For example, where a conspiracy offense is not covered by a specific Guideline, the base level of the substantive offense named in the conspiracy “must be decreased by 3 levels unless certain narrow circumstances apply.” §§ 2X1.1(b)(2), (c).

The Court stated in the present case that 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)’ … ‘impermissibly exceeds the scope of § 4B1.2(b).’” But Vea-Gonzales was decided under the framework of Stinson v. United States, 508 U.S. 36 (1993). In Stinson, the U.S. Supreme Court 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.” Stinson, relying on Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), likened the Sentencing Commission’s commentary to a federal agency’s interpretation of its own rules. Stinson’s deference “provide[d] concrete guidance as to how even unambiguous guidelines are to be applied in practice.” Id. And even where the commentary expanded upon a Guideline’s meaning, it is binding on federal courts if it is not erroneous or plainly inconsistent. Auer v. Robbins, 519 U.S. 452 (1997).

But the Ninth Circuit observed that in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), the U.S. Supreme Court narrowed the deference to be given to an agency’s interpretation of its own rules, viz., deference is to be given only where the rule itself is ambiguous. “[A]nd 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.” Kisor.

While Kisor “examined and narrowed Seminole Rock and Auer deference in the context of an administrative agency’s interpretation of its own regulation,” Stinson’s deference to the Sentencing Commission’s commentary “is directly grounded in Seminole Rock and Auer deference,” the Court explained. Therefore, “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 (11th Cir. 2023).

Pursuant to Kisor’s framework, the Court examined U.S.S.G. § 4B1.2(b) to determine if it is ambiguous. The canon of construction “expressio unius est exclusio alterius” requires the Court “to infer from Congress’s express inclusion of enumerated offenses that its exclusion of inchoate crimes was intentional.” United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc). “A definition which declares what a term means excludes any meaning that is not stated.” Burgess v. United States, 553 U.S. 124 (2008).

Additionally, U.S.S.G. § 4B1.2(a)(1) – the “sister subsection” to 4B1.2(b) – defines “crime of violence” to include inchoate offenses with the element of “attempted use” of “physical force against the person of another.” When Congress “uses particular language in one section of a statute but omits it in another,” Congress “acts intentionally,” and this canon of construction “applies with particular force” where the use and omission occur “in close proximity” to one another, according to the Court. Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383 (2015).

Since U.S.S.G. § 4B1.2(b) is not ambiguous, the Court cannot defer to Application Note 1. Kisor. Consequently, the Court concluded that Castillo’s instant conviction for conspiracy to distribute methamphetamine was not a qualifying “controlled substance offense” as defined by § 4B1.2(b), and the career offender enhancement was inapplicable to him. In so holding, the Court joins the Third, Fourth, Sixth, Eleventh, and D.C. Circuits. 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. Havis, 927 F.3d 382 (6th Cir. 2019); United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc); United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018).

Whereas, the First, Second, Seventh, Eighth, and Tenth Circuits reached the opposite conclusion post-Kisor, creating a split among the Circuits. See United States v. Lewis, 963 F.3d 16 (1st Cir. 2020); United States v. Richardson, 958 F.3d 151 (2d Cir. 2020); United States v. Smith, 989 F.3d 575 (7th Cir. 2021); United States v. Jefferson, 975 F.3d 700 (8th Cir. 2020); United States v. Lovato, 950 F.3d 1337 (10th Cir. 2020).

The Court recognized that its holding is contrary to Ninth Circuit precedent decided pre-Kisor. Both Vea-Gonzales and Crum held that inchoate offenses are included in § 4B1.2(b)’s definition due to the deference the Court must give to Application Note 1. Ordinarily, a panel of the Court of Appeals is bound by circuit precedent; however, “a three-judge panel may reexamine normally controlling circuit precedent in the face of an intervening United States Supreme Court decision … where the reasoning or theory of [the Court’s] prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority.” Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003).

Because Vea-Gonzales and Crum were decided within the framework of Stinson deference, those holdings are clearly irreconcilable with the reasoning and theory of Kisor, the Court explained. The Court concluded: “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.”

Accordingly, the Court vacated Castillo’s sentence and remanded for resentencing consistent with the instant opinion. See: United States v. Castillo, 69 F.4th 648 (9th Cir. 2023).  

Editor’s note: Anyone with an interest in this issue should read the full opinion because it provides a thorough analysis of the issue as well as a helpful review of the position of each of the Circuits’ that have addressed the issue post-Kisor.

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