confirming that Kisor is undisturbed by the Supreme Court’s decision eliminating Chevron deference
How later courts described this case
- confirming that Kisor is undisturbed by the Supreme Court’s decision eliminating Chevron deference
- observing that “no Court of Appeals has yet addressed whether the Commission’s interpretation of ‘another felony offense’ is reasonable under Kisor’s framework”
- “Loper Bright did not cast doubt on the deference Kisor afforded to an agency’s reasonable interpretation of its own genuinely ambiguous regulation.”
- “If the Guideline is unambiguous, we disregard the commentary.”
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 23-1899
_____________
UNITED STATES OF AMERICA
v.
NAHSIEM MCINTOSH,
a/k/a Nahsiem McIntosh,
Appellant
_______________
On Appeal from the District Court
For the District of Delaware
(D.C. No. 1-20-cr-00040-001)
District Judge: Honorable Colm F. Connolly
_______________
Argued on July 30, 2024
Before: KRAUSE, RESTREPO, and MATEY, Circuit
Judges.
(Filed: December 23, 2024)
Janet M. Bateman
Mary K. Healy [ARGUED]
Office of the Federal Public Defender
800 King Street
Suite 200
Wilmington, DE 19801
Counsel for Appellant
Jesse S. Wenger [ARGUED]
Office of the United States Attorney
1313 N Market Street
Hercules Building, Suite 400
Wilmington, DE 19801
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
KRAUSE, Circuit Judge.
We are called upon once again to examine the authority
of the Sentencing Commission to interpret its own Guidelines
in the wake of Kisor v. Wilkie, 588 U.S. 558 (2019)—this time
in the context of two sentencing enhancements, the first
concerning theft of a semiautomatic firearm capable of
accepting a “large capacity magazine,” U.S.S.G.
§ 2K2.1(a)(4)(B), and the second concerning possession of a
firearm “in connection with another felony offense,” id.
§ 2K2.1(b)(6)(B). After Appellant Nahsiem McIntosh pleaded
guilty to federal firearm offenses stemming from his burglary
2
of a sporting goods store, the District Court applied both
enhancements as interpreted in the Commission’s commentary
to those Guidelines—commentary that McIntosh contends is
not entitled to deference. He is mistaken. The relevant
commentary reasonably interprets genuinely ambiguous
Guidelines and is entitled to controlling weight because it
implicates the Commission’s substantive expertise. We
therefore will affirm.
I. Factual and Procedural Background
On a spring night in 2020, McIntosh smashed the glass
front door of the American Sportsman in Newark, Delaware,
and entered with codefendant Derris Lloyd. After breaking
several display cases, McIntosh and Lloyd grabbed a mix of
handguns and larger firearms, including an AR-15-style
weapon. The next day, law enforcement pulled over the car in
which McIntosh was traveling. McIntosh exited the vehicle
and began walking down an alley, stopping to throw a black
grocery bag in a trashcan. One agent detained McIntosh while
another agent searched the trashcan and confirmed that the bag
contained a loaded semiautomatic pistol that was stolen from
the sporting goods store the previous night. McIntosh was
subsequently arrested.
A grand jury indicted McIntosh on three counts, and he
pleaded guilty to two of them: (1) theft of firearms from a
federal firearm licensee, in violation of 18 U.S.C. § 922(u); and
(2) being a felon in possession of a firearm, in violation of 18
3
U.S.C. § 922(g)(1).1 Upon receiving his presentence report,
McIntosh filed numerous objections, only two of which are
relevant here. First, McIntosh argued that the report
incorrectly included a four-level enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B), which applies when a defendant “possessed
any firearm . . . in connection with another felony offense.”
Second, McIntosh challenged the application of a six-level
enhancement under U.S.S.G. § 2K2.1(a)(4)(B) for possessing
a “semiautomatic firearm that is capable of accepting a large
capacity magazine.” After hearing argument and soliciting
supplemental briefing, the District Court overruled McIntosh’s
objections and imposed a bottom-of-the-Guidelines sentence
of 100 months for each of the two counts, to run concurrently.
This appeal followed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 18 U.S.C.
§ 3231, and we have jurisdiction under 28 U.S.C. § 1291. We
review the District Court’s interpretation of the Sentencing
Guidelines de novo. United States v. Richards, 674 F.3d 215,
218 (3d Cir. 2012).
III. Discussion
The Sentencing Commission promulgates Guidelines to
facilitate “‘uniformity’ and ‘proportionality’” in sentencing,
United States v. Payano, 930 F.3d 186, 194 n.8 (3d Cir. 2019)
1
The third count, for possession of a stolen firearm which had
been shipped and transported in interstate commerce, in
violation of 18 U.S.C. § 922(j), was dismissed in connection to
the plea agreement.
4
(quoting Molina-Martinez v. United States, 578 U.S. 189, 192
(2016)), and those Guidelines are often self-explanatory, but
not always. For this reason, the Commission has, over time,
supplemented them with a plethora of interpretive
commentary. The Supreme Court has described the Guidelines
themselves as analogous to rules promulgated by
administrative agencies, but the commentary as “akin to an
agency’s interpretation of its own legislative rules.” Stinson v.
United States, 508 U.S. 36, 45 (1993).2
For many years, consistent with the demands of Bowles
v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) and
Auer v. Robbins, 519 U.S. 452, 461 (1997), we gave the
commentary “controlling weight” unless it was “plainly
erroneous or inconsistent with the” Guidelines. Stinson, 508
U.S. at 45 (quoting Seminole Rock, 325 U.S. at 414). In 2019,
however, the Supreme Court decided Kisor v. Wilkie, 588 U.S.
558 (2019), which, as we explained in United States v. Nasir,
limited “what had been understood to be uncritical and broad
2
According to federal law, the Guidelines—but not the
accompanying commentary—must go through notice-and-
comment rulemaking. See 28 U.S.C. § 994(x); United States
v. Castillo, 69 F.4th 648, 663 (9th Cir. 2023). In practice, the
Commission subjects the commentary, including the
commentary at issue here, to the same procedure. See Castillo,
69 F.4th at 663 n.8; Sentencing Guidelines for United States
Courts, 71 Fed. Reg. 4782, 4789–91 (proposed Jan. 27, 2006).
However, because the Commission’s practice of soliciting
feedback on the commentary is “discretionary” and thus
subject to change at any time, we treat the commentary as
interpretive. Castillo, 69 F.4th at 663 n.8; see also United
States v. Riccardi, 989 F.3d 476, 488–89 (6th Cir. 2021).
5
deference to agency interpretations of [their own] regulations,”
and prompted us to adopt a three-step test to ascertain if a
particular provision of Guidelines commentary merits
deference, 17 F.4th 459, 471 (3d Cir. 2021) (en banc).3 First,
3
The Supreme Court recently overruled the Chevron
doctrine—which directed courts to defer to an agency’s
reasonable interpretation of a genuinely ambiguous statute that
it administers—and declared that courts must now generally
“exercise their independent judgment” to determine the “best
reading of a statute.” Loper Bright Enterprises v. Raimondo,
144 S. Ct. 2244, 2263, 2273 (2024). But “[i]ssues surrounding
judicial deference to agency interpretations of their own
regulations are distinct from those raised in connection with
judicial deference to agency interpretations of statutes enacted
by Congress,” Kisor v. Wilkie, 588 U.S. 558, 591 (2019)
(Roberts, C.J., concurring in part), and Loper Bright did not
cast doubt on the deference Kisor afforded to an agency’s
reasonable interpretation of its own genuinely ambiguous
regulation. Thus, we and other Courts of Appeals have
continued to defer to the Commission’s commentary under
Kisor. See United States v. Chandler, 104 F.4th 445, 450–55
(3d Cir. 2024) (applying Kisor to defer to the Commission’s
interpretation of a genuinely ambiguous Guideline), reh’g en
banc denied, 114 F.4th 240 (3d Cir. 2024); United States v.
Boler, 115 F.4th 316, 322 & n.4 (4th Cir. 2024) (deferring to
Guidelines commentary under Kisor because “Loper Bright
. . . did not address the issue of agency interpretations of their
own regulations”); United States v. Trumbull, 114 F.4th 1114,
1117–18, 1118 n.2 (9th Cir. 2024) (continuing to defer to
commentary under Kisor because the “Supreme Court did not
call Kisor into question in Loper Bright . . . and . . . did not
6
we examine the underlying Guideline’s “text, structure,
history, and purpose” to determine whether it is “genuinely
ambiguous.” United States v. Mercado, 81 F.4th 352, 356 (3d
Cir. 2023) (quoting Nasir, 17 F.4th at 471). If the Guideline is
unambiguous, we disregard the commentary. Id. But if the
Guideline is ambiguous, we “proceed to step two and consider
whether the corresponding commentary is ‘reasonable,’ i.e.,
within ‘the outer bounds of permissible interpretation.’” Id.
(quoting Nasir, 17 F.4th at 471). If the commentary is in fact
reasonable, we ask “whether the character and context of the
agency interpretation entitles it to controlling weight.” Id.
(quoting Nasir, 17 F.4th at 471). We defer only if we answer
yes to all three questions.
Today, we put two commentary provisions, both of
which interpret U.S.S.G § 2K2.1, to the test. The first, found
at Application Note 2, interprets § 2K2.1(a)(4)(B)’s
enhancement for crimes involving a “semiautomatic firearm
that is capable of accepting a large capacity magazine” to apply
when the relevant firearm had a magazine “that could accept
more than 15 rounds of ammunition.” U.S.S.G. § 2K2.1 cmt.
n.2. The second, found at Application Note 14(B), interprets
§ 2K2.1(b)(6)(B)’s enhancement for “us[ing] or possess[ing]
any firearm or ammunition in connection with another felony
offense” to apply “in a case in which a defendant who, during
the course of a burglary, finds and takes a firearm, even if the
defendant did not engage in any other conduct with that firearm
overrule it”); United States v. Ponle, 110 F.4th 958, 961–63,
961 n.3 (7th Cir. 2024) (deferring to commentary under Kisor
because deference to the Commission’s interpretation of its
own Guidelines “is different from Chevron deference”).
7
during the course of the burglary.” Id. cmt. n.14(B). We
address each in turn.
A. “Large Capacity Magazine”
The District Court applied a six-level enhancement
because McIntosh’s crimes “involved” a “semiautomatic
firearm that is capable of accepting a large capacity magazine”
and he was “a prohibited person at the time.” U.S.S.G.
§ 2K2.1(a)(4)(B). For help with the term “large capacity
magazine,” the Court looked to Application Note 2, which
defines such a magazine as capable of accepting “more than 15
rounds of ammunition.” The parties do not dispute that one of
the stolen guns was an AR-556, an AR-15-style rifle sold with
a magazine capable of accepting more than 15 rounds. The
only question is whether the District Court’s deference to
Note 2 was appropriate. Under the three-step analysis we
articulated in Nasir, it was.
1. Ambiguity
We first ask whether the regulatory term “large capacity
magazine” is genuinely ambiguous, i.e., “susceptible to more
than one reasonable reading.” United States v. Caraballo, 88
F.4th 239, 245 (3d Cir. 2023) (quoting Kisor, 588 U.S. at 566).
Both parties concede that it is, and we agree.4 “Large” is a
4
Here, on the premise that all AR-15s can accept aftermarket
magazines containing up to 100 rounds of ammunition, our
concurring colleague takes the position that McIntosh’s stolen
firearm was “unambiguously . . . capable of accepting a large
capacity magazine.” Conc. Op. at 4 (citation omitted). But
8
relational term subject to various interpretations. It could mean
“having more than usual capacity or scope,” implying the need
to evaluate an object in relation to an average, or it could
simply mean “dealing in great numbers or quantities.” Large,
Merriam-Webster Online Dictionary, https://perma.cc/HUF8-
EG5S. Evincing this ambiguity, fourteen states and the District
of Columbia have adopted numerical definitions of the term,
ranging from 10 rounds to 17 rounds, in their respective penal
codes. See infra note 8. As our concurring colleague recently
put it: “[T]here simply is no such thing as a ‘large capacity
magazine.’ It is a regulatory term created by the State, meaning
no more than the maximum amount of ammunition the State
has decided may be loaded into any firearm at one time.
Sixteen rounds was large yesterday, eleven rounds is large
today.” Ass’n of N.J. Rifle & Pistol Clubs Inc. v. Att’y Gen.,
No. 19-3142, 2022 WL 22860232, at *4 (3d Cir. Aug. 25,
2022) (Matey, J., dissenting). In short, because “exactly what
is being regulated” by “the protean ‘large capacity magazine’”
has caused “confusion” and “not been clear,” id. at *3, *4, we
conclude the term is genuinely ambiguous.
that factual premise appears to rest on law review articles cited
by neither party, and “[t]he normal rule [is] that this court
considers only the factual record before the district court.” In
re Am. Biomaterials Corp., 954 F.2d 919, 922 (3d Cir. 1992).
We thus confine ourselves to the record, and the only evidence
in the record is that the stolen firearm could hold more than 15
rounds of ammunition. Cf. United States v. Abrego, 997 F.3d
309, 312, 313 (5th Cir. 2021) (reversing a district court’s
finding that a firearm was capable of accepting a large capacity
magazine solely because the firearm manufacturer’s website
indicated that “twenty-round magazines” came “standard with
that firearm”).
9
2. Reasonableness
As the term “large capacity magazine” is indisputably
ambiguous, we proceed to consider the reasonableness of the
Commission’s interpretation.
The question of reasonableness is more vexing, and it is
here that the parties part ways. According to McIntosh, the
commentary’s 15-round specification is unreasonable in
several respects: First, it creates unwarranted parity between
firearms regulated under the National Firearms Act, see 26
U.S.C. § 5845(a), and otherwise legal semiautomatic firearms.
Second, it unreasonably limits the sentencing flexibility
endorsed in another provision of the Guidelines. Third, it
defines a common type of firearm as “large.” And fourth, it
sets an arbitrary threshold that makes the commentary more
legislative than interpretive. None of these arguments hold
water.
The first is based on legislative history. In the Violent
Crime Control and Law Enforcement Act of 1994, Congress
banned the possession of “semiautomatic assault weapons,”
newly defined in 18 U.S.C. § 921(a)(30) according to a
firearm’s make and characteristics. Pub. L. No. 103-322,
§ 110102(a)–(b), 108 Stat. at 1996–98 (Assault Weapons Ban).
The law also instructed the Commission to add a sentencing
enhancement for certain crimes involving a “semiautomatic
firearm.” Id. § 110501(a), 108 Stat. at 1996, 2015. In
response, the Commission amended § 2K2.1(a)—the
Guideline at issue here—to raise the base offense level for
crimes involving semiautomatic assault weapons up to the base
level for crimes involving a “firearm that is described in 26
10
U.S.C. § 5845(a),” i.e., a firearm as defined by the National
Firearms Act.
The Assault Weapons Ban expired in 2004, id.
§ 110105, 108 Stat. at 2000, leading to “inconsistent
application” of § 2K2.1(a)’s enhancements under the now-
expired 18 U.S.C. § 921(a)(30). Sentencing Guidelines for
United States Courts, 71 Fed. Reg. 28,063, 28,070 (May 15,
2006). To clarify, the Commission amended § 2K2.1(a) by
deleting the references to 18 U.S.C. § 921(a)(30) and replacing
them with the term “semiautomatic firearm capable of
accepting a large capacity magazine,” which it defined in
Application Note 2 as a semiautomatic firearm with a
magazine capable of accepting more than 15 rounds of
ammunition. Id.; see also United States v. Gordillo, 920 F.3d
1292, 1297–98 (11th Cir. 2019). The Commission maintained
sentencing parity for offenses committed using such firearms
and those committed using a firearm defined in 26 U.S.C.
§ 5845(a), which remains in operation.
McIntosh contends that it was unreasonable for the
Commission to maintain this parity after the Assault Weapon
Ban expired. But the sentencing enhancement applies only to
“prohibited person[s]” who are not allowed to possess firearms
in the first place. U.S.S.G. § 2K2.1(a)(4)(B). And as several
courts have previously observed, “the Sentencing Commission
has the authority to conclude that the possession of certain
kinds of firearms by felons or other prohibited persons is
especially dangerous, even if possession of such weapons by
the general public is not otherwise prohibited by law.” United
States v. Myers, 553 F.3d 328, 331 (4th Cir. 2009); see also
United States v. Roberts, 442 F.3d 128, 130 (2d Cir. 2006)
(“We are aware of no authority that prevents . . . the Sentencing
11
Commission . . . from incorporating by reference any definition
they choose in the Sentencing Guidelines, whether or not that
definition is contained in a currently operative provision of the
United States Code.”); United States v. Marceau, 554 F.3d 24,
30 (1st Cir. 2009); United States v. Barron, 557 F.3d 866, 871
(8th Cir. 2009).
McIntosh next argues that the commentary is
unreasonable because it conflicts with U.S.S.G. § 5K2.17, a
Guidelines provision that permits an upward departure when
the defendant “possessed a semiautomatic firearm capable of
accepting a large capacity magazine in connection with a crime
of violence or controlled substance offense.” According to
McIntosh, Note 2’s rigid definition of “large capacity
magazine” conflicts with the flexibility embodied by § 5K2.17,
which instructs that any upward departure should “depend
upon the degree to which the nature of the weapon increased
the likelihood of death or injury in the circumstances of the
particular case.” But we see no conflict because departures
from an applicable Guidelines sentence are always
discretionary and thus always involve some amount of
flexibility. See United States v. Powell, 269 F.3d 175, 178–79
(3d Cir. 2001) (explaining that departures from the Guidelines
are reviewed for abuse of discretion). And the very language
that McIntosh associates with flexibility still specifies a
numeric definition for “large capacity.” See U.S.S.G. § 5K2.17
(defining a “large capacity magazine” as a magazine capable
of accepting “more than 15 rounds of ammunition”). Any
perceived conflict between Note 2 and § 5K2.17 is illusory.
In his third challenge, McIntosh asserts that it is
unreasonable to interpret “large capacity magazine” to include
standard firearm equipment. As he points out, most pistols
12
purchased in the United States today are sold with magazines
capable of holding between 10 and 17 rounds, and the
Commission itself recognizes that “semiautomatic firearms are
used in 50–70 percent of offenses involving a firearm” and
“represent the typical or ‘heartland’ case under the guidelines.”
Amendments to the Sentencing Guidelines for the United
States Courts, 60 Fed. Reg. 25,074, 25,088 (May 10, 1995).
According to McIntosh, such “common, standard equipment”
is not “large”—it is the norm. Opening Br. 25.
True, the word “large” is relational and thus
meaningless without reference to a “smaller” comparator. But
though the term “large capacity magazine” contemplates the
existence of magazines with smaller capacities, it does not
imply, as McIntosh insists, that a “large capacity magazine . . .
necessarily exceeds the standard magazine or has more
capacity than the standard magazine.” Id. at 27. Merriam-
Webster explains that “large” can mean “exceeding most other
things of like kind,” but it can also mean “dealing in great
numbers or quantities.”5 As the Ninth Circuit explained when
rejecting this precise argument, “[s]omething can be both
popular and large, such as the standard capacity magazine of
[a] popular firearm,” but the popularity of that firearm “does
not mean that a magazine that can accept more than fifteen
rounds is not also a ‘large capacity magazine.’” United States
v. Trumbull, 114 F.4th 1114, 1119 (9th Cir. 2024). Imagine a
clothing store with three sizes: “small,” “medium,” and
“large.” Even if most customers wear a “large,” that “fact does
not transform the large size into nonlarge,” United States v.
5
Large, Merriam-Webster Online Dictionary,
https://perma.cc/HUF8-EG5S.
13
Martin, 119 F.4th 410, 414 (5th Cir. 2024), and the store would
still be justified in maintaining its existing sizes.
Finally, McIntosh contends that the Commission’s
adoption of a “bright-line floor” in its commentary
impermissibly “expands” the Guidelines and is therefore not
interpretive, but rather a “legislative policy choice” requiring
notice-and-comment rulemaking. Opening Br. 29. In support,
he cites two out-of-circuit cases, Hoctor v. U.S. Department of
Agriculture, 82 F.3d 165 (7th Cir. 1996) and United States v.
Riccardi, 989 F.3d 476 (6th Cir. 2021), but both are readily
distinguishable.
In Hoctor, the Department of Agriculture had
interpreted the regulatory term “structurally sound [facility]”
to mean a facility with a perimeter fence at least 8 feet high.
82 F.3d at 168. The Seventh Circuit held that requirement to
be “an arbitrary choice among methods of implementation”
that could not “be derived from the regulation by a process
reasonably described as interpretation” and was thus
“legislative.” Id. at 170. But while a 15-round magazine
capacity, like an 8-foot fence, might seem like an “arbitrary”
threshold, the error ascribed to the agency in Hoctor was its
interpretation of a qualitative regulatory term by resort to a
quantity, whereas the Sentencing Commission in Note 2 is
interpreting a quantitative regulatory term—“large capacity
magazine”—that, by its nature, calls for a numeric
interpretation.6
6
In any event, the Seventh Circuit explicitly cautioned that it
was “not saying that an interpretive rule can never have a
numerical component,” Hoctor v. U.S. Dep’t of Agric., 82 F.3d
14
Riccardi is no more persuasive. There, a defendant was
convicted of stealing gift cards with an average value of $35
each, but his offense level at sentencing was determined using
commentary7 that assigned a “loss” of “not less than $500” for
each stolen card. 989 F.3d at 479. Reasoning that “[n]o
reasonable person would define the ‘loss’ from a stolen gift
card as an automatic $500,” id. at 486, especially when the
actual value of the stolen gift card was a known quantity, the
Sixth Circuit held that the commentary’s “bright-line rule”
does not fall within the “zone of ambiguity” of the Guideline’s
term “loss,” id. at 480 (quoting Kisor, 588 U.S. at 576). But
while that bright-line rule conflicted with the ordinary
understanding of attributable “loss” at sentencing and
expanded the Guideline’s punitive effect to cover conduct that
165, 171 (7th Cir. 1996), and many courts of appeals have since
upheld agencies’ numeric interpretations of qualitative
regulatory terms, see, e.g., United States v. Phillips, 54 F.4th
374, 386 (6th Cir. 2022) (upholding Guidelines commentary
interpreting a video as containing 75 “images”); Marsh v. J.
Alexander’s LLC, 905 F.3d 610, 628–29 (9th Cir. 2018) (en
banc) (upholding the Department of Labor’s interpretation of
the regulatory terms “occasionally” and “part of [the] time” as
meaning “less than or equal to 20 percent of the time”); Fast v.
Applebee’s Int’l, Inc., 638 F.3d 872, 880–81 (8th Cir. 2011)
(same); Warshauer v. Solis, 577 F.3d 1330, 1340 (11th Cir.
2009) (upholding the Department of Labor’s interpretation of
the regulatory term “insubstantial value” as meaning $250 or
less); cf. United States v. Haggerty, 107 F.4th 175, 178 (3d Cir.
2024) (interpreting the Guidelines term “images” in the video
context to unambiguously mean number of frames per video).
7
See U.S.S.G. §§ 2B1.1(b)(1), 2B1.1 cmt. n.3(F)(i).
15
never occurred, the 15-round specification in Note 2 falls
within the “zone of ambiguity” of the word “large” and, if
anything, restricts the punitive effect of U.S.S.G.
§ 2K2.1(a)(4)(B) by establishing a relatively high threshold
below which the enhancement does not apply. Indeed, the
threshold set by the Commission in Note 2 exceeds the
thresholds set by many state legislatures.8
In sum, none of McIntosh’s arguments cast doubt on the
reasonableness of the Commission’s interpretation of U.S.S.G.
§ 2K2.1(a)(4)(B) in Note 2, so we proceed to the third step of
the analysis under Nasir.
8
Currently, fourteen states and the District of Columbia
regulate “large capacity” magazines in some capacity. Of
those jurisdictions, 10 states and the District of Columbia limit
magazine capacity to no more than 10 rounds. See, e.g., Cal.
Penal Code § 16740; Conn. Gen. Stat. § 53-202w(a)(1); D.C.
Code § 7-2506.01(c); Haw. Rev. Stat. § 134-8(c); Md. Code
Ann., Crim. Law § 4-305(b); Mass. Gen. Laws ch. 140, § 121;
N.J. Stat. Ann. § 2C:39-1(y); N.Y. Penal Law § 265.00(23);
Or. Rev. Stat. § 166.355(1)(d); R.I. Gen. Laws § 11-47.1-2(2);
Wash. Rev. Code § 9.41.010(25). Two states restrict long guns
to 10 rounds and handguns to 15 rounds. See 720 Ill. Comp.
Stat. 5/24-1.10(a)(1); Vt. Stat. Ann. tit. 13, § 4021(e)(1).
Colorado is the only state to adopt a 15-round numeric
threshold, see Colo. Rev. Stat. § 18-12-301(2)(a)(I), while
Delaware—the only state with a higher threshold than
U.S.S.G. § 2K2.1(a)(4)’s Application Note 2—defines “large-
capacity” as being able to hold “more than 17 rounds of
ammunition,” Del. Code. Ann. tit. 11, § 1468(2).
16
3. Entitled to Controlling Weight
At the third step, we determine whether Note 2 is
entitled to controlling weight, that is, whether it represents the
Commission’s “official position,” implicates the
Commission’s “substantive expertise,” and reflects the
Commission’s “‘fair and considered judgment’ such that it is
not simply a ‘convenient litigating position.’” Mercado, 81
F.4th at 359 (quoting Nasir, 17 F.4th at 471).
McIntosh contends that Note 2 fails this test because it
is an “arbitrary policy choice” that the Commission does not
explain. Opening Br. 33. Not so. The Commission defined
“large capacity magazine” in response to “inconsistent
application” of § 2K2.1(a) resulting from the Assault Weapons
Ban’s repeal. 71 Fed. Reg. at 28,070. And regardless, the “fair
and considered judgment” inquiry goes not to whether the
commentary is arbitrary, but to whether the commentary
represents a “convenient litigating position” or “post hoc
rationalization.” See Caraballo, 88 F.4th at 249; United States
v. Vargas, 74 F.4th 673, 697 (5th Cir. 2023). Here, having
gone through notice-and-comment rulemaking, it does not.
See Trumbull, 114 F.4th at 1120–21 (holding that because
Application Note 2’s definition of “large capacity magazine”
went through notice-and-comment and congressional review,
it “was an exercise of the Commission’s ‘fair and considered
judgment’” and thus entitled to deference under Kisor)
(quoting Kisor, 588 U.S. at 579)).
In addition, Note 2 “implicates the Commission’s
expertise in ‘[d]eveloping proportionate penalties for hundreds
of different crimes by a virtually limitless array of offenders,’”
United States v. You, 74 F.4th 378, 398 (6th Cir. 2023) (quoting
17
Mistretta v. United States, 488 U.S. 361, 379 (1989)), and its
“data driven” expertise concerning what types of weapons
cause the most harm, Mercado, 81 F.4th at 360. Indeed, the
determination that the enhancement should apply to those
firearms capable of holding more than 15 rounds of
ammunition falls squarely within the Commission’s
“discretionary authority to determine the relative severity of
federal crimes.” Mistretta, 488 U.S. at 377.
Because “Application Note 2’s interpretation of ‘large
capacity magazine’ . . . meets the extensive requirements for
deference laid out in Kisor,” Trumbull, 114 F.4th at 1121, we
will affirm the District Court’s application of § 2K2.1(a)(4)(B),
see also Martin, 119 F.4th at 415 (concluding that “the
commentary’s definition of ‘large capacity magazine’ is
authoritative” and “binding and controlling on courts”).
B. “Another Felony Offense”
The District Court applied a four-level enhancement
under § 2K2.1(b)(6)(B) to reflect the fact that McIntosh
“possessed . . . firearm[s] in connection with another felony
offense.”9 Application Note 14(C) defines “another felony
9
McIntosh does not contend that the phrase “in connection
with” precludes the application of § 2K2.1(b)(6)(B) here, and
it does not. As we recently clarified in United States v. Clark,
“in connection with” does not “require a causal nexus between
firearm possession and the secondary felony.” 115 F.4th 245,
250 (3d Cir. 2024). Instead, the phrase is “construed
expansively” to “apply to ‘a wide range of relationships
between the firearm possession and the other felony offense,’”
18
offense” as “any federal, state, or local offense . . . punishable
by imprisonment for a term exceeding one year, regardless of
whether a criminal charge was brought, or a conviction
obtained,” and Note 14(B) specifies that this enhancement
applies when a defendant, “during the course of a burglary,
finds and takes a firearm, even if the defendant did not engage
in any other conduct with that firearm during the course of the
burglary.”
McIntosh does not contest that his conduct at the
American Sportsman constituted felony burglary under
Delaware law in that he “knowingly enter[ed]” the store “with
intent to commit a crime therein.” Del. Code Ann. tit. 11,
§ 824. He argues only that the Commission’s definition of
“another felony offense” is not entitled to deference because,
in his view, the Guidelines text unambiguously excludes
firearm possession in the same course of conduct as the other
felony offense. Once again, however, we will defer to the
commentary because (1) the underlying guideline is
“genuinely ambiguous,” (2) the corresponding commentary is
“reasonable,” and (3) the “character and context of the agency
including any logical relationship and the firearm’s mere
potential to facilitate another felony offense. Id. (quoting
United States v. Loney, 219 F.3d 281, 284 (3d Cir. 2000)). A
relationship clearly existed here, as McIntosh broke into the
sporting goods store for the purpose of stealing the firearms,
and the possession of the firearm thus had the “potential of
facilitating” the felony. Id. (quoting United States v. Navarro,
476 F.3d 188, 197 (3d Cir. 2007)).
19
interpretation entitles it to controlling weight.” Nasir, 17 F.4th
at 471 (quoting Kisor, 588 U.S. at 574–76).
1. Ambiguity
According to McIntosh, the phrase “another felony
offense” as used in § 2K2.1(b)(6)(B) by its plain meaning
“requires a distinction in time or conduct” between the firearm
possession that resulted in conviction and the “felony offense”
justifying the sentencing enhancement. Opening Br. 35. But
that position finds support in neither the dictionary nor the case
law.
To the first, Black’s Law Dictionary defines the term
“offense” as synonymous with “crime,” which is “[a]n act that
the law makes punishable,”10 and Merriam-Webster defines
the term “another” as “different or distinct from the one first
considered.”11 That hardly clears things up. On the one hand,
considered under the test set out in Blockburger v. United
States, 284 U.S. 299 (1932), the “punishable” act of burglary
is “distinct” from the “punishable” act of possession because
each requires the Government to prove at least one element that
the other does not.12 And as the Fourth Circuit observed in
10
Offense, Black’s Law Dictionary (12th ed. 2024); Crime,
Black’s Law Dictionary (12th ed. 2024).
11
Another, Merriam-Webster Online Dictionary,
https://perma.cc/5UPK-54DB.
12
Although the Blockburger test arose in the double jeopardy
context—which is not relevant here—it provides a useful point
of reference in holding that when a defendant’s course of
conduct “constitutes a violation of two distinct statutory
20
United States v. Blount, because “the Blockburger test was
formulated for resolving . . . whether conduct by the defendant
should be regarded as constituting a single offense or multiple
distinct offenses,” it arguably “provides the appropriate
standard for determining whether a proffered enhancement
offense qualifies as ‘another felony offense.’” 337 F.3d 404,
408 (4th Cir. 2003). On the other hand, considered as a course
of conduct, McIntosh’s “act” of burglary was not necessarily
“different” from his “act” of possession. So dictionaries only
point up the term’s ambiguity.
Case law then confirms it. After all, Note 14 was added
to resolve a growing circuit split. See United States v. Keller,
666 F.3d 103, 107 (3d Cir. 2011). Some courts, including ours,
held that the phrase “another felony offense,” by its plain
meaning, required “a distinction in time or conduct from the
offense of conviction.” United States v. Fenton, 309 F.3d 825,
828 (3d Cir. 2002); see also United States v. McDonald, 165
F.3d 1032, 1037 (6th Cir. 1999); United States v. Szakacs, 212
F.3d 344, 348–52 (7th Cir. 2000). Other courts, presaging the
Fourth Circuit in Blount, read “another felony offense” by its
terms to include a separate felony offense, as long as it had
distinct elements. See, e.g., United States v. Luna, 165 F.3d
316, 323 (5th Cir. 1999); United States v. Kenney, 283 F.3d
934, 938 n.3 (8th Cir. 2002). Indeed, the Fenton panel itself
was split across these lines, with our esteemed colleague, Judge
Roth, explaining in dissent that the sentencing enhancement
was properly designed to account for the risk that “law
enforcement officers or an innocent bystander will be shot
provisions,” the defendant has committed two separate crimes
if “each provision requires proof of a fact which the other did
not.” Blockburger v. United States, 284 U.S. 299, 304 (1932).
21
when anyone, whether or not he is a felon, possesses a firearm
during the commission of a felony,” which is distinct from “the
harm that arises when a felon possesses firearms” in general.
Fenton, 309 F.3d at 829 (Roth, J., dissenting). And in deciding
to defer to the newly promulgated Note 14 in Keller, a
unanimous panel of this Court acknowledged that
§ 2K2.1(b)(6)’s use of “another felony offense” was indeed
“ambiguous,” and the commentary’s clarification in Note 14
was “entirely consistent with the plain language of the
guideline.” 666 F.3d at 109. We based our decision in part on
“[t]he breadth of opinion among appellate judges,” which
“suggests that the guideline is subject to different
interpretations.” Id.
To be sure, Keller does not “automatically retain its
controlling force” after Kisor, which raised the threshold for
finding “genuine ambiguity.” United States v. Adair, 38 F.4th
341, 349 (3d Cir. 2022). But the views of those judges, along
with colleagues on both sides of the circuit split, make clear
that the disputed language is “reasonably susceptible of
different interpretations”—the very definition of ambiguity.
Dobrek v. Phelan, 419 F.3d 259, 264 (3d Cir.2005) (quoting
Nat’l R.R. Passenger Corp. v. Atchinson Topeka & Santa Fe
Ry. Co., 470 U.S. 451, 473 n.27 (1985)); see United States v.
Perez, 5 F.4th 390, 396 (3d Cir. 2021) (taking note of a pre-
Kisor finding of ambiguity while analyzing a post-Kisor
challenge).13
13
McIntosh contends that the judicial doctrine known as the
“rule of lenity” is one of the “‘traditional tools’ of
construction,” Kisor, 588 U.S. at 575, that we must apply in
determining if a Guideline is genuinely ambiguous, and that,
22
2. Reasonableness
In siding with those circuits that used an elements test,
the Commission in Note 14(B) took a reasonable position. In
Note 14(B), the Commission essentially construes “another
felony offense” to mean conduct that would constitute a
different offense from the crime of conviction under the
familiar Blockburger test. Because felony firearm possession
and state law burglary each require the government to prove “a
fact which the other does not,” Blockburger, 284 U.S. at 304,
the two crimes can be reasonably viewed as “distinct”14—a
view reinforced by the Guideline’s use of the term “felony
offense,” which the commentary goes on to define as “any
federal, state, or local offense . . . punishable by imprisonment
for a term exceeding one year, regardless of whether or not a
criminal charge was brought, or conviction obtained,”
U.S.S.G. § 2K2.1 cmt. n.14(C). As the Fourth Circuit has
applying that rule here, it resolves any ambiguity in his favor
and forecloses resort to the commentary. In Chandler,
however, we observed that the “interpretative tools” referenced
in Kisor “do not typically imply resort to judicial doctrines,”
and we therefore rejected the argument that “when a guideline
is ambiguous, before deferring to the Sentencing
Commission’s commentary, we must first apply the rule of
lenity.” 104 F.4th at 456. Rather, we explained, “the next
analytical step called for by Kisor when a regulation is found
to be genuinely ambiguous is an inquiry into the agency’s
interpretation of the regulation, not an application of separate
judicial doctrines.” Id.
14
Another, Merriam-Webster Online Dictionary,
https://perma.cc/5UPK-54DB.
23
explained, “[t]his definition necessarily focuses on the
elements of the ‘felony offense,’” as one cannot determine
“whether conduct is ‘punishable by imprisonment for a term
exceeding one year’ except by ascertaining that such conduct
satisfies the elements of a particular crime.” Blount, 337 F.3d
at 407.
The Commission’s explanation for its interpretation—
“the potential that the presence of [a] firearm has for
facilitating another felony offense,” 71 Fed. Reg. at 28,071—
is also reasonable. McIntosh argues that “there was no
allegation that [he] possessed any firearms when he entered the
sporting goods store, nor was there any allegation that [he]
used the stolen firearms to commit any crimes after the theft.”
Opening Br. 48 (quoting Fenton, 309 F.3d at 827). But the
Commission added the enhancement not to punish a
perpetrator for additional crimes he committed while illegally
possessing a gun, but rather to reflect the fact that having
access to a firearm while committing another offense increases
the risk that the perpetrator will, for example, shoot someone
responding to a break-in. See United States v. Chandler, 104
F.4th 445, 452 (3d Cir. 2024) (explaining that the presence of
a gun “raises the temperature during a crime”). That is why
the firearm possession need not actually facilitate or cause the
second offense; “mere potential of facilitating the other felony
offense is sufficient.” United States v. Clark, 115 F.4th 245,
250 (3d Cir. 2024) (internal quotations and citation omitted).
As Judge Roth explained in her Fenton dissent, the baseline
sentence for the crime of felon-in-possession “does not fully
account for the additional risk addressed by
[§ 2K2.1(b)(6)(B)], that law enforcement officers or an
innocent bystander will be shot when anyone, whether or not
24
he is a felon, possesses a firearm during the commission of a
felony.” 309 F.3d at 829 (Roth, J., dissenting).
Finally, while no Court of Appeals has yet addressed
whether the Commission’s interpretation of “another felony
offense” is reasonable under Kisor’s framework, existing
precedent suggests that it is. Even before courts had the help
of Note 14(B), two of our sister circuits held that “another
felony offense” is best interpreted with reference to the
Blockburger test, see Blount, 337 F.3d at 407; United States v.
Valenzuela, 495 F.3d 1127, 1133 (9th Cir. 2007), and we had
incorporated aspects of the test into our own understanding of
the term, see United States v. Lloyd, 361 F.3d 197, 205 (3d Cir.
2004); United States v. Navarro, 476 F.3d 188, 196 (3d Cir.
2007), albeit in a manner that would not have allowed for the
enhancement in McIntosh’s case. Meanwhile, we are unable
to identify any precedential opinions holding that Note 14(B),
as least as it concerns the relationship between the offenses of
unlawful possession and burglary, is unreasonable. Rather,
what we see is a growing number of cases confirming that
Note 14(B) is consistent with the text of the Guideline. See,
e.g., Keller, 666 F.3d at 109; United States v. Morris, 562 F.3d
1131, 1135–36 (10th Cir. 2009); United States v. Hill, 563 F.3d
572, 582 (7th Cir. 2009); United States v. Stinson, 978 F.3d
824, 828 (1st Cir. 2020). Ultimately, all available evidence
suggests that Note 14(B) permissibly interprets “another felony
offense.”
3. Entitled to Controlling Weight
As with Note 2, McIntosh argues that Application Note
14(B) is not entitled to controlling weight because it neither
implicates the Commission’s substantive expertise nor reflects
25
its fair and considered judgment. This is not a winning
argument. As to substantive expertise, the Commission is well
positioned to opine on whether the presence of a gun increases
the risks associated with a felony like burglary and how those
risks should be punished. See Mercado, 81 F.4th at 360
(stating that the Commission has expertise concerning
“substantive sentencing concerns” and “how successive crimes
relate to one another”). And as to fair and considered
judgment, Note 14 is not a “convenient litigating position” or
a “post hoc rationalization,” nor does it “conflict” with a prior
interpretation. Kisor, 588 U.S. at 579 (citations omitted). As
before, we will defer.
IV. Conclusion
The Sentencing Guidelines help courts “produce
consistent, disciplined decisions and avoid excessive
sentencing disparities.” United States v. Douglas, 885 F.3d
124, 127 (3d Cir. 2018) (en banc). When the Sentencing
Commission elucidates the meaning of an ambiguous
Guidelines term in a reasonable manner, we cannot disregard
its input simply because we would have interpreted the
provision differently. Because the Commission did so here, we
will affirm.
26
MATEY, Circuit Judge, concurring in the judgment.
I agree that the District Court properly determined
McIntosh’s base offense level under U.S.S.G.
§ 2K2.1(a)(4)(B) and correctly applied a four-level sentencing
enhancement under U.S.S.G. § 2K2.1(b)(6)(B). But I see no
need to defer to the Sentencing Commission’s commentary to
the Guidelines. Neither the term “semiautomatic firearm that is
capable of accepting a large capacity magazine,”
§ 2K2.1(a)(4)(B), nor “another felony offense,”
§ 2K2.1(b)(6)(B), is “genuinely ambiguous,” Kisor v. Wilkie,
588 U.S. 558, 574 (2019). Rather, after “exhaust[ing] all the
‘traditional tools’ of construction,” id. at 575, “the best
interpretation” of the provisions at issue emerges, id. at 632
(Kavanaugh, J., concurring in the judgment). Because there is
“no need to adopt or defer to” any other interpretation, id., I
respectfully concur only in the judgment.
I.
We “treat the Sentencing Guidelines as legislative rules,
and the Sentencing Commission’s comments interpreting its
Guidelines as interpretative rules,” United States v. Banks, 55
F.4th 246, 255 (3d Cir. 2022), and therefore apply Kisor’s
framework to determine whether deference to the commentary
is needed to interpret a Guideline provision, id. at 255–56; see
also United States v. Nasir, 17 F.4th 459, 470–71 (3d Cir.
2021) (en banc).1 Careful consideration of both Guidelines’
1
Although we considered this question only a few years
ago, I am doubtful we should still rely on the commentary to
the advisory Guidelines. See Nasir, 17 F.4th at 471 (“[W]e may
have gone too far in affording deference to the guidelines’
commentary under the standard set forth in Stinson. Indeed,
1
“text, structure, history, and purpose” demonstrates that resort
to the commentary is unwarranted. Kisor, 588 U.S. at 575.
Section 2K2.1(a)(4)(B) applies to offenses involving a
“semiautomatic firearm that is capable of accepting a large
capacity magazine.” Large, as the majority explains, can
reasonably be read to mean “more than usual capacity or
scope” or “great numbers or quantities.” Majority Op. at 9. And
“[p]eople may disagree as to how many cartridges must fit into
a magazine to make it ‘large.’” United States v. Trumbull, 114
F.4th 1114, 1121 (9th Cir. 2024) (Bea, J., concurring in the
judgment). But this “disagreement does not constitute
ambiguity.” Id. Instead, we must “determine whether the
language at issue has a plain and unambiguous meaning with
regard to the particular dispute in the case.” Robinson v. Shell
Oil Co., 519 U.S. 337, 340 (1997); see also Cabeda v. Att’y
Gen., 971 F.3d 165, 186 (3d Cir. 2020) (Krause, J., concurring
in part and concurring in the judgment). Put differently, when
the language of the law is suitably firm, there is no need to
reach for additional meaning as “the discretionary space of the
public authority” has been fully occupied by the authoritative
text.2
after the Supreme Court’s recent decision in Kisor . . . it is clear
that such an interpretation is not warranted.”). Compare United
States v. Booker, 543 U.S. 220, 245 (2005) (“So modified, the
federal sentencing statute makes the Guidelines effectively
advisory.” (citation omitted)), with Stinson v. United States,
508 U.S. 36, 46 (1993) (“Amended commentary is binding on
the federal courts even though it is not reviewed by
Congress.”).
2
Adrian Vermeule, Common Good Constitutionalism
46 (2022). Of course, a “term may be ambiguous as applied to
2
Because no one disputes that the Ruger AR-556 that
McIntosh’s co-defendant stole is a semiautomatic firearm, the
only question is whether that rifle is capable of accepting a
large capacity magazine. Before the District Court, the parties
agreed that the rifle can accept magazines containing more than
fifteen rounds of ammunition. Indeed, the Ruger AR-556 is
capable of accepting magazines containing substantially more
than fifteen rounds, as AR-15 style rifles routinely accept
magazines containing one hundred or more rounds. See E.
Gregory Wallace, “Assault Weapon” Lethality, 88 Tenn. L.
Rev. 1, 27 (2020) (noting that the AR-15’s standard
thirty-round magazine can be replaced with “aftermarket
sixty-round and one hundred-round magazines available in box
and drum versions”).3 And because AR-15 style rifles “must
some situations, but not as applied to others.” Ass’n of Battery
Recyclers, Inc. v. U.S. Env’t Prot. Agency, 208 F.3d 1047, 1056
(D.C. Cir. 2000). But drilling down on the specific
interpretative question, as viewed “through the lens of the
precise dispute,” Cabeda, 971 F.3d at 189 (Krause, J.,
concurring in part and concurring in the judgment), is precisely
the type of “‘traditional tool[]’ of construction” that we “must
exhaust” “before concluding that a rule is genuinely
ambiguous,” Kisor, 588 U.S. at 575. And resorting to
deference based on a potential ambiguity not implicated in a
given case distorts Kisor, transforming it from “a canon of last
resort” into a mechanism for default deference.
3
AR-15 style rifles like the Ruger AR-556 are typically
sold with a standard magazine containing “twenty or thirty
rounds” of ammunition. David B. Kopel, The History of
Firearm Magazines and Magazine Prohibitions, 78 Alb. L.
Rev. 849, 859 (2015). But they are not limited to that size. See
United States v. Turner, 61 F.4th 866, 873 (11th Cir. 2023)
3
accommodate an external magazine,” James A. D’Cruz,
Half-Cocked: The Regulatory Framework of Short-Barrel
Firearms, 40 Harv. J.L. & Pub. Pol’y 493, 526 (2017), they are
“capable of accepting” magazines with virtually any capacity.4
At bottom, no matter which of the majority’s
contemplated definitions of “large” one adopts, the Ruger
AR-556 “unambiguously qualifies as a ‘semiautomatic firearm
that is capable of accepting a large capacity magazine.’”
Trumbull, 114 F.4th at 1122 (Bea, J., concurring in the
judgment) (quoting § 2K2.1(a)(4)(B)).5
(discussing an AR-15 loaded with fifty rounds of ammunition);
United States v. Gross, 44 F.4th 1298, 1300 (10th Cir.
2022) (discussing a forty-five round AR-15 magazine); United
States v. Marchena-Silvestre, 802 F.3d 196, 197 (1st Cir. 2015)
(discussing an AR-15 “loaded with one round in the chamber
and thirty-seven rounds in the magazine”).
4
Even if there was a genuine factual dispute, I would
follow the usual course and remand the case to the District
Court to determine the Ruger AR-556’s ability to accept
magazines of various sizes. See United States v. Haggerty, 107
F.4th 175, 190 (3d Cir. 2024).
5
The majority clips one of my prior phrases: the
“protean ‘large capacity magazine.’” See Majority Op. at 9
(discussing Ass’n of N.J. Rifle & Pistol Clubs Inc. v. Att’y Gen.,
No. 19-3142, 2022 WL 22860232, at *4 (3d Cir. Aug. 25,
2022) (Matey, J., dissenting)). I used that phrase to illustrate
two points.
First, the term “large capacity magazine” has no
objective meaning. N.J. Rifle, 2022 WL 22860232, at *4
(Matey, J., dissenting). That is true and irrelevant to this case
since we are not interpreting “large capacity magazine” in
4
isolation, but a “semiautomatic firearm that is capable of
accepting a large capacity magazine.” That inclusive language
easily sweeps in the firearm at issue here. So while there is no
such thing as a “large capacity magazine,” that does not matter
in this case, because whatever a large capacity magazine is, the
Commission has created a sentencing enhancement for
offenses involving a firearm capable of accepting one. Should
the Commission take more care to draft guidelines that are
consistent with our natural rights? Yes. Is section
2K2.1(a)(4)(B) likely an impermissible imposition on our
protections? Perhaps. But that does not render us incapable of
determining what qualifies for the enhancement.
Second, as I demonstrated, prohibitions on the
possession of “large capacity magazines” presumptively
violate the Second Amendment. Id. at *3–4 (discussing Ass’n
of N.J. Rifle & Pistol Clubs Inc. v. Att’y Gen., 974 F.3d 237,
250 (3d Cir. 2020) (Matey, J., dissenting), abrogated by N.Y.
State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022)). I
welcome the majority’s conclusion that the term “large
capacity magazine” has no meaning. While our agreement
makes no difference in today’s case, it matters much tomorrow.
So I reiterate my (now our) conclusion in full:
It is a regulatory term created by the State,
meaning no more than the maximum amount of
ammunition the State has decided may be loaded
into any firearm at one time. Sixteen rounds was
large yesterday, eleven rounds is large today.
The State is welcome to market its policy goals
using catchy slogans, but the rights of our
Republic are built on sturdier stuff. Stripping
away the buzzwords reveals the real question:
whether “the Second Amendment’s plain text”
5
II.
I likewise agree that the District Court correctly applied
a four-level enhancement to McIntosh’s sentence because he
“possessed [a] firearm . . . in connection with another felony
offense.” § 2K2.1(b)(6)(B). McIntosh argues that section
2K2.1(b)(6)(B) “requires a distinction in time or conduct”
between the conviction offense and the enhancement offense.
Opening Br. at 35. It does not.
Careful textual review obviates any first-blush
ambiguity in the phrase “another felony offense.” “Another”
means “[a]dditional,” and “[d]istinct or different.” Another,
Black’s Law Dictionary 91 (6th ed. 1990).6 A “felony,” of
protects possession of a firearm magazine, in
which case “the Constitution presumptively
protects that conduct.” Bruen, 597 U.S. at 17.
The only avenue around that presumption is
proof—presented by the State—that its cap on
magazine capacity “is part of the historical
tradition that delimits the outer bounds of the
right to keep and bear arms.” Id. at 19.
N.J. Rifle, 2022 WL 22860232, at *4 (Matey, J., dissenting)
(citations updated). The constitutionality of the enhancement
is not before us, nor is the continuing infringement on the
natural right to arms posed by chameleonic limitations on
rounds of ammunition. But those questions will arise and I will
welcome this renewed focus on vagueness and the Second
Amendment.
6
Accord Another, Webster’s New World Dictionary 57
(3d College ed. 1988) (defining “another” as “one more; an
additional”; “different; not the same”; or “one of the same sort
as; some other”).
6
course, is “[a] crime of a graver or more serious nature than
those designated as misdemeanors,” which, “[u]nder many
state statutes,” means “any offense punishable by death or
imprisonment for a term exceeding one year.” Felony, Black’s
Law Dictionary 617 (6th ed. 1990). And an “offense” is “[a]
felony or misdemeanor; a breach7 of the criminal laws; [or a]
violation of law for which penalty is prescribed.” Offense,
Black’s Law Dictionary 1081 (6th ed. 1990).8 Taken together,
the best ordinary meaning of “another felony offense” is a
“breach” or “violation” of the law that is distinct from the
firearms offense. Succinctly, “another felony offense” is a
distinct chargeable crime. Absent from the text is an additional
requirement that the second offense be distinct in time or
conduct from the underlying offense. The “text of the
Guideline[] is clear enough that we need not rely on the
commentary.” United States v. Merritt, 102 F.4th 375, 378 n.3
(6th Cir. 2024).9
7
“Breach” refers to “[t]he breaking or violating of a
law, right, obligation, engagement, or duty, either by
commission or omission.” Breach, Black’s Law Dictionary
188 (6th ed. 1990).
8
Accord Offense, Webster’s New World Dictionary 940
(3d College ed. 1988) (defining “offense” as “the act of
breaking a law; sin or crime; transgression”).
9
The majority concludes that section 2K2.1(b)(6)(B) is
genuinely ambiguous because of a pre-Kisor circuit split. See
United States v. Fenton, 309 F.3d 825, 827 (3d Cir. 2002);
United States v. McDonald, 165 F.3d 1032, 1037 (6th Cir.
1999); United States v. Szakacs, 212 F.3d 344, 350–51 (7th Cir.
2000). But “Kisor requires that we dig deeper” than the cases
that came before it. Reyes-Vargas v. Barr, 958 F.3d 1295, 1307
7
***
Because sections 2K2.1(a)(4)(B) and 2K2.1(b)(6)(B)
can be applied without reliance on the Sentencing
Commission’s commentary, I respectfully concur only in the
judgment.
(10th Cir. 2020). As a result, “prior caselaw that had afforded
Auer deference to the Commission’s interpretive commentary
without engaging in the Kisor process does not automatically
retain its controlling force.” United States v. Adair, 38 F.4th
341, 349 (3d Cir. 2022). And these “disagreements between
judges at most suggest ambiguity. They do not prove it.”
Sexton v. Panel Processing, Inc., 754 F.3d 332, 341 (6th Cir.
2014).
8