United States v. Aumbrey Winstead

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 2, 2018 Decided May 25, 2018

No. 12-3036

UNITED STATES OF AMERICA,

APPELLEE

v.

AUMBREY WINSTEAD, ALSO KNOWN AS ANDRE WINSTEAD,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cr-00242-1)

Lisa B. Wright, Assistant Federal Public Defender, argued

the cause for appellant. With her on the briefs was A.J. Kramer,

Federal Public Defender. Tony Axam Jr., Assistant Federal

Public Defender, entered an appearance.

David P. Saybolt, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Jessie K. Liu, U.S.

Attorney, and Elizabeth Trosman, Assistant U.S. Attorney.

Before: GARLAND, Chief Judge, and EDWARDS and

SILBERMAN, Senior Circuit Judges.

2

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

SILBERMAN, Senior Circuit Judge: This is a quite unusual

criminal case. Appellant Aumbrey Winstead challenges his

conviction for possession of a firearm (by a person convicted of

a crime punishable by imprisonment of more than one year),

possession with intent to distribute cocaine, and possession of a

firearm during a drug trafficking offense. His primary

evidentiary claim relates to the admission of evidence of prior

crimes, which he asserts were stale. Although we think he has

a point, it doesn’t matter because the evidence of guilt was

overwhelming. However, he also asserts that he received

ineffective assistance of counsel, both at trial and at sentencing.

Per our normal practice, we remand to the district judge the

issue of ineffective assistance at trial, but we conclude – as a

matter of law – that Appellant received ineffective assistance at

sentencing, and that his sentence as a career criminal was

improper. We therefore remand for new sentencing.

I. THE TRIAL

A.

The catalyst for the events leading to Winstead’s arrest was

a car accident. On May 15, 2011, Shervonne Murphy stopped

her car at a red light as she returned home from church with her

daughter and her boyfriend. Winstead was riding in another

vehicle – driven by a man named George – when it plowed into

Murphy’s car while she was stopped at the intersection. George

quickly offered Murphy $20,000 and attempted to prevent her

from calling the police, but she called 9-1-1. Fearing for her

safety after observing what she believed to be a gun under

Winstead’s shirt, and judging from his behavior that he was

3

“totally wasted,” she called 9-1-1 a second time and asked the

police to hurry. Before the police arrived, Murphy and her

boyfriend saw Winstead walk across the street and up a hill into

the woods, where he briefly disappeared from their sight. When

he returned shortly thereafter, the bulge under his shirt was

gone.

When the police arrived and decided that Winstead and

George were “acting very squirrelly,” the two were handcuffed

and seated next to each other on the curb. One officer

conducted a protective pat-down to search for weapons, and

testified that he felt a bulge and a wad of money in Winstead’s

cargo pocket, but he didn’t remove them. He noticed Winstead

nudge George with his leg and then nod to the wooded area

where he had previously disappeared. Suspicious of the

situation, the officer hid behind a nearby telephone box and

waited for his fellow officers and the two cars from the accident

to clear the scene. Sure enough, soon after the other policemen

left, George’s car returned, and the officer observed Winstead

jogging back toward the wooded area. The officer followed him

and hid in “a shadowy spot,” where he watched Winstead pace

back and forth “a couple of times as if he were looking for

something” and then proceed to bend over and “pick[] up a

shiny object,” which the officer believed to be a handgun.

Winstead then received a call on his cell phone and immediately

dropped the shiny object, lit a cigarette, and began to walk out

of the woods.

At this point, the hidden officer called for support from his

two colleagues, who returned in their squad cars and arrested

Winstead. He then walked from his hiding place to the location

where he had observed Winstead pick up and drop the shiny

object, and found two firearms. When Winstead was searched

incident to his arrest, police found money and 25 ziplock bags

4

of cocaine packaged inside a larger ziplock bag marked with an

apple emblem within his cargo pocket.

Winstead was taken to jail. During his stay, several

recorded phone calls were logged under his unique telephone

identification number. The caller – who identified himself as

“Brey” and whose voice was identified as Winstead’s by a

witness when the recording was played at trial – placed one call

to a woman Winstead had been seeing, Ms. Genai Johnson. He

complained that George should not claim that the caller owed

him anything: “You shouldn’t have crashed the m—f—in’ car

while we got s— in the car, man. I hid the m—f—in’ hammers

for you, n—.”1

Winstead chose to testify. He asserted that he went into the

woods after the car accident in order to relieve himself, and that

as he walked back to the car, George “grabbed something out of

the back of the trunk that was wrapped up, and then George

went into the woods.” Winstead claimed that after departing the

scene following the initial police interaction, he realized that he

had forgotten his cell phone, and returned to the area where he

had relieved himself to retrieve it. Winstead testified that no

drugs were found on his person during the search incident to his

arrest. When the recording of the discussion of hiding the

“hammers” was re-played during Winstead’s cross examination,

he denied that the caller’s voice was his.

1

A government witness testified that the term “hammers” is

commonly used as slang for guns. One of the two guns found by the

officers was a large black 9mm firearm with an extended magazine;

the other was a “shiny small” .22 caliber handgun.

5

Winstead also testified that he commonly stayed at Ms.

Johnson’s apartment, located at 1333 Savannah Street in

Southeast Washington. As it happened, the police executed a

search warrant at that apartment four days prior to the car

accident. Although Winstead had denied that it had been Ms.

Johnson’s voice on the prison phone call, he admitted that he

was present in her apartment during the search and that he

recognized some of the items found there. He denied

ownership, however, of other items the police found in the

apartment: a 9mm pistol, two ounces of PCP, vials used for PCP

distribution, and small ziplock bags and apple bags similar to

those allegedly found in his pocket on the night of the car

accident. When another jail phone call was played, which he

admitted was his voice, he was heard lamenting that “they ran

into Shorty’s house and took all of my s—.” He denied,

however, that Ms. Johnson was the “Shorty” in question, noting

that he had “other female friends,” but declining to say who was

on the phone. Nor did Winstead explain which seizure his

statement referred to, if not the Savannah Street search.

The prosecution introduced evidence of Winstead’s prior

crimes for impeachment and to prove knowledge and intent with

respect to his charges. He admitted to three previous

convictions. In 1998, he was convicted of attempted possession

with intent to distribute 23 ziplock bags of cocaine. In 2002, he

sold marijuana in a ziplock bag to an undercover officer,

resulting in a conviction for attempted distribution. And in

2004, he was caught with a 9mm pistol during a traffic stop and

was convicted of unlawful possession of a firearm by a person

previously convicted of a crime punishable by imprisonment for

a term exceeding one year, or “felon in possession.” Besides

Winstead’s admissions, the prosecution offered the testimony of

the policeman who discovered the pistol, as well as court

documents from the three cases.

6

The jury found Winstead guilty of three crimes: unlawful

possession of a firearm by a person convicted of a crime

punishable by imprisonment for a term exceeding one year,2

possession with intent to distribute cocaine,3 and possession of

a firearm during a drug trafficking offense.4

B.

Appellant’s primary complaint concerning the judge’s trial

rulings focused on the admission of his prior crimes.

Particularly in light of our deferential standard of review of a

district judge’s decision to admit such evidence under Federal

Rules 403 and 404(b) (abuse of discretion), two of his claims are

insubstantial. Winstead complains that the district judge – who

did give a limiting instruction to the jury with respect to the

prior crimes evidence – should have given it more than once.

But we have never so held.5 See United States v. McCarson,

527 F.3d 170, 174 (D.C. Cir. 2008). He also contends his prior

gun conviction was irrelevant to his drug crime. But the

government’s drug expert testified that the distribution of drugs

is a risky business – there are groups in the city who prey upon

and rob drug dealers. Drug dealers thus typically carry pistols

such as Winstead was convicted of possessing in 2004. In other

2

18 U.S.C. § 922(g)(1).

3

21 U.S.C. §§ 841(a)(1), 841(b)(1)(C).

4

18 U.S.C. § 924(c)(1).

5

Indeed, Winstead did not even request additional instructions

when the evidence was admitted. See United States v. Miller, 895

F.2d 1431, 1439 (D.C. Cir. 1990) (citing United States v. Lewis, 693

F.2d 189, 196 (D.C. Cir. 1982)).

7

words, a pistol is a tool of the trade, and its possession is

therefore probative of knowledge and intent. See United States

v. Cassell, 292 F.3d 788, 793 (D.C. Cir. 2002).

More troubling, however, is Appellant’s contention that

under our precedent, his past crimes are stale and, therefore, no

longer relevant. In that regard, we recently held that a ten-year-

old PCP conviction was too old to be used to establish

knowledge for a similar crime. United States v. Sheffield, 832

F.3d 296, 307-08 (D.C. Cir. 2016). The government would

distinguish Sheffield. It first points out that in Sheffield only the

fact of the prior crime was introduced, reducing its probative

value relative to its prejudicial effect. In this case, however, the

government introduced extensive evidence drawing a parallel

with Winstead’s later behavior. The 1998 conviction involved

ziplock bags of cocaine, which Winstead had confessed he

intended to distribute, and the pistol used in 2002 was of the

same caliber – 9 mm – as the larger firearm used in the instant

case. We suppose there may be something to this distinction,

but we are not sure which way it cuts. It is not clear to us that

the greater detail does not come with greater prejudice as well.

The government’s primary ground offered to distinguish

Sheffield – drawing upon a notion several courts have accepted,

see United States v. Cherry, 433 F.3d 698, 702 & n.4 (10th Cir.

2005); United States v. Brooks, 736 F.3d 921, 940 (10th Cir.

2013); United States v. Sterling, 738 F.3d 228, 238-39 (11th Cir.

2013); United States v. Halk, 634 F.3d 482, 487-88 (8th Cir.

2011) – is that the staleness of old crimes is lessened if part of

the time between the defendant’s old crime and a new case was

spent in prison. Although our sister circuits do not explain their

reasoning, we think that they are assuming that conversations in

prison would refresh a prisoner’s knowledge of the modus

8

operandi of drug crimes.6 We are not sure that is a legitimate

assumption in every case.

Be that as it may, we have no need to decide this question

today. Regardless of whether the prior convictions were too

stale for admission – such that their probative value was

substantially outweighed by their prejudicial effect under Rule

403 – overwhelming evidence of Winstead’s guilt was presented

in this case. Jurors heard testimony from two civilian witnesses

who observed a bulge under Winstead’s clothes that was gone

when he returned from the woods. They heard testimony from

a policeman who followed Winstead when he went back into the

woods to retrieve the guns, and found them there. They heard

testimony from other officers who found the baggies on his

person after arresting him, and saw the test results confirming

that the baggies contained cocaine. They heard the recordings

of Winstead’s jail phone calls in which he admitted that he hid

the “hammers” for George and discussed the Savannah Street

search. They examined properly admitted evidence from that

search, including a firearm, clothing that he admitted to

recognizing, suspected PCP, and plastic packaging baggies that

were almost identical to the ones found on his person only four

6

If past crimes could be shown to demonstrate a propensity to

commit the same crime, it could be argued that a long stretch in prison

is not commensurable with a period of criminal inactivity in society,

because the individual lacked the opportunity to recidivate while in

prison. But this is, of course, precisely the type of inquiry that Rule

404(b) forecloses. Nevertheless, some courts appear to hint at this

alternative logic. See United States v. Cherry, 433 F.3d 698, 702 n.4

(10th Cir. 2005).

9

days later.7 And when Winstead chose to take the stand, the

jurors heard him use his voice to deny, under oath, that the

recording of his voice actually contained his voice. We

therefore hold that any error – if it was – in admitting the prior

crimes evidence was harmless. See Sheffield, 832 F.3d at 309.

II. THE SENTENCE

A.

The government requested a sentence of 360 months, the

bottom end of what it described as the applicable guideline

range of 360 months to life imprisonment. This was calculated

pursuant to United States Sentencing Guideline § 4B1.1(c), and

– most important – was based on a determination that

Winstead’s past convictions render him a career offender under

§ 4B1.1(a). As a career offender convicted of 18 U.S.C.

§ 924(c), his guideline range must be calculated using the Career

Offender Table in § 4B1.1(c)(3).8

7

Winstead also argues that the admission of the Savannah Street

evidence – which he claims occurred only as a result of ineffective

assistance of counsel – was prejudicial. We address the ineffective

assistance of counsel claims below, but we note here that even without

the Savannah Street evidence, we would find any error with respect to

the previous three convictions harmless in light of the significant

evidence against him.

8

Because Winstead was convicted of other crimes in addition to

the § 924(c) offense, § 4B1.1(c)(2) dictates a guideline range

calculated as "the greater of" two alternatives: either adding together

the separate sentences for his offenses, or utilizing the Career Offender

Table in § 4B1.1(c)(3). In Winstead’s case, the latter – assigning a

range of 360 months to life – was greater.

10

It’s not as if the prior convictions were Appellant’s only

blemishes. The government noted in its sentencing

memorandum that Winstead, within one year of his release from

serving time for his third prior conviction, was arrested for

distributing marijuana on September 14, 2010. The government,

however, declined prosecution. Two weeks later, on September

28, 2010, he was arrested for felony possession of a vial of PCP.

However, the charges were dismissed because a chemist at the

Drug Enforcement Agency failed to follow the appropriate

chain-of-custody procedures. And before that case had even

been dismissed, Winstead was arrested in December of 2011 for

distribution of heroin, but prosecutors did not bring a case.9

Finally, the government noted that a judge found probable cause

for the Savannah Street search warrant based on evidence

implicating Winstead as a suspect in the March 2011 murder of

a prostitute in Southeast Washington, approximately two months

before the car accident in this case.

Still, whatever his history, once Appellant was adjudged a

career criminal, the guideline range for his sentence jumped

from 211-248 months to 360 months-life. In other words, that

designation added approximately 10 years to Appellant’s

sentence. Accordingly, the district judge, describing Winstead

as a career offender, sentenced him to 360 months.

9

The government explained that “[a]n undercover officer

observed [Winstead] engage in a hand-to-hand transaction with a

second individual in which [Winstead] exchanged a small object for

currency. The police stopped the second individual, who was holding

a ziplock of heroin, and then stopped [Winstead].” However, because

the police found only cash on Winstead’s person, but no additional

heroin, the United States Attorney’s Office did not prosecute him.

11

Unfortunately, Winstead’s counsel did not put up much

opposition at the sentencing hearing. While he did object that

the guideline was “excessive” given the small quantity of drugs

involved and the fact that Winstead did not brandish the guns in

question or engage in violence, counsel’s primary objection was

that the statutory enhancement under 21 U.S.C. § 851 might not

apply, given that only 2.5 grams of drugs were involved. This

argument was irrelevant, however, because Winstead’s range

was ultimately based on the Career Offender Table in

§ 4B1.1(c)(3) rather than on the statutory enhancement that

counsel cited. See USSG § 4B1.1(c)(2).

Following this brief attempt to mitigate the sentence,

Winstead’s counsel proceeded to address the court with

“cand[or]”:

I could not find a factual basis to argue with any hope

of persuasion to a court that a variance from the

guideline range was appropriate. I couldn’t find it,

Your Honor, not in these facts, not in my client’s

background. It’s not there. I was not going to ask for

it. My client is resigned to his fate. . . . I can only be

candid with this court. I know this court’s feeling

about certain types of behavior very well. . . .

I think the bottom of the calculated guideline range,

Your Honor, as the government indicates, is a

homicide sentence, is 30 years. It’s a first-degree

murder sentence. . . . I wish I had a basis to argue to the

Court there was something in my client’s history to

suggest that something less than 30 years would

constitute – bottom of the guidelines would constitute

just punishment.

12

My hands are tied, Your Honor. I cannot. I’ve

explained that to my client, and he fully expects at least

a 30-year sentence to be imposed by this court. He

expects that.

B.

The most powerful argument challenging Appellant’s

sentence is the textual one: that attempted drug offenses, which

caused his career criminal status, are not included in the

guidelines. Instead, attempts are only added in the commentary

to the guidelines. But – and it is a big “but” – this issue was not

raised below. Therefore, our normal standard of review is plain

error. And that standard can not possibly be met since this very

issue has been decided against Appellant in several other

circuits. United States v. (Norman) Williams, 350 F.3d 128, 130

(D.C. Cir. 2003). There remains, however, the question how

this textual issue appears to us in the context of Appellant’s final

argument – that he was disadvantaged because of ineffective

assistance of counsel.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

A. Pre-Trial and Trial

Appellant raises a number of arguments supporting his

claim that his counsel’s representation before and during trial

was inadequate. The government’s response is that the case

against Winstead was overwhelming and, therefore, he was not

prejudiced.

Ironically, the very strength of the government’s case makes

the decision to go to trial rather than accept a plea rather

13

puzzling.10 Appellant claims that he was not effectively

represented in plea negotiations. The record is quite sketchy

regarding plea discussions, so in accordance with our normal

practice when we cannot definitely reject an ineffective

assistance of counsel claim, United States v. Rashad, 331 F.3d

908, 912 (D.C. Cir. 2003), we will remand the trial issues to the

district judge.

B. Sentencing

Appellant makes a number of arguments concerning his

counsel’s mistakes at sentencing, including his failure to ask for

a downward variance (we certainly have the impression from the

dialogue that we set forth above that counsel didn’t have his

heart in a claim for more lenient treatment). But by far the most

damaging error the counsel made, according to Appellant, was

not to raise the textual argument referred to above: that his

previous crimes which were counted to make him a career

criminal – “attempted” distribution of, and “attempted”

possession with intent to distribute, drugs – are listed in the

commentary to the guidelines but not in the guidelines

themselves. Although, as we noted, at least five circuits have

held the commentary a legitimate interpretation of the

guidelines, we had not decided the issue, and the 8th Circuit en

banc opinion was accompanied by a strong dissent.11 United

10

Even with no plea offer, acceptance of responsibility alone

would have reduced Appellant’s sentence significantly.

11

While Mendoza-Figueroa focused on the underlying statutory

dispute that we addressed in United States v. Price, 990 F.2d 1367

(D.C. Cir. 1993), see infra note 13, the dissent stressed that “Note 1

could not support the defendant’s sentence as a career offender”

because it was not supported by the statutory text in which it was

14

States v. Mendoza-Figueroa, 65 F.3d 691, 694-98 (8th Cir.

1995) (en banc) (Gibson, J., dissenting).

Therefore, in the absence of an objection, Winstead’s 30-

year sentence was calculated pursuant to United States

Sentencing Guideline § 4B1.1(c), based on a determination that

he is a career offender under § 4B1.1(a). That guideline confers

career offender status on persons with two prior felony

convictions of “either a crime of violence or a controlled

substance offense.” USSG § 4B1.1(a)(3). In Winstead’s case,

the district judge determined that his two previous drug crimes

were controlled substance offenses (the gun possession does not

qualify as a crime of violence).

According to the commentary to that guideline, the term

“controlled substance offense” is “defined in § 4B1.2.” USSG

§ 4B1.1, Application Note 1. And that guideline – which,

Winstead points out, is titled “Definitions of Terms used in

Section 4B1.1” – states as follows:

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, export, distribution,

or dispensing of a controlled substance (or counterfeit

substance) or the possession of a controlled substance

(or a counterfeit substance) with intent to manufacture,

import, export, distribute, or dispense.

USSG § 4B1.2(b) (emphasis added).

grounded. 65 F.3d at 697.

15

As is apparent, neither the crime of attempting to distribute

drugs nor attempted possession with intent to distribute drugs is

included in the guideline list. The commentary to § 4B1.2,

however, states that “‘controlled substance offense’ include[s]

the offenses of aiding and abetting, conspiring, and attempting

to commit such offenses.” Id., Application Note 1 (emphasis

added). Winstead argues that this commentary cannot be

squared with the guideline – and that neither of his two previous

drug crimes falls within the definition of “controlled substance

offense,” because each conviction was for mere attempt.

Bearing in mind the enormous difference in Appellant’s

potential term of imprisonment if sentenced as a career criminal

(over ten years), it is hard to see how this issue should not have

appeared as a crucial one to effective counsel. After all, the

merits case against his client was formidable. But to make out

a claim of ineffective assistance of counsel under Strickland v.

Washington, 466 U.S. 668 (1984), an appellant must show both

that the errors were serious – which should be obvious in this

case – and that there is, at least, a reasonable probability that the

result of the proceeding would have been different. Id. at 687;

see also U.S. v. Abney, 812 F.3d 1079, 1086-95 (D.C. Cir.

2016).

We recognize that the Guidelines are only discretionary.

However, the Supreme Court “has made clear that the

Guidelines are to be the sentencing court’s ‘starting point and

. . . initial benchmark.’” Molina-Martinez v. United States, 136

S.Ct. 1338, 1345 (2016) (quoting Gall v. United States, 552 U.S.

38, 49 (2007)). “The Guidelines inform and instruct the district

court’s determination of an appropriate sentence. In the usual

case, then, the systemic function of the selected Guidelines

range will affect the sentence.” Id. at 1346.

16

As we noted, counsel’s failure to raise this obvious legal

argument below means our standard of review is plain error, and

we would not reverse the district court’s decision on the

guidelines issue under that standard. But since we think it was

a mistake for counsel not to raise this issue – a serious mistake

– under Strickland we must further ask whether raising the

argument below would have changed the result. And that

necessarily leads us to ask whether it was a winning argument,

which, of course, goes to the merits of the issue.

To be sure, we would normally remand serious claims of

ineffective assistance to the district judge to determine whether

effective counsel could have changed the result, as we are doing

with the pre-trial and trial issues. But this is an unusual case.

The textual issue is a purely legal question. And, as we have

explained, it was an obvious legal argument to make (at the

least, to preserve for appeal). If accepted, it would make an

enormous difference to Appellant’s sentence. And there was no

conceivable tactical reason (which we would generally be

reluctant to second-guess) for not making it. Indeed, in light of

the overwhelming evidence of guilt, it was the only serious

argument the defendant had in the entire case. There thus would

have been no reason to prioritize some other argument and, in

fact, defense counsel made no other serious argument.

We therefore pass on to consider the merits of Appellant’s

claim not by the deferential plain error standard that would

ordinarily govern an issue not raised below, but rather de novo.

In other words, in order to determine whether counsel’s failure

to raise the textual issue was ineffective assistance of counsel –

since the textual issue itself is a pure question of law – we must

treat the issue as if it had been raised below.

17

* * *

Turning to the merits, there is no question that as Appellant

points out, the commentary adds a crime, “attempted

distribution,” that is not included in the guideline. To be sure,

the Supreme Court in Stinson v. United States, 508 U.S. 36

(1993) held that the commentary should “be treated as an

agency’s interpretation of its own legislative rule.” 508 U.S. at

44-45 (citing Bowles v. Seminole Rock & Sand Co., 325 U.S.

410, 414 (1945)). Thus, under this Seminole Rock deference,

“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 38. If the

two are inconsistent, “the Sentencing Reform Act itself

commands compliance with the guideline.” Id. at 43 (citing 18

U.S.C. § 3553(a)(4), (b)).

Appellant argues that they are indeed inconsistent. By

purporting to add attempted offenses to the clear textual

definition – rather than interpret or explain the ones already

there – he contends that the commentary in Application Note 1

exceeds its authority under Stinson. For support, he points to

our decision in United States v. Price, 990 F.2d 1367 (D.C. Cir.

1993), which reversed a career offender sentence in similar

circumstances because the commentary impermissibly purported

to expand the scope of a penalty to include conspiracy to violate

substantive drug provisions. He also notes that our decision in

United States v. Alexander, 331 F.3d 116 (D.C. Cir. 2003) –

which held that the term “serious drug offense” in the Armed

Criminal Career Act includes attempts – relied heavily on the

presence of the word “involving” in the statutory definition,

which has “expansive connotations,” id. at 131. Section 4B1.2,

by contrast, includes no such broad language. Finally, he calls

18

our attention to the Supreme Court’s decision in James v. United

States, 550 U.S. 192 (2007), which held that the Armed

Criminal Career Act’s definition of “violent felony” did not

encompass attempted burglary simply by including the

completed offense of burglary. According to Winstead, the

analogy to James is direct: “‘Attempted distribution’ is not

‘distribution’ any more than ‘attempted burglary’ is ‘burglary.’”

Br. App. 38.

In response, the government leans on the decisions of

several of our sister circuits, each of which defer to Application

Note 1 when applying § 4B1.2. See United States v. Lange, 862

F.3d 1290, 1294 (11th Cir. 2017); United States v. Nieves-

Borrero, 856 F.3d 5, 9 (1st Cir. 2017); United States v. Solomon,

592 F. App’x 359, 361 (6th Cir. 2014); United States v. Chavez,

660 F.3d 1215, 1228 (10th Cir. 2011); United States v.

Mendoza-Figueroa, 65 F.3d 691 (8th Cir. 1995) (en banc).

We agree with Winstead. Section 4B1.2(b) presents a very

detailed “definition” of controlled substance offense that clearly

excludes inchoate offenses. Expressio unius est exclusio

alterius. Indeed, that venerable canon applies doubly here: the

Commission showed within § 4B1.2 itself that it knows how to

include attempted offenses when it intends to do so. See USSG

§ 4B1.2(a)(1) (defining a “crime of violence” as an offense that

“has as an element the use, attempted use, or threatened use of

physical force . . . .”).12

12

To be clear, our holding does not invalidate Application Note

1’s guidance with respect to whether a “crime of violence” includes

the offenses in that Note. We address only the scope of the definition

of “controlled substance offense.” We also note that given this

holding, we have no need to reach Winstead’s alternative argument

19

It might be argued that other federal laws do include

“attempted transfer” in defining drug distribution offenses – and

that we should read the guidelines in pari materia with these

other statutes in order to better discern their meaning. See, e.g.,

21 U.S.C. § 802(8), (11). However, in Burgess v. United States,

553 U.S. 122 (2008), the Supreme Court made clear that “[a]s

a rule, [a] definition which declares what a term ‘means’ . . .

excludes any meaning that is not stated,” id. at 130 (citation

omitted), and that the statute in that case “defines the precise

phrase used” in determining whether to apply a sentencing

enhancement. Id. at 129. Moreover, we interpret the specific

inclusion of attempt offenses elsewhere in federal drug law just

as we do the inclusion of attempt in § 4B1.2’s definition of

“crime of violence”: when enumerating a list of specific

offenses that qualify to support career offender status, the

drafters declined to include attempt despite its presence

elsewhere.

In this respect, the government’s failure to even address

Winstead’s textual arguments, and its near-exclusive reliance on

cases from outside this circuit which generally do the same, is

reminiscent of United States v. Glover, 736 F.3d 509 (D.C. Cir.

2013), cited with approval in Dahda v. United States, 584 U.S.

___ (2018). There, we found plain error where sister circuit

decisions ran “contrary to the plain text of the statute,” id. at

513, and considered “the government’s reluctance to come to

grips with the language . . . quite revealing.” Id. at 516. So, too,

here.

that the D.C. statute under which he was convicted for attempted

distribution of marijuana fails categorical analysis under Descamps v.

United States, 133 S. Ct. 2276, 2283 (2013). Nor need we reach

Winstead’s other claims demanding resentencing.

20

This is all the more troubling given that the Sentencing

Commission wields the authority to dispense “significant,

legally binding prescriptions governing application of

governmental power against private individuals – indeed,

application of the ultimate governmental power, short of capital

punishment.” Mistretta v. U.S., 488 U.S. 361, 413 (1989)

(Scalia, J., dissenting). If 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. See Stinson,

508 U.S. at 44. But surely Seminole Rock deference does not

extend so far as to allow it to invoke its general interpretive

authority via commentary – as it did following our decision in

Price13 – to impose such a massive impact on a defendant with

no grounding in the guidelines themselves.14 We therefore

13

In Price, we rejected the inclusion of conspiracy as a controlled

substance offense because the Commission stated in its commentary

that it had promulgated §§ 4B1.1 and 4B1.2 based on Congress’

command in 28 U.S.C. § 994(h). Since that statute included only

substantive offenses, but neither conspiracy nor attempt, we

invalidated Application Note 1’s inclusion of inchoate offenses as

controlled substance offenses. In response to that ruling, the

Commission modified its commentary to claim that Application Note

1 was based more broadly upon its understanding of its “general

statutory authority.” United States v. Seals, 130 F.3d 451, 463 (D.C.

Cir. 1998).

14

The dissent in Mendoza-Figueroa relied in part on the rule of

lenity, which favors a defendant if a criminal statute is ambiguous.

We do not think it necessary to rely on it because we do not believe

the guidelines are ambiguous. In any event, it is not obvious how the

rule of lenity is squared with Stinson’s description of the

commentary’s authority to interpret guidelines. We are inclined to

21

remand the case for resentencing consistent with this opinion

and factual resolution of Winstead’s trial-related claims of

ineffective assistance of counsel.

So ordered.

believe that the rule of lenity still has some force.