United States v. Antoinette Adair

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 20-1463

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UNITED STATES OF AMERICA

v.

ANTOINETTE ADAIR,

Appellant

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On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2:16-cr-00259-001)

District Judge: Honorable Mark R. Hornak

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Argued: April 28, 2021

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Before: SMITH, Chief Judge,* PHIPPS, and ROTH, Circuit

Judges.

(Filed: June 30, 2022)

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*

Judge Smith was Chief Judge when this appeal was argued.

Judge Smith completed his term as Chief Judge and assumed

senior status on December 4, 2021.

Donovan J. Cocas [ARGUED]

Laura S. Irwin

UNITED STATES ATTORNEY’S OFFICE

WESTERN DISTRICT OF PENNSYLVANIA

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Counsel for United States of America

Julie A. McGrain [ARGUED]

OFFICE OF FEDERAL PUBLIC DEFENDER

DISTRICT OF NEW JERSEY

800-840 Cooper Street, Suite 350

Camden, NJ 08102

Counsel for Antoinette Adair

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OPINION OF THE COURT

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PHIPPS, Circuit Judge.

For several years, Antoinette Adair pushed pills in

Pittsburgh. She was arrested and later pleaded guilty to a ten-

count indictment for her role in illegally distributing

prescription painkillers. In calculating Adair’s sentence, the

District Court increased her offense level by four points for

being an organizer or leader of extensive criminal activity. See

U.S.S.G. § 3B1.1(a). And although Adair timely pleaded

guilty, the government did not move for a one-point reduction

for acceptance of responsibility. See id. § 3E1.1(b).

Accounting for those and other sentencing factors, the District

Court calculated the range for Adair’s imprisonment under the

Sentencing Guidelines as between 188 and 235 months. The

District Court then granted a downward variance so that Adair

received a 168-month prison term for the longest of her

concurrent sentences.

2

In this appeal, Adair disputes the initial Guidelines range

for her imprisonment. She argues that the District Court erred

by applying a four-point increase for the organizer-leader

enhancement. She also contends that the District Court should

have compelled the government to move for a one-point

reduction for acceptance of responsibility. For the reasons

below, we will affirm the District Court’s judgment of

sentence.

BACKGROUND

Adair gained access to prescription opiate pills as a

treatment for back pain. A physician prescribed her 300 opioid

pills per month (240 oxycodone and 60 oxymorphone), and she

became addicted.

Despite her addiction, Adair recognized that a broader

market existed for prescription pills. She convinced her

mother and her sister to obtain opiate painkillers from the same

physician. After that doctor pleaded guilty to illegally

distributing controlled substances in 2012, Adair found other

physicians who would overprescribe opioid pills.

For the next several years, Adair participated in and

coordinated transactions for prescription pills. At one point,

she had twelve people in her network of suppliers who would

obtain prescriptions and acquire opioid pills. Adair

coordinated the distribution and sale of those pills to addicts,

including herself, as well as to a drug dealer who oversaw a

much larger pill-distribution network. She decided when and

where sales would occur, and she had oversight over her

suppliers, referring to some of them as her sons. She also made

drug deliveries herself, occasionally with one of her buyers

serving as a chauffeur and bodyguard.

Adair was also adept at responding to the vicissitudes of the

prescription-pill black market. With respect to the drug dealer

who oversaw a larger pill network, she would, when necessary,

front him pills or provide extra pills for free when he could not

3

afford to purchase her full supply. When he needed a new gun,

she offered to find him one. Adair also demonstrated

responsiveness and flexibility with her addict clients. She

would arrange for them to buy from other drug dealers when

she had no pills for them. Similarly, she advised one of her

suppliers on whether to report a gun offered as collateral for

drugs as stolen. But she accommodated only so much: on one

occasion, Adair threatened and pointed a gun at a confidential

informant for shorting her the amount owed for pills.

After her arrest in December 2016, Adair’s pill-distribution

operation came to an end. In January 2018, she pleaded guilty

to a ten-count indictment for violating multiple federal statutes:

18 U.S.C. § 1347 (health care fraud); 21 U.S.C. § 841(a)(1)

(possession with intent to distribute a controlled substance); id.

§ 841(b)(1)(C) (possession with intent to distribute

oxymorphone and oxycodone); id. § 846 (conspiracy to

distribute oxycodone and oxymorphone). See 18 U.S.C.

§ 3231 (conferring jurisdiction to the district courts in cases

involving “offenses against the laws of the United States”).

She did so without entering into a plea agreement with the

government, and they disagreed over several aspects of her

sentence calculation.

After briefing and a two-day hearing, the District Court

fixed the Guidelines range for Adair between 188 and 235

months’ imprisonment. That calculation included a four-point

increase in the offense level for the organizer-leader

enhancement. See U.S.S.G. § 3B1.1(a). Also, although the

District Court subtracted two points from Adair’s offense level

for her acceptance of responsibility, see id. § 3E1.1(a), the

government did not move for a third-point acceptance-of-

responsibility reduction for her timely notice of her guilty plea,

see id. § 3E1.1(b).

Ultimately, the District Court varied downward from that

Guidelines range. Due to her personal opioid addiction and

post-plea rehabilitation, the District Court sentenced her to 168

4

months’ imprisonment. Adair timely appealed that sentence,

bringing this matter within this Court’s appellate jurisdiction.

See 28 U.S.C. § 1291; see also 18 U.S.C. § 3742(a); United

States v. Bell, 947 F.3d 49, 53 (3d Cir. 2020).

DISCUSSION

Adair disputes the District Court’s calculation of her

Guidelines range on two grounds. She argues first that the

District Court miscalculated that range by increasing her

offense level by four points for being an organizer or leader of

extensive criminal activity under Guideline § 3B1.1(a). Next,

she contends that the District Court erred by not compelling the

government to move for a third-point reduction for acceptance

of responsibility under Guideline § 3E1.1(b) after she provided

timely notice of her intention to plead guilty. For the reasons

below, neither challenge succeeds.

I. The Organizer-Leader Enhancement in

Guideline § 3B1.1(a)

The application of the organizer-leader enhancement

hinges upon the meaning of the terms ‘organizer’ and ‘leader’

as used in Guideline § 3B1.1. Because the United States

Sentencing Commission has interpreted these terms in its

commentary, the weight afforded to that commentary may

affect the meaning of those terms. Those legal issues receive

de novo review. See United States v. Nasir, 17 F.4th 459, 468

(3d Cir. 2021) (en banc). Review of the District Court’s factual

findings in support of the organizer-leader enhancement

proceeds under the clear error standard because Adair

preserved this challenge. See United States v. Huynh, 884 F.3d

160, 165 (3d Cir. 2018).

A. The Stinson Paradigm and Auer Deference

The Supreme Court has established a general paradigm for

the relationship between the Sentencing Guidelines and the

Commission’s interpretive commentary. Under that paradigm,

formulated in Stinson v. United States, 508 U.S. 36 (1993),

5

Guidelines drafted by the Commission are treated as legislative

rules,1 and the Commission’s comments interpreting the

Guidelines are viewed as interpretive rules.2 The paradigm

applies only to the Commission’s interpretive commentary, not

its commentary related to either background information or

circumstances that may warrant a departure from a guideline.

Compare id. (applying the paradigm only to interpretive

commentary), with U.S.S.G. § 1B1.7 (describing three

different types of commentary to the Guidelines).

1

The term ‘legislative rule’ generally refers to an agency rule

promulgated through formal or informal (notice-and-

comment) rulemaking, although certain subject-matter

exceptions exist. See 5 U.S.C. § 556–57 (setting forth

procedures for formal rulemaking); id. § 553(c) (establishing

procedures for informal rulemaking); see also id. § 553(a)(1)–

(2) (allowing for rules on certain topics without the need for

formal or informal rulemaking). In Stinson, the Supreme Court

recognized that Sentencing Guidelines could be analogized to

legislative rules because both are promulgated “by virtue of an

express congressional delegation of authority for rulemaking

. . . and through the informal rulemaking procedures.” Stinson,

508 U.S. at 44–45.

2

To qualify as an interpretive rule, a rule must “derive a

proposition from an existing document whose meaning

compels or logically justifies the proposition.” Cath. Health

Initiatives v. Sebelius, 617 F.3d 490 (D.C. Cir. 2010) (quoting

Robert A. Anthony, “Interpretive” Rules, “Legislative” Rules,

and “Spurious” Rules: Lifting the Smog, 8 Admin. L.J. Am. U.

1, 6 n.21 (1994)); see also 5 U.S.C. § 553(b)(3)(A) (exempting

interpretive rules from the rulemaking procedures). After

considering the “functional purpose of [the] commentary,” the

Supreme Court determined that the Commission’s interpretive

commentary of the Guidelines operated much like an agency’s

interpretive rule for its own legislative rules. Stinson, 508 U.S.

at 45.

6

The Stinson paradigm provides only half of the framework

for analyzing the Commission’s interpretive commentary; the

other half requires determining the weight that such

commentary should receive. When the Supreme Court decided

Stinson, an agency’s interpretation of its own legislative rule

received Seminole Rock deference, later known as Auer

deference. See Bowles v. Seminole Rock & Sand Co., 325 U.S.

410 (1945); Auer v. Robbins, 519 U.S. 452 (1997). Such

deference gave controlling weight to an agency’s interpretation

of its own regulation unless the interpretation was “plainly

erroneous or inconsistent with the regulation.” Stinson,

508 U.S. at 45 (quoting Seminole Rock, 325 U.S. at 414); see

also Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 110 (2015)

(Scalia, J., concurring in judgment) (“Interpretive rules that

command deference do have the force of law.”). Thus, the

application of Auer deference within the Stinson paradigm

required courts to defer to the Commission’s commentary for

a Guideline unless that interpretation was plainly erroneous or

inconsistent with the Guideline. See Stinson, 508 U.S. at 47;

see also U.S.S.G. § 1B1.7, Commentary.

Although the Stinson paradigm has not changed, the

Supreme Court reprised Auer deference in Kisor v. Wilkie,

139 S. Ct. 2400 (2019). That decision made clear that for Auer

deference to apply, “a court must exhaust all the ‘traditional

tools’ of construction,” id. at 2415 (quoting Chevron U.S.A.

Inc. v. Nat. Res. Def. Council Inc., 467 U.S. 837, 843 n.9

(1984)), and determine that the regulation is “genuinely

ambiguous,” id. at 2414. Under this approach, a court must

consider the “text, structure, history, and purpose of a

regulation, in all the ways it would if it had no agency to fall

back on.” Id. at 2415.

Kisor did more than render Auer deference “a doctrine of

desperation.” INS v. Cardoza-Fonseca, 480 U.S. 421, 454

(1987) (Scalia, J., concurring in the judgment) (opining that

Chevron deference should not be “a doctrine of desperation”).

In addition, before affording controlling deference to an

7

agency’s interpretation of a genuinely ambiguous regulation, a

court must make an “independent inquiry” into the “character

and context” of the reasonable interpretations of the regulation,

i.e., those within the “zone of ambiguity.” Kisor, 139 S. Ct. at

2416. As guideposts, the Supreme Court identified three

character-and-context circumstances in which an agency’s

otherwise reasonable interpretation should not receive

controlling weight. See id. at 2416–17. Those occur when an

agency’s interpretation is not its “‘authoritative’ or ‘official

position,’” id. (quoting United States v. Mead Corp., 553 U.S.

218, 257 (2001) (Scalia, J., dissenting)), when the agency’s

interpretation does not implicate its “substantive expertise” in

some way, id. at 2417, and when the agency’s reading does not

reflect its “fair and considered judgment” but rather is a

“convenient litigating position,” a “post hoc rationalization,”

id. (quoting Christopher v. SmithKline Beecham Corp.,

567 U.S. 142, 155 (2012) (alteration omitted)), or a parroting

of a federal statute, see id. at 2417 n.5 (citing Gonzales v.

Oregon, 546 U.S. 243, 257 (2006)). In sum, under Kisor, a

genuine ambiguity in an agency’s regulation is necessary for

Auer deference, but it is not sufficient: the character and

context of an agency interpretation that falls within the

regulation’s zone of ambiguity must also counsel in favor of

deference. Kisor, 139 S. Ct. at 2415–18.

After Kisor, this Court, sitting en banc, unanimously

concluded that the reprised standard for Auer deference applied

to the Commission’s interpretive commentary. See Nasir,

17 F.4th at 470–71. With that new understanding, 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. See id.

Rather, to remain binding, such a decision must have

(presciently) complied with the Kisor process: a genuine-

ambiguity analysis followed by an independent evaluation of

the character and context of the agency’s interpretation,

provided that the agency’s interpretation falls within the

Guideline’s zone of ambiguity. See id. at 471–72.

8

Because the Commission promulgated Guideline

§ 3B1.1(a), the Stinson paradigm applies. But the District

Court, which sentenced Adair before the Nasir decision, did

not follow the Kisor process as Nasir now requires before

consideration of the interpretive commentary to determine the

meaning of a Guideline.3 As explained below, however, had

the District Court properly done so, it would have reached the

same outcome, and therefore that legal error was harmless. See

generally Fed. R. Crim. P. 52(a) (“Any error, defect,

irregularity, or variance that does not affect substantial rights

must be disregarded.”); see also United States v. Jenkins,

333 F.3d 151, 153 (3d Cir. 2003) (applying the principle that a

judgment may be affirmed for any ground supported by the

record to a criminal conviction when the law governing that

judgment had been changed by intervening precedent).

B. A Post-Kisor, Post-Nasir Interpretation of the

Organizer-Leader Enhancement in

Guideline § 3B1.1(a)

Before Kisor and Nasir, this Court had interpreted the

organizer-leader enhancement in Guideline § 3B1.1(a) on

several occasions.4 Those cases all, in some way, deferred to

3

Nasir does not prevent courts from considering the other

forms of commentary – background commentary or

commentary regarding a departure from a guideline – or other

resources from the Commission in imposing a sentence. See

Nasir, 17 F.4th at 470–71; see also U.S.S.G. § 1B1.7

(describing three types of commentary to the Guidelines).

Nasir applied the Kisor process only to the use of the

Commission’s interpretive commentary as a tool to determine

the meaning of a Guideline. See Nasir, 17 F.4th at 470–71; see

also Stinson, 508 U.S. at 45.

4

See United States v. Jarmon, 14 F.4th 268 (3d Cir. 2021);

United States v. Raia, 993 F.3d 185 (3d Cir. 2021); United

States v. Williams, 974 F.3d 320 (3d Cir. 2020); United States

9

the Commission’s interpretive commentary, which treated

organizers and leaders interchangeably and used a multi-factor

test to determine the applicability of the enhancement.5 See

v. Huynh, 884 F.3d 160 (3d Cir. 2018); United States v.

Fountain, 792 F.3d 310 (3d Cir. 2015); United States v.

Starnes, 583 F.3d 196 (3d Cir. 2009); United States v. Barrie,

267 F.3d 220 (3d Cir. 2001); United States v. Helbling,

209 F.3d 226 (3d Cir. 2000); United States v. Bass, 54 F.3d 125

(3d Cir. 1995); United States v. Katora, 981 F.2d 1398 (3d Cir.

1992); United States v. Belletiere, 971 F.2d 961 (3d Cir. 1992);

United States v. Phillips, 959 F.2d 1187 (3d Cir. 1992); United

States v. Ortiz, 878 F.2d 125 (3d Cir. 1989); see also United

States v. Chau, 293 F.3d 96 (3d Cir. 2002) (interpreting the

terms ‘organizer,’ ‘leader,’ ‘manager’, and ‘supervisor’ as used

in § 3B1.1(c)); United States v. Bethancourt, 65 F.3d 1074 (3d

Cir. 1995) (same); United States v. Felton, 55 F.3d 861 (3d Cir.

1995) (same).

5

See Jarmon, 14 F.4th at 275 (relying on a case that relies on

the commentary); Raia, 993 F.3d at 191–92 (relying on the

commentary and other cases that rely on the commentary);

Williams, 974 F.3d at 376 (relying on the commentary);

Huynh, 884 F.3d at 170 (relying on the commentary and other

cases that rely on the commentary); Fountain, 792 F.3d at 321

(relying on a case that relies on the commentary); Starnes,

583 F.3d at 216–17 (relying on the commentary and a case that

relies on the commentary); Barrie, 267 F.3d at 223 (relying on

the commentary); Helbling, 209 F.3d at 243 (relying on the

commentary and other cases that rely on the commentary);

Bass, 54 F.3d at 128–29 (same); Katora, 981 F.2d at 1402–05

(same); Belletiere, 971 F.2d at 969–72 (same); Phillips,

959 F.2d at 1191–92 (relying on cases that rely on the

commentary); Ortiz, 878 F.2d at 127 (relying on the

commentary); see also Chau, 293 F.3d at 103 (relying on a

case that relies on the commentary); Bethancourt, 65 F.3d at

1081 (same); Felton, 55 F.3d at 864 (relying on cases that rely

on the commentary).

10

U.S.S.G. § 3B1.1, app. n.4. But none of those cases engaged

in the Kisor process. See Kisor, 139 S. Ct. at 2415–18. They

did not exhaust the traditional tools of construction to conclude

that § 3B1.1 was genuinely ambiguous. See id. at 2415. Nor

did any of those cases determine that the Commission’s

interpretation was a reasonable reading within § 3B1.1’s zone

of ambiguity. See id. at 2416. And they did not examine the

character and context of the Commission’s interpretation. See

id. at 2416–17. Without that now-essential analysis, the

binding nature of those cases’ interpretations of § 3B1.1(a) no

longer perseveres, and the Guideline must be reevaluated under

the Kisor process. That starts with conducting the genuine-

ambiguity analysis using the traditional tools of construction to

examine the text, structure, purpose, and history of § 3B1.1(a).

1. Text

Words and phrases in the text of Guideline § 3B1.1(a)

inform the meaning of the organizer-leader enhancement. The

Guideline increases the offense level by four points if a

defendant is an organizer or leader of extensive criminal

activity:

If the defendant was an organizer or leader of a criminal

activity that involved five or more participants or was

otherwise extensive, increase by 4 levels.

U.S.S.G. § 3B1.1(a). Neither that subsection nor any other part

of the Guidelines specifically defines the terms ‘organizer’ and

‘leader.’ Also, because those words are not terms of art, they

take on their “ordinary, contemporary, common meaning.”

Perrin v. United States, 444 U.S. 37, 42 (1979); see also

Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995);

Abraham v. St. Croix Renaissance Grp., L.L.L.P., 719 F.3d

270, 277 (3d Cir. 2013). To discern the common ordinary

meaning of those terms at the time of § 3B1.1’s promulgation,

it is permissible to consult contemporary dictionaries. See,

e.g., Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070–71

(2018); Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014);

11

Del. Cnty., Pa. v. Fed. Hous. Fin. Agency, 747 F.3d 215, 221

(3d Cir. 2014).

At the outset, several dictionary definitions for the terms

‘organizer’ and ‘leader’ do not fit the context of the organizer-

leader enhancement. As used in § 3B1.1(a), those terms apply

to a “defendant,” convicted “of criminal activity that involved

five or more participants or was otherwise extensive.”

U.S.S.G. § 3B1.1(a). In that setting, it makes no sense to read

the term ‘organizer’ as referring to, for instance, “a notebook

in which correspondence [or] papers . . . are sorted by subject,

date, or otherwise, for systematic handling.”6 Nor is it sound

to interpret the term ‘leader’ as meaning “a primary or terminal

shoot of a plant.”7

After excluding those and other contextually inappropriate

definitions, the remaining dictionary definitions of ‘organizer’

and ‘leader’ provide a foundation for the meaning of those

terms as used in § 3B1.1(a). An ‘organizer’ generally meant

“one that organizes.”8 And ‘organize’ had several related,

relevant definitions that all centered around generating a

coherent functional structure through the coordination of

individual effort.9 Also, as commonly understood, the term

6

Random House Dictionary of the English Language 1365

(1987) (hereinafter ‘Random House’).

7

Webster’s Third New International Dictionary 1283 (1986)

(hereinafter ‘Webster’s Third’).

8

Webster’s Third 1590; see also Random House 1365;

Webster’s New World Dictionary 1002 (1986); Ninth New

Collegiate Dictionary 831 (1986).

9

See Webster’s Third 1590 (defining ‘organize’ as “to arrange

or constitute into a coherent unity in which each part has a

special function or relation,” “to unify into a coordinated

functioning whole [or to] put in readiness for coherent or

cooperative action,” “to set up an administrative and functional

12

‘leader’ referred to “a person who by force of example, talents,

or qualities of leadership plays a directing role [or] wields

commanding influence.”10

Other textual aspects of § 3B1.1(a) illuminate the meaning

of ‘organizer’ and ‘leader.’ The Guideline precedes those

terms with the indefinite article, “an.” That suggests that

§ 3B1.1(a) is not seeking to identify a single person as

organizer or leader – as would be the case if the Guideline

included a definite article to read ‘the organizer or leader.’

Instead, through the indefinite article, § 3B1.1(a) allows the

possibility that multiple persons engaged in the same criminal

activity could qualify as organizers or leaders. Also, the

Guideline joins the terms ‘organizer’ and ‘leader’ by the

conjunction, ‘or,’ which most commonly functions to indicate

either “an alternative between different or unlike things, states,

or actions”11 or a “choice between alternative things, states, or

courses.”12 Under either of those meanings, the use of ‘or’ to

link ‘organizer’ and ‘leader’ would mean that those concepts

were dissimilar, if not alternatives to one another. But ‘or’ also

has a different meaning: it can indicate “the synonymous,

equivalent, or substitutive character of two words or

structure for [or to] provide with or establish as an

organization,” and “to arrange by systematic planning and

coordination of individual effort”).

10

Webster’s Third 1283.

11

Webster’s Third 1585 (providing examples of this meaning

such as “wolves [or] bears are never seen in that part of the

country”; “sick [or] well, he should not be here”; and “eat [or]

go hungry is all the same to him).

12

Webster’s Third 1585 (providing examples of this meaning

such as “will you have tea [or] coffee”; and “decide to study

medicine [or] law”; and “to be, [or] not to be: that is the

question”).

13

phrases,”13 or even a “correction or greater exactness of

phrasing or meaning.”14 See Honig v. Doe, 484 U.S. 305, 334

(1998) (Scalia, J., dissenting) (identifying the multiple

common definitions of the term ‘or’). Under those meanings,

the terms ‘organizer’ and ‘leader’ would either be

synonymous, or the subsequent term, ‘leader’ would provide

greater exactness to the meaning of the term ‘organizer.’ But

under their common ordinary meaning, the terms ‘organizer’

and ‘leader’ were neither synonyms nor alternatives; thus, the

first definition of ‘or’ as a disjunctive conjunction befits

§ 3B1.1(a). See United States v. Tejada-Beltran, 50 F.3d 105,

112 (1st Cir. 1995).15 Thus, in the context of § 3B1.1(a),

multiple persons may qualify as organizers or leaders of

extensive criminal activity, and a criminal defendant could be

an organizer, a leader, or both.

2. Structure

The structure of Guideline § 3B1.1 also affects the meaning

of the organizer-leader enhancement. The most telling aspect

of the Guideline’s structure is that it provides three distinct

enhancements for having an aggravating role in a criminal

offense. Subsection (a) contains the most severe of those

enhancements, the four-point increase for organizers and

leaders of extensive criminal activity. See U.S.S.G.

§ 3B1.1(a). Subsection (b) provides a three-point increase for

being “a manager or supervisor (but not an organizer or leader)

13

Examples of this meaning include “fell over a precipice [or]

cliff”; “the off [or] far side”; and “lessen or abate.” Webster’s

Third 1585.

14

Examples of this meaning include “these essays, [or] rather

rough sketches”; “the present king had no children – [or] no

legitimate children.” Webster’s Third 1585.

15

See also United States v. Wardell, 591 F.3d 1279, 1304 (10th

Cir. 2009); United States v. Reneslacis, 349 F.3d 412, 417 (7th

Cir. 2003).

14

and the criminal activity involved five or more participants or

was otherwise extensive.” Id. § 3B1.1(b). Subsection (c)

provides a two-point enhancement for “an organizer, leader,

manager, or supervisor in any criminal activity other than

described in [subsections] (a) or (b).” Id. § 3B1.1(c).

That structure, coupled with subsection (b)’s specification

that organizers and leaders are exclusive of managers and

supervisors, gives additional dimension to those terms. The

greater enhancement for organizers and leaders in

subsection (a) suggests that they have greater culpability than

managers16 or supervisors.17 See U.S.S.G. Ch. 1, Pt. A,

Subpt. 1 (citing the principle of just deserts – that “punishment

should be scaled to the offender’s culpability” – as one

philosophy informing the Guidelines). That structural

difference provides insight into distinguishing ‘leader’ from

the related terms ‘manager’ and ‘supervisor.’ To be more

16

The term ‘manager’ referred to a person with oversight over

operations or other persons. See Webster’s Third 1372(“[A]

person that conducts, directs, or supervises something.”);

Manager, Black’s Law Dictionary (6th ed. 1990) (“A person

chosen or appointed to manage, direct, or administer the affairs

of another person or of a business, sports team, or the like.”);

Random House 1166–67 (“[A] person who has control or

direction of an institution, business, etc., or of a part, division,

or phase of it.”).

17

The term ‘supervisor’ also referred to a person with oversight

over operations or other persons. See Webster’s Third 2296

(“[O]ne that supervises a person, group, department,

organization, or operation.”); Supervisor, Black’s Law

Dictionary (6th ed. 1990) (“In a broad sense, one having

authority over others, to superintend and direct.”); Random

House 1911 (“[A] person who supervises workers or the work

done by others; superintendent.”).

15

culpable than a manager or supervisor, a leader must have a

greater degree of operational control over criminal activity.

Another aspect of comparative structure of subsections (a)

and (b) presents a minor wrinkle: contrary to the consistent-

usage canon,18 the term ‘or’ is used differently in those

subsections. In subsection (a), the term ‘or’ joins separate

concepts, ‘organizer’ and ‘leader.’ See U.S.S.G. § 3B1.1(a).

But see U.S.S.G. § 3B1.1, app. n.4 (failing to distinguish

between ‘organizer’ and ‘leader’). By contrast, in

subsection (b), the ‘or’ conjunction links similar terms,

‘manager’ and ‘supervisor.’ See U.S.S.G. § 3B1.1(b). But the

consistent-usage canon is not absolute. See United States v.

Cleveland Indians Baseball Co., 532 U.S. 200, 213 (2001)

(“Although we generally presume that ‘identical words used in

different parts of the same act are intended to have the same

meaning,’ the presumption ‘is not rigid,’ and ‘the meaning [of

the same words] well may vary to meet the purposes of the

law.’” (quoting Atl. Cleaners & Dryers, Inc. v. United States,

286 U.S. 427, 433 (1932) (alteration in original))).19 Rather,

the canon applies most powerfully to specialized terms of art.

See, e.g., Utica Mut. Ins. Co. v. Munich Reinsurance Am., Inc.,

18

See generally Pereira v. Sessions, 138 S. Ct. 2105, 2115

(2018) (quoting Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S.

560, 571 (2012) (“[I]t is a normal rule of statutory construction

that identical words used in different parts of the same act are

intended to have the same meaning.”); United States v. Sims,

957 F.3d 362, 365 (3d Cir. 2020) (applying the canon of

presumption of consistent usage in interpreting the

Guidelines).

19

See also Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 170 (2012) (“Though one

might wish it were otherwise, drafters more than rarely use the

same word to denote different concepts, and often (out of a

misplaced pursuit of stylistic elegance) use different words to

denote the same concept.”).

16

7 F.4th 50, 57 (2d Cir. 2021) (quoting Md. Cas. Co. v. W.R.

Grace & Co., 128 F.3d 794, 799 (2d Cir. 1997) (“[T]erms in a

document, especially terms of art, normally have the same

meaning throughout the document.”). And the everyday word

‘or’ is not a term of art. Also, the frequency of the use of the

word ‘or’ in the English language along with its lack of ready

synonyms further excuses its different uses in subsections (a)

and (b).

3. Purpose

In the background commentary for Guideline § 3B1.1, the

Commission identified the purpose for the aggravating-role

enhancement. The Commission intended that the offense level

“should increase with both the size of the organization and the

degree of the defendant’s responsibility.” U.S.S.G. § 3B1.1

Background. To effectuate that purpose, organizers and

leaders of extensive criminal activity should have greater

responsibility for the offense than managers and supervisors –

a conclusion consistent with the structure of Guideline

§ 3B1.1.

4. History

The history of Guideline § 3B1.1 does little to clarify the

meaning of ‘organizer’ or ‘leader.’ The Commission

promulgated § 3B1.1 in 1987 and has not amended it.20

Without any intervening amendments, there is no basis to

consider revisiting the dictionary definitions of ‘organizer’ and

‘leader’ from the time of § 3B1.1’s promulgation.

20

The Commission did amend its interpretive commentary

twice in that period. See U.S.S.G. § 3B1.1 (1991); U.S.S.G.

§ 3B1.1 (1993).

17

C. The Traditional Tools of Construction Yield

Definitive Meanings for the Terms

‘Organizer’ and ‘Leader.’

The text, structure, purpose, and history of Guideline

§ 3B1.1 compel the conclusion that the terms ‘organizer’ and

‘leader’ are not genuinely ambiguous. The common ordinary

meanings of those terms at the time of promulgation together

with the structure and purpose of § 3B1.1 lead to contextually

appropriate definitions of those terms. As used in § 3B1.1, an

‘organizer’ is a person who generates a coherent functional

structure for coordinated criminal activity. Similarly, in

§ 3B1.1, a ‘leader’ is a person with high-level directive power

or influence over criminal activity. Without a genuine

ambiguity, the multi-factor test in the commentary, see

U.S.S.G. § 3B1.1, cmt. 4, is not controlling. Nor do labels,

such as ‘kingpin’ or ‘boss,’ provide deep insight into the

applicability of the organizer-leader enhancement. Cf. id.

(explaining that “titles such as ‘kingpin’ or ‘boss’ are not

controlling”). Rather, a defendant who meets the definition of

an ‘organizer’ or ‘leader’ qualifies for the four-point

enhancement.

D. The District Court’s Factual Findings

Support the Application of the Organizer-

Leader Enhancement.

Applying the post-Kisor, post-Nasir understanding of

§ 3B1.1(a) to the District Court’s factual findings, which are

not clearly erroneous, reveals that Adair qualified for the

organizer-leader enhancement. See Anderson v. City of

Bessemer City, 470 U.S. 564, 573–74 (1985) (explaining that

clear error requires a “definite and firm conviction that a

mistake has been committed.” (citation omitted)); see also

United States v. Igbonwa, 120 F.3d 437, 440–41 (3d Cir.

1997).

The record contains evidence that Adair was an organizer.

She set up a network in which persons obtained prescriptions,

18

filled those, and then coordinated with her to distribute pills.

She used her self-described “potent” “hustle skills” to recruit

persons to obtain those prescriptions, and at one point, she had

twelve people, including her mother and sister, doing so. Tr.

of Antoinette Adair Phone Call to William Richardson (App.

98). As she saw herself, she was a “producer” who set up the

operation. Tr. of Antoinette Adair Phone Call to William

Richardson (Mar. 12, 2016) (App. 224–25). Because her

efforts gave functional structure to a coordinated opiate

distribution scheme that involved at least five participants,

Adair qualifies as an organizer. See U.S.S.G. § 3B1.1(a).

The District Court’s application of the organizer-leader

enhancement can also be sustained on the ground that Adair

was a leader of extensive criminal activity. Although the terms

‘organizer’ and ‘leader’ are separate, they are not wholly

distinct, and when an organizer retains control over the

functional structure for criminal activity that he or she

coordinated, that evidences high-level directive power or

influence over criminal activity needed for the leader

enhancement. Not only did Adair retain control over the

prescription-pill scheme that she coordinated, but also she

made high-level decisions essential to its continued operation.

When she learned that the physician who wrote prescriptions

for her suppliers “was going down,” she found another doctor

to do so. Tr. of Antoinette Adair Phone Call to William

Richardson (App. 98). In addition, Adair decided when and

where sales would occur, and she often coordinated drug sales

with various men whom she oversaw like sons. She had an

elevated position in the criminal activity and used others to

chauffeur her during drug deliveries and to serve as her

bodyguards. To maintain her operation, Adair would

occasionally front pills to another drug dealer in the area or

throw in extra pills for free when he could not afford

everything she had to sell. Adair also arranged sales to her

customers from other drug dealers when she had no pills to sell.

And she took measures to preserve her operations: on at least

19

one occasion, when she was not paid in full, she threatened a

group of buyers at gunpoint.

Adair counters that she was simply a broker or a mere

middleman in a larger criminal enterprise. Some of her

conduct is consistent with those roles. She nurtured and

protected her relationships with her suppliers by, in her words,

“[w]ining and dining em, and taking care of their kids.” Tr. of

Antoinette Adair Phone Call to William Richardson (App. 98).

And Adair was not the largest drug dealer in town; she worked

with another dealer who oversaw a much larger distribution

network. But having those client-management skills and a

relationship with a larger-scale drug dealer does not preclude

Adair from also being a leader. To the contrary, those factors,

together with her strategic operational decisions confirm the

high-level control that she had over the prescription-pill

scheme that she organized. For these reasons, the § 3B1.1(a)

four-point enhancement could also be sustained on the ground

that Adair was a leader.

II. The Additional One-Point Reduction for

Acceptance of Responsibility Under Guideline

§ 3E1.1(b)

As a separate challenge to the calculation of her offense

level, Adair argues that the government should have moved for

an additional one-point reduction for acceptance of

responsibility. The District Court decreased Adair’s offense

level by two points under § 3E1.1(a) upon finding that she had

accepted responsibility for her offenses. But the government

did not move under § 3E1.1(b) to reduce Adair’s offense level

by a third point for acceptance of responsibility. The

government withheld that motion because Adair disputed

certain sentencing enhancements, such as the four-point

increase for being an organizer or leader. Adair now argues

that the government impermissibly withheld the § 3E1.1(b)

motion and that the District Court should have compelled the

government to move for an additional one-point acceptance-

20

of-responsibility reduction. Her challenge fails for the reasons

below.

A. Argument Preservation and the Standard of

Review

As an initial matter, the parties dispute whether Adair

preserved the § 3E1.1(b) argument in District Court, and

preservation affects the standard of appellate review. See

Fed. R. Crim. P. 51(b) (explaining that a party may preserve an

argument by objecting and stating the basis for the objection);

United States v. Joseph, 730 F.3d 336, 337 (3d Cir. 2013). If

Adair preserved her acceptance-of-responsibility argument,

then on appeal, legal issues are examined de novo, and factual

findings are reviewed for clear error. See United States v.

Williams, 344 F.3d 365, 379 (3d Cir. 2003). But if she did not,

then to prevail, she must meet the four requirements of plain-

error review. See United States v. Greenspan, 923 F.3d 138,

147 (3d Cir. 2019).

The plain-error standard, however, is not entirely distinct

from the other standards of appellate review. The first prong

of plain-error review examines whether a district court erred.

See United States v. Jabateh, 974 F.3d 281, 298 (3d Cir. 2020)

(quoting United States v. Olano, 507 U.S. 725, 732 (1993)).

For purposes of that prong, the difference between preserved

and unpreserved error is immaterial: in either circumstance, an

appellate court uses the standard of review that would have

applied had the argument been preserved. For example, if a

preserved argument would receive de novo review, then the

first prong of the plain-error standard would evaluate error de

novo. Similarly, if a preserved argument would be reviewed

under a more deferential standard, such as clear error or abuse

of discretion, then the more deferential standard would apply

to the first prong of the plain-error standard for an unpreserved

argument. See, e.g., United States v. Kolodesh, 787 F.3d 224,

239 & n.19 (3d Cir. 2015); United States v. Fitch, 659 F.3d

21

788, 797 n.7 (9th Cir. 2011).21 Thus, the real effect of

unpreserved error comes not from the first plain-error prong

but rather from the latter three prongs, which do not apply to

preserved arguments and which require an appellant to make

additional showings of plainness, effect on substantial rights,

and serious effect on the fairness, integrity, or public reputation

of judicial proceedings. See generally Olano, 507 U.S. at 732–

36. But if there is no error, then the latter three prongs are of

no consequence, and a challenge fails regardless of whether it

was preserved.

Those principles apply here. As explained below, the

District Court did not err in declining to compel the

government to move for an acceptance-of-responsibility

reduction. Because there was no error, it is unnecessary to

decide the preservation issue: regardless of whether Adair

preserved her argument, she cannot prevail.

B. Guideline § 3E1.1 Before and After

Legislative Amendment

Adair’s challenge focuses on the meaning and scope of

Guideline § 3E1.1, which allows for a downward adjustment

when a defendant accepts responsibility for an offense. That

Guideline has been modified several times since its initial

promulgation by the Commission in 1987, and some of those

amendments are significant here.

In its original form, Guideline § 3E1.1 allowed a sentencing

court to reduce a criminal defendant’s offense level by two

points upon a defendant’s clear demonstration of “a

21

If the error prong of the plain-error standard did not mirror

the underlying standard of review for preserved error but

instead always evaluated error de novo, then that could

incentivize a party to refrain from preserving an argument in

instances where the standard of review for preserved error

would be more deferential than de novo review.

22

recognition and affirmative acceptance of personal

responsibility for the offense of conviction.” U.S.S.G.

§ 3E1.1(a) (1987). The Commission issued five interpretive

comments as application notes to the original version of

§ 3E1.1 to guide the determination of whether a defendant

accepted responsibility for an offense.

But the Commission must periodically review and revise

the Guidelines, see 28 U.S.C. § 994(o), so they are not

necessarily constant over time. To amend the Guidelines, the

Commission first must follow a notice-and-comment

rulemaking process. See id. § 994(x); see also United States v.

Riccardi, 989 F.3d 476, 484 (6th Cir. 2021); see generally

5 U.S.C. § 553(b)–(c). Next, the Commission must notify

Congress of the proposed revisions to the Guidelines. See

28 U.S.C. § 994(p). If, after 180 days, Congress does not

disapprove or modify the proposed amendments, they then take

effect. See id. § 994(p); Stinson, 508 U.S. at 41 (“Amendments

to the guidelines must be submitted to Congress for a 6-month

period of review, during which Congress can modify or

disapprove them.”).

Through this process, in 1992, the Commission amended

Guideline § 3E1.1 to allow an additional one-point acceptance-

of-responsibility reduction. See U.S.S.G. § 3E1.1(b) (1992);

U.S.S.G. app. C amend. 459 (effective Nov. 1, 1992). Under

that new provision, codified in subsection (b), the sentencing

court could decrease the offense level by one additional point

if it made three supplemental determinations. Those required

findings were that the defendant (i) qualified for the two-point

acceptance-of-responsibility reduction; (ii) had an offense

level of 16 or greater; and (iii) “assisted authorities in the

investigation or prosecution of his own misconduct.” U.S.S.G.

§ 3E1.1(b) (1992). For that third requirement, the 1992

Amendments specified two ways to demonstrate assistance to

authorities: timely provision of complete information to the

23

government about a defendant’s involvement in the offense,22

or timely notice of a defendant’s intention to plead guilty.23 As

guidance for the additional one-point reduction, the

Commission issued a sixth application note to its interpretive

commentary. See id. § 3E1.1, cmt. n.6 (describing subsection

(b) and explaining the significance of timeliness to both

subsections (b)(1) and (b)(2)).24

In late 2001 and early 2002, the Commission attempted to

amend § 3E1.1 again. See Sentencing Guidelines for United

States Courts, 66 Fed. Reg. 59330, 59337–38 (Nov. 27, 2001).

The Commission proposed retracting one of the additions from

the 1992 Amendments by eliminating the complete-

information basis for demonstrating assistance to authorities.

See id.; see also U.S.S.G. § 3E1.1(b)(1) (1992). It explained

that a reduction on that ground “undermines the incentive to

plead guilty . . . because the defendant can receive the reduction

even if the defendant has caused the government and the court

to devote substantial resources to preparing the case for trial.”

Sentencing Guidelines for United States Courts, 66 Fed. Reg.

59330, 59337 (Nov. 27, 2001). With the elimination of that

option, the third-point reduction for acceptance of

responsibility would be available only for timely notice of an

intention to plead guilty. According to the Commission, that

would “save both judicial and governmental resources by

providing defendants a stronger incentive to timely plead

guilty.” Id.

22

See U.S.S.G. § 3E1.1(b)(1) (1992).

23

See id. § 3E1.1(b)(2).

24

In addition to adding Application Note 6, the Commission

also amended Notes 1 through 5 in ways not relevant here.

24

After completing the notice-and-comment process,25 the

Commission held a public meeting to determine whether to

submit the proposed amendment to Congress. See Notice of

Public Meeting of the United States Sentencing Commission

(Apr. 5, 2002).26 At that meeting, however, a Vice Chair of the

Commission opposed the motion to amend Guideline

§ 3E1.1(b), and it did not receive a second vote. See id.

Without a successful motion, the Commission did not submit

the proposed amendment to Congress and did not promulgate

the amendment. See id.

In 2003, Congress addressed that failed amendment

through § 401 of the PROTECT Act. That legislation amended

Guideline § 3E1.1(b) to delete the complete-information basis

for the third-point acceptance-of-responsibility reduction. See

Prosecutorial Remedies and Other Tools to end the

Exploitation of Children Today (PROTECT) Act of 2003, Pub.

L. No. 108-21, § 401(g), 117 Stat. 650, 671 (2003); cf.

U.S.S.G. § 3E1.1(a)(1) (1992).

But § 401 went further than the Commission’s failed

proposal. Section 401 also effectuated a structural change to

the third-point acceptance-of-responsibility reduction. Before

the § 401 amendments, the sentencing court decided the

appropriateness of the additional one-point reduction. See

United States v. Drennon, 516 F.3d 160, 161 (3d Cir. 2008);

U.S.S.G. § 3E1.1 (1992). As revised by § 401, Guideline

25

The time for comments was extended because, before the

initial time for public comments had expired, the Commission

issued a second notice of proposed amendments pertaining to

§ 3E1.1(b) to correct a technical error in the initial proposed

amendment – the inadvertent deletion of the word ‘timely’

from subsection (b)(2). See Sentencing Guidelines for United

States Courts, 67 Fed. Reg. 2456 (Jan. 17, 2002).

26

Available at https://www.ussc.gov/policymaking/meetings-

hearings/notice-april-5-2002 (last visited June 28, 2022).

25

§ 3E1.1(a) conditions the extra one-point reduction upon a

motion by the government. See PROTECT Act

§ 401(g)(1)(A). Section 401 further specified the necessary

contents for the government’s motion: it must state that the

defendant “timely notif[ied] authorities of his intention to enter

a plea of guilty, thereby permitting the government to avoid

preparing for trial and permitting the government and the court

to allocate their resources efficiently.” Id. § 401(g)(1)(B).

Section 401 also added one sentence to Application Note 6,

underscoring that a motion by the government was necessary

for the third-point reduction for acceptance of responsibility:

Because the Government is in the best position to

determine whether the defendant has assisted

authorities in a manner that avoids preparing for trial,

an adjustment under subsection (b) may only be granted

upon a formal motion by the Government at the time of

sentencing.

Id. § 401(g)(2)(B) (emphasis added). Finally, to preserve these

modifications from later periodic revision by the Commission,

§ 401 expressly prohibited the Commission from altering or

repealing the legislative amendments to the acceptance-of-

responsibility reduction:

At no time may the Commission promulgate any

amendment that would alter or repeal the amendments

made by subsection (g) of this section.

Id. § 401(j)(4); see also id. § 401(g) (amending § 3E1.1(b) and

Application Note 6).

Despite that congressional command, about ten years later,

the Commission promulgated Amendment 775. That

amendment added a sentence to Application Note 6 that

limited the government’s discretion for withholding a § 3E1.1

motion:

26

The government should not withhold such a motion

based on interests not identified in § 3E1.1, such as

whether the defendant agrees to waive his or her right

to appeal.

U.S.S.G. § 3E1.1, cmt. n.6 (2013); U.S.S.G. app. C amend. 775

(effective Nov. 1, 2013). The Commission relied on legislative

silence to justify Amendment 775:

In its study of the PROTECT Act, the Commission

could discern no congressional intent to allow decisions

under § 3E1.1 to be based on interests not identified in

§ 3E1.1.

Sentencing Guidelines for United States Courts, 78 Fed. Reg.

26425, 26432 (May 6, 2013). In adding that commentary to

Note 6, the Commission did not address whether

Amendment 775 conflicted with § 401’s prohibition on

modifying U.S.S.G. § 3E1.1.

C. Amendment 775 Does Not Control § 3E1.1(b)

Motions.

Adair’s challenge to the third-point reduction rests on

Amendment 775. She argues that the government violated

Amendment 775 by withholding a § 3E1.1(b) motion for

reasons other than the timeliness of her guilty plea. If

Amendment 775 validly restricts prosecutorial discretion, then

Adair would be correct. But for three independent reasons,

Amendment 775 is not controlling.

First, Amendment 775 violates § 401(j)(4) of the

PROTECT Act, which prevents the Commission from altering

or repealing Congress’s amendments to § 3E1.1(b). The § 401

amendments identify only one circumstance in which the

government can move for the third-point reduction for

acceptance of responsibility: a defendant’s timely notice of an

intention to enter a guilty plea. See PROTECT Act

§ 401(g)(1)). But the § 401 amendments do not compel the

27

government to make such a motion under that circumstance –

or any other. See id. Thus, the § 401 amendments leave the

decision to make a § 3E1.1(b) motion to the government’s

discretion. See Drennon, 516 F.3d at 162–63.

Amendment 775 trespasses into that field of discretion by

allowing the government to withhold such a motion only when

a defendant does not give timely notice of an intention to enter

a guilty plea. See U.S.S.G. § 3E1.1, cmt. n.6; U.S.S.G. app. C

amend. 775 (effective Nov. 1, 2013). Limiting when the

government can withhold a motion to only that circumstance is

just another way of requiring the government to make a

§ 3E1.1(b) motion upon a defendant’s timely notice of an

intention to plead guilty. Because the § 401 amendments lack

such a requirement, Amendment 775 imposes an additional

condition in violation of § 401(j), which prohibits the

Commission from altering the congressional amendments. See

PROTECT Act § 404(j)(4); see also La. Pub. Serv. Comm’n v.

FCC, 476 U.S. 355, 374–75 (1986) (“To permit an agency to

expand its power in the face of a congressional limitation on

its jurisdiction would be to grant to the agency power to

override Congress.”). Accordingly, the commentary added by

Amendment 775 has no force of law and is not controlling. See

LaVallee Northside Civic Ass’n v. V.I. Coastal Zone Mgmt.

Comm’n, 866 F.2d 616, 623 (3d Cir. 1989) (“[A]n

administrative agency’s regulation that conflicts with the

parent statute is ineffective.”); see also Ball, Ball & Brosamer,

Inc. v. Reich, 24 F.3d 1447, 1450 (D.C. Cir. 1994) (“An agency

can neither adopt regulations contrary to statute nor exercise

powers not delegated to it by Congress.”).

Second, Amendment 775 exceeds the Commission’s

delegated powers. Through the commentary added by

Amendment 775, the Commission purports to govern the

discretion of a cabinet-level agency – the Department of Justice

and each of its prosecuting component agencies – with respect

to the third-point reduction for acceptance of responsibility.

Yet nothing in Congress’s delegation of “significant

discretion” to the Commission, Mistretta v. United States,

28

488 U.S. 361, 377, 379 (1989), suggests that the Commission

has power greater than the Attorney General such that it may

direct the exercise of the Department of Justice’s prosecutorial

discretion. Compare 28 U.S.C. § 994(b)(1) (directing the

Commission to develop a system of sentencing ranges “for

each category of offense involving each category of

defendant”), with 28 U.S.C. § 516 (“Except as otherwise

authorized by law, the conduct of litigation in which the United

States, an agency, or officer thereof is a party, or is interested,

and securing evidence therefor, is reserved to officers of the

Department of Justice, under the direction of the Attorney

General.”). For this reason as well, Amendment 775 has no

force of law.

Third, even overlooking its other fatal shortcomings,

Amendment 775 would still not merit controlling weight. The

Guideline that Amendment 775 attempts to interpret,

§ 3E1.1(b), is atypical because Congress, not the Commission,

authored it. Thus, Guideline § 3E1.1(b) falls outside of the

Stinson paradigm and is not a candidate for Auer deference.

Even still, Amendment 775 would not qualify for controlling

deference under any framework because the Commission did

not invoke its data-driven expertise on criminal sentencing.

Instead, Amendment 775 represents the Commission’s legal

interpretation of Guideline § 3E1.1(b). And an agency’s

application of the canons of construction does not receive

controlling deference. See SEC v. Chenery Corp., 318 U.S. 80,

94 (1943) (“[I]f the action is based upon a determination of law

as to which the reviewing authority of the courts does come

into play, an order may not stand if the agency has

misconceived the law.”); see also Kisor, 139 S. Ct. at 2417

(explaining that to receive Auer deference, “the agency’s

interpretation must in some way implicate its substantive

expertise”). Because Amendment 775 is not the product of

agency subject-matter expertise, but rather the Commission’s

29

application of the traditional tools of construction,

Amendment 775 cannot receive controlling deference.27

Several of our sister circuits have nonetheless treated

Amendment 775 as controlling.28 Even apart from the reasons

above, which none of those courts contemplated, Amendment

775 cannot have any traction in this Circuit. That is so because,

before the Commission issued Amendment 775, this Court, in

United States v. Drennon, 516 F.3d 160 (3d Cir. 2008),

27

Even if an agency could receive controlling deference for its

application of the canons of construction, the Commission’s

interpretation of § 3E.1.(b) still would not merit such

deference. It drew a negative inference from legislative silence:

the absence of congressionally specified criteria for initiating

§ 3E1.1(b) motions led the Commission to infer that the sole

criterion for such a motion was timely notice of an intention to

plead guilty. See Sentencing Guidelines for United States

Courts, 78 Fed. Reg. 26425, 26432 (May 6, 2013). But reading

substance from legislative silence is at best a companion

canon; it cannot, on its own, justify an interpretation. See Cent.

Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.,

511 U.S. 164, 187 (1994); Brown v. Gardner, 513 U.S. 115,

121 (1994). And here, the Commission did not offer any other

support for its construction of Amendment 775. See

Sentencing Guidelines for United States Courts, 78 Fed. Reg.

26425, 26431–32 (May 6, 2013). Even worse, the Commission

did not account for the countervailing inference that Congress,

by not specifying any criteria for § 3E1.1(b) motions, sought

to permit government decisions based on any legitimate

interest.

28

See, e.g., United States v. Johnson, 980 F.3d 1364, 1380–81

(11th Cir. 2020); United States v. Rivera-Morales, 961 F.3d 1,

16 (1st Cir. 2020); United States v. Brockman, 924 F.3d 988,

994–95 (8th Cir. 2019); United States v. Rayyan, 885 F.3d 436,

440–41 (6th Cir. 2018); United States v. Castillo, 779 F.3d

318, 322–23 (5th Cir. 2015).

30

interpreted the PROTECT Act’s modifications to § 3E1.1(b).

In analyzing the scope of the government’s discretion in

making a motion under § 3E1.1(b), Drennon examined several

sources: the text of the amendment, the congressional

amendment to Application Note 6, and the Supreme Court’s

analysis of a textually and structurally similar guideline. See

Drennon, 516 F.3d at 161–63; see also Wade v. United States,

504 U.S. 181, 185–86 (1992) (analyzing the government’s

discretion in making a substantial-assistance motion under

Guideline § 5K1.1). From its consideration of those sources,

Drennon held that the government can withhold a § 3E1.1(b)

motion so long as it does not have an unconstitutional motive

for doing so. See Drennon, 516 F.3d at 162–63; see also id. at

162 (“The relevant text of § 3E1.1(b) tracks that of U.S.S.G.

§ 5K1.1 which requires a motion from the government before

any downward departure may be granted based upon the

defendant’s cooperation with the government.”). Because

Drennon did not rely on agency deference in interpreting the

congressionally enacted Guideline § 3E1.1(b), its construction

of that provision cannot be replaced by the Commission’s later

interpretation in Amendment 775. See United States v. Home

Concrete & Supply, LLC, 566 U.S. 478, 487 (2012) (plurality

op.) (concluding that because a prior Supreme Court case

interpreted a statute without relying on deference principles, no

different construction was “available for adoption by [an]

agency”); see also Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967, 982 (2005) (explaining that a

binding judicial construction of an unambiguous statute

“leaves no room for agency discretion.”). Put differently,

because an agency may not replace a controlling judicial

interpretation of an unambiguous statute with its own

construction (even if that construction is based on agency

expertise), there is no room for Amendment 775 in this Circuit.

31

D. The Record Lacks Evidence that the

Government Withheld a § 3E1.1(b) Motion

for an Unconstitutional Motive.

Because Amendment 775 has no legal force in this Circuit,

the only remaining inquiry concerns whether, by withholding

the § 3E1.1(b) motion, the government violated Drennon’s

unconstitutional-motive standard. The government acts with

unconstitutional motive when it withholds a § 3E1.1(b) motion

based on a defendant’s race, religion, or gender, or “when its

refusal to move was not rationally related to any legitimate

government end.” Drennon, 516 F.3d at 162–63 (internal

quotation marks omitted) (quoting United States v. Abuhouran,

161 F.3d 206, 212 (3d Cir. 1998)); see also Wade, 504 U.S. at

185–86.

Here, Adair has no evidence, much less evidence

amounting to a “substantial threshold showing,” that the

government acted with an unconstitutional motive. Wade,

504 U.S. at 186; see also id. (explaining that “a defendant has

no right to discovery or an evidentiary hearing unless he make

a substantial threshold showing” of an improper motive

(internal quotation marks omitted)). Rather, as the government

explained, it refused to make the § 3E1.1(b) motion because

Adair caused it to have to prepare for a two-day sentencing

hearing. The government’s position reflects the additional

leverage that Congress – as a policy choice – imparted to it

through the conferral of discretion over § 3E1.1(b) motions.

But using the third-point reduction as a bargaining chip to

resolve sentencing disputes is not an unconstitutional motive,

and thus Adair cannot prevail in her effort to compel the

government to make a § 3E1.1(b) motion.

CONCLUSION

For the foregoing reasons, we will affirm the judgment of

sentence.

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