United States v. Brandon Romel Dupree

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-13776

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRANDON ROMEL DUPREE,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:19-cr-00013-PGB-DCI-1

____________________

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19-13776 Opinion of the Court 2

Before WILLIAM PRYOR, Chief Judge, WILSON, JORDAN,

ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA,

and BRASHER, Circuit Judges.

JILL PRYOR, Circuit Judge, delivered the opinion of the Court, in

which WILLIAM PRYOR, Chief Judge, WILSON, JORDAN,

ROSENBAUM, NEWSOM, LAGOA, and BRASHER, Circuit Judges,

joined.

WILLIAM PRYOR, Chief Judge, filed a concurring opinion.

GRANT, Circuit Judge, filed an opinion concurring in the judgment.

LUCK, Circuit Judge, filed a dissenting opinion, in which BRANCH,

Circuit Judge, joined.

JILL PRYOR, Circuit Judge:

This appeal requires us to consider whether an inchoate of-

fense qualifies as a “controlled substance offense” for purposes of

the career offender sentencing enhancement under the United

States Sentencing Guidelines. U.S. Sent’g Guidelines Manual

§ 4B1.2(b) (U.S. Sent’g Comm’n 2018). In this case, the district

court sentenced Brandon Dupree as a career offender based partly

on his conviction for conspiring to possess with intent to distribute

a controlled substance in violation of 21 U.S.C. § 846. Dupree ap-

pealed his sentence, arguing that his § 846 conspiracy conviction

could not serve as a predicate for his career offender enhancement

because the Guidelines’ definition of “controlled substance of-

fense” omitted conspiracy and other inchoate crimes.

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19-13776 Opinion of the Court 3

A panel of this Court affirmed Dupree’s sentence, conclud-

ing that our decisions in United States v. Weir, 51 F.3d 1031 (11th

Cir. 1995), and United States v. Smith, 54 F.3d 690 (11th Cir. 1995),

foreclosed his argument. United States v. Dupree, 849 F. App’x 911

(11th Cir. 2021) (unpublished), reh’g en banc granted, opinion va-

cated 25 F.4th 1341 (11th Cir. 2022). We granted Dupree’s petition

to rehear the case en banc. After careful consideration, and with

the benefit of oral argument, we hold that the definition of “con-

trolled substance offense” in § 4B1.2(b) does not include inchoate

offenses. We therefore vacate Dupree’s sentence and remand to

the district court for resentencing.

I. BACKGROUND

Dupree pled guilty to one count of possession of a firearm

after having been convicted of a felony, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2); one count of conspiracy to possess with

intent to distribute heroin and cocaine, in violation of 21 U.S.C.

§ 846; and one count of carrying a firearm in furtherance of a drug

trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Before

his sentencing, a probation officer prepared a Presentence Investi-

gation Report (“PSR”). The PSR reported that Dupree had two pre-

vious convictions for controlled substance offenses. The PSR con-

sidered Dupree’s § 846 conspiracy conviction to be his third con-

trolled substance offense. Together, these three offenses qualified

Dupree for the career offender enhancement under § 4B1.1(a) of

the Sentencing Guidelines.

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Applying the enhancement, the PSR assigned Dupree a total

offense level of 29 with a criminal history category of VI, for a range

of 151 to 188 months of imprisonment under the Guidelines. In ad-

dition, Dupree was required to serve a consecutive 60-month term

of imprisonment for the carrying a firearm count. See 18 U.S.C.

§ 924(c). After adding the mandatory minimum consecutive pen-

alty required by § 924(c), Dupree’s guidelines range was 211 to 248

months of imprisonment.

Without the enhancement, Dupree’s guidelines range

would have been lower. He would have had an offense level of 23

with a criminal history category of V, resulting in a guideline range

of 84 to 105 months’ imprisonment. After adding the mandatory

minimum penalty required by § 924(c), his guidelines range would

have been 144 to 165 months’ imprisonment.

Dupree objected to the enhancement, arguing that inchoate

crimes 1 such as his § 846 conspiracy conviction did not qualify as a

controlled substance offense. 2 He argued that without his § 846

conspiracy conviction serving as his third qualifying offense he

could not be sentenced as a career offender. The district court

1

Inchoate crimes involve “[a] step toward the commission of another crime,

the step in itself being serious enough to merit punishment.” Inchoate Offense,

Black’s Law Dictionary (11th ed. 2019). “The three inchoate offenses are at-

tempt, conspiracy, and solicitation.” Id.

2

Dupree also objected to the PSR’s classification of his two prior state drug

convictions as controlled substance offenses. The district court overruled the

objection, and Dupree did not pursue the issue on appeal.

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overruled Dupree’s objection and applied the enhancement. Based

on considerations including Dupree’s youth and difficult upbring-

ing, as well as his serious medical conditions including paralysis

from waist down, the district court varied downward from the

guideline range and sentenced Dupree to 106 months’ imprison-

ment.

On appeal, Dupree renewed his argument that his § 846 con-

spiracy conviction did not count as a controlled substance offense.

He pointed to the plain language of § 4B1.2, which omitted incho-

ate offenses from the definition of “controlled substance offense.”

He acknowledged that the commentary to § 4B1.2—specifically

Application Note 1—included inchoate crimes in the definition.

But he argued that Application Note 1 was unenforceable because

it was inconsistent with § 4B1.2’s plain text.

The panel rejected Dupree’s argument. Dupree,

849 F. App’x at 912. It relied on Weir, in which “we held that con-

spiracy to possess with intent to distribute marijuana was a con-

trolled substance offense within the meaning of the career offender

enhancement.” Id. (citing Weir, 51 F.3d at 1031–32). The panel fur-

ther noted that in Smith, decided after Weir, we “held . . . that

[A]pplication [N]ote 1 to . . . § 4B1.2 ‘constitutes a binding interpre-

tation of the term controlled substance offense.’” Id. (quoting

Smith, 54 F.3d at 693). This precedent, the panel concluded, bound

it to affirm Dupree’s sentence. Id.

Dupree petitioned for, and we granted, rehearing en banc to

revisit our precedent.

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II. STANDARD OF REVIEW

“We review de novo the interpretation and application of

the Sentencing Guidelines.” United States v. Cingari, 952 F.3d 1301,

1305 (11th Cir. 2020).

III. DISCUSSION

Dupree argues that he was not a career offender under the

Guidelines. A defendant is considered a career offender for pur-

poses of sentencing if, among other things, the defendant “has at

least two prior felony convictions of either a crime of violence or a

controlled substance offense” and his “instant offense of conviction

is a felony that is either a crime of violence or a controlled sub-

stance offense.” U.S. Sent’g Guidelines Manual § 4B1.1(a). Dupree

concedes that his prior state drug convictions qualified as con-

trolled substance offenses. But he argues that his § 846 conspiracy

conviction does not count as the required third predicate offense

because it was not a controlled substance offense. Section 4B1.2

provides:

The term “controlled substance offense” means an of-

fense under federal or state law, punishable by impris-

onment for a term exceeding one year, that prohibits

the manufacture, import, export, distribution, or dis-

pensing of a controlled substance . . . or the posses-

sion of a controlled substance . . . with intent to man-

ufacture, import, export, distribute, or dispense.

Id. § 4B1.2(b). The commentary in Application Note 1 to § 4B1.2

adds that the term “‘controlled substance offense’ include[s] the

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offenses of aiding and abetting, conspiring, and attempting to com-

mit such offenses.” Id. § 4B1.2(b) cmt. n.1.

Dupree contends that his § 846 conspiracy conviction is not

a controlled substance offense because § 4B1.2(b)’s “controlled sub-

stance offense” definition unambiguously excludes inchoate of-

fenses. Because the Guideline is unambiguous, he argues, we must

not defer to the commentary’s broader definition of controlled sub-

stance offense to include inchoate offenses. 3 We agree. We begin

3

This question has sharply divided our fellow circuits. The Third and Sixth

Circuits sitting en banc, along with panels of the Fourth and D.C. Circuits,

have held that inchoate crimes do not qualify as controlled substance offenses

under the Guideline. See United States v. Campbell, 22 F.4th 438, 440 (4th Cir.

2022) (“Because the Sentencing Guidelines’ definition of a ‘controlled sub-

stance offense’ does not include an attempt crime, we must vacate the en-

hanced sentence[.]”); accord United States v. Nasir, 17 F.4th 459, 468–72 (3d

Cir. 2021) (en banc); United States v. Havis, 927 F.3d 382, 386–87 (6th Cir.

2019) (en banc); United States v. Winstead, 890 F.3d 1082, 1090–91 (D.C. Cir.

2018). Panels of the First, Second, Seventh, and Ninth Circuits, and the Eighth

Circuit sitting en banc, have reached the opposite conclusion. See United

States v. Smith, 989 F.3d 575, 585 (7th Cir.) (“We conclude[] that § 4B1.2’s Ap-

plication Note 1 is authoritative and that ‘controlled substance offense’ in-

cludes inchoate offenses.”), cert. denied, 142 S. Ct. 488 (2021); United States v.

Lewis, 963 F.3d 16, 21–24 (1st Cir. 2020); United States v. Richardson, 958 F.3d

151, 154–55 (2d Cir. 2020); United States v. Crum, 934 F.3d 963, 965–67 (9th

Cir. 2019); United States v. Mendoza-Figueroa, 65 F.3d 691, 694 (8th Cir. 1995).

But the First and Ninth Circuit panels suggested their decisions might have

been different if they were not constrained by their circuits’ prior precedent.

See Lewis, 963 F.3d at 25 (“None of this is to say how we would rule today

were the option of an uncircumscribed review available. That the circuits are

split suggests that the underlying question is close.”); Crumb, 934 F.3d at 966

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with the framework the Supreme Court has established for deter-

mining how the Guidelines’ commentary impacts the interpreta-

tion of the Guidelines. We then use that framework to interpret

§ 4B1.2(b). We conclude by applying our ruling to Dupree’s case.

A. The Commentary Cannot Expand the Interpretation of Un-

ambiguous Sentencing Guidelines.

The Supreme Court examined whether courts are bound by

the commentary’s interpretation of the Guidelines in Stinson v.

United States, 508 U.S. 36 (1993). The Court began by explaining

that “[t]he Sentencing Reform Act of 1984 . . . created the Sentenc-

ing Commission . . . and charged it with the task of establishing

sentencing policies and practices for the Federal criminal justice

system.” Id. at 40–41 (alterations adopted) (internal quotation

marks and citations omitted). “The Sentencing Commission prom-

ulgate[d] the [G]uidelines by virtue of an express congressional del-

egation of authority for rulemaking” just as federal administrative

agencies promulgate regulations. Id. at 44. The Court then analo-

gized the Guidelines’ commentary to “an agency’s interpretation

of its own legislative rules.” Id. at 45 (“[T]he [G]uidelines are the

equivalent of legislative rules adopted by federal agen-

cies. . . . [T]his type of commentary is akin to an agency’s

(“If we were free to do so, we would follow the Sixth and D.C. Circuits’ lead.”).

The Fifth Circuit recently vacated its decision holding that a defendant’s con-

spiracy convictions qualified as controlled substance offenses and will address

this question en banc. See United States v. Vargas, 35 F.4th 936, 938–940 (5th

Cir.), reh’g en banc granted, opinion vacated 45 F. 4th 1083 (5th Cir. 2022).

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interpretation of its own legislative rules.”). Guided by this anal-

ogy, the Court determined that the commentary should receive the

same level of deference given to an agency’s interpretation of its

own rules, deference the Court first described in Bowles v. Semi-

nole Rock & Sand Co. Id.

Seminole Rock instructed that when considering how to

treat an issuing agency’s interpretation of a regulation, a court ini-

tially should consider whether “the meaning of the [regulation] is

in doubt.” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414

(1945). If the meaning is in doubt—if the regulation is ambigu-

ous—the court can then consider the issuing agency’s interpreta-

tion of the regulation. Id. At that point, the court should afford the

agency’s construction of its own regulation “controlling weight”

unless it is “plainly erroneous or inconsistent with the regulation.”

Id.

Relying on its decision in Seminole Rock, in Stinson the Su-

preme Court treated the Sentencing Commission’s commentary to

the Guidelines like an agency’s interpretation of its own regulation:

“it must be given ‘controlling weight unless it is plainly erroneous

or inconsistent with’” the Guideline’s text. Stinson, 508 U.S. at 45

(quoting Seminole Rock, 325 U.S. at 414). The Court explained that

the Sentencing Commission could resort to the commentary to in-

terpret the Guidelines only “if the [G]uideline which the commen-

tary interprets will bear the construction.” Id. at 46. When the

“commentary and the [G]uideline it interprets are inconsistent in

that following one will result in violating the dictates of the other,

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the Sentencing Reform Act itself commands compliance with the

[G]uideline.” Id. at 43.

Four years after Stinson, the Supreme Court reaffirmed

Seminole Rock in Auer v. Robbins, 519 U.S. 452 (1997). In Auer,

the Court concluded that the Secretary of Labor’s interpretation of

a regulation issued by the Department of Labor was “controlling”

because it was not “plainly erroneous or inconsistent with the reg-

ulation.” Id. at 461 (internal quotation marks omitted).

A few years ago, the Supreme Court revisited Auer defer-

ence4 and clarified the proper application of the doctrine. In Kisor

v. Wilkie, the Supreme Court examined Auer deference in the con-

text of an administrative agency’s (the Department of Veterans Af-

fairs (VA)) interpretation of one of its regulations. 139 S. Ct. 2400,

2408–09 (2019). The Court reaffirmed Auer’s “important role in

construing agency regulations” while also “reinforc[ing] its limits”

and “cabin[ing] . . . its scope.” Id. at 2408. It explained that Auer

was “rooted in a presumption . . . that Congress would generally

want the agency to play the primary role in resolving regulatory

ambiguities.” Id. at 2412. Therefore, the Court clarified, “only if a

regulation is genuinely ambiguous” should Auer deference be

4

Since the Supreme Court’s decision in Auer, courts have referred to the doc-

trine of deference to an administrative agency’s interpretation of its regula-

tions as both “Seminole Rock” and “Auer” deference. For consistency, we use

Auer throughout this opinion.

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applied. Id. at 2414. To determine whether ambiguity exists, courts

first “must exhaust all the ‘traditional tools’ of construction.” Id. at

2415 (citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467

U.S. 837, 843 n.9 (1984)). “If uncertainty does not exist” after apply-

ing these tools, “there is no plausible reason for deference.” Id.

The Supreme Court did not overrule Stinson in Kisor, and

Kisor did not concern the Sentencing Guidelines. So our task is to

figure out how to read Stinson and Kisor together. And we think

the only way to harmonize the two cases is to conclude that Kisor’s

gloss on Auer and Seminole Rock applies to Stinson.

In Kisor, the Supreme Court answered the question whether

it was overruling Auer or Seminole Rock with a firm “no.” Id. at

2408. But the Court nonetheless took to task Seminole Rock’s

“most classic formulation of the [deference] test,” which asks

“whether an agency’s construction is ‘plainly erroneous or incon-

sistent with the regulation.’” Id. at 2415 (quoting Seminole Rock,

325 U.S. at 414). The majority criticized this language “in a vac-

uum,” as suggestive of “a caricature of the doctrine, in which def-

erence is reflexive.” Id. (internal quotation marks omitted). Instead,

the majority said, courts must consider the nature and context of

the agency interpretation, and “[f]irst and foremost, a court should

not afford Auer deference unless the regulation is genuinely ambig-

uous.” Id. The Court declared, in no uncertain terms, that “[i]f un-

certainty does not exist, there is no plausible reason for deference.

The regulation then just means what it means—and the court must

give it effect, as the court would any law.” Id.

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We fail to see how this clarification does not apply to the

Sentencing Guidelines. Stinson adopted word for word the test the

Kisor majority regarded as a “caricature,” so the continued me-

chanical application of that test would conflict directly with Kisor.

Even if Stinson’s application of the test was more considerate of the

nature and context of the Sentencing Commission’s commentary

to the Guidelines 5 than other cases were in applying the test to

agency interpretations of regulations, if “uncertainty does not ex-

ist” in the Guideline, Kisor says we may not defer.

Kisor did not distinguish between an agency’s interpretation

of its own regulations and the commentary’s interpretation of the

Guidelines. This is perhaps unsurprising given that Kisor con-

cerned the VA’s interpretation of a VA regulation rather than the

5

In Stinson, the Supreme Court discussed different analogies to the legal force

of Guidelines commentary, the unique role of the Sentencing Commission,

and how the commentary is promulgated. See Stinson, 508 U.S. at 43–46. In

her concurrence, Judge Grant relies on some of this discussion to support her

argument that because the Sentencing Commission is different from adminis-

trative agencies and the Guidelines commentary is different from these other

agencies’ rule interpretation, Kisor’s gloss on Auer deference does not apply.

See, e.g., Grant Concurrence at 5–7 (citing Stinson’s observation that an anal-

ogy to an agency’s construction of a federal statute that it administers is inap-

posite). We note that much of this discussion led to Stinson’s conclusion that

“[a]lthough the analogy is not precise because Congress has a role in promul-

gating the guidelines, we think the Government is correct in suggesting that

the commentary be treated as an agency’s interpretation of its own legislative

rule.” Stinson, 508 U.S. at 44. And the discussion that followed did not alter

this conclusion.

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Sentencing Commission’s commentary to the Guidelines. But Ki-

sor had no need to make this distinction because Stinson had in-

structed “that the commentary be treated as an agency’s interpre-

tation of its own legislative rule.” Stinson, 508 U.S. at 44. Consistent

with Stinson’s instruction about how the Guidelines commentary

should be treated, a footnote to the historical background section

in Kisor included Stinson alongside administrative agency cases in

a list of “(pre–Auer) decisions applying Seminole Rock deference.”

Kisor, 139 S. Ct at 2411 n.3. 6

Stinson adopted Seminole Rock’s formulation of agency def-

erence. See Stinson, 508 U.S. at 45 (“[C]ommentary is akin to an

agency’s interpretation of its own legislative rules. As we have of-

ten stated, provided an agency’s interpretation of its own regula-

tions does not violate the Constitution or a federal statute, it must

be given ‘controlling weight unless it is plainly erroneous or incon-

sistent with the regulation.’” (quoting Seminole Rock, 325 U.S. at

414)). A few years later, Auer reaffirmed the same test. Auer, 519

U.S. at 461. More recently, Kisor declined to overrule Auer and

Seminole Rock, but it “reinforce[d] [the] limits” and

6

Our dissenting and specially concurring colleagues point out that the foot-

note appeared in a section of the opinion that did not garner a majority. Dis-

sent at 10; see also Grant Concurrence at 9. They are correct about that, but

they misread our observation about the footnote. We do not read the footnote

as overruling or abrogating Stinson. Instead, we see the footnote as “[c]on-

sistent with,” supra at 12–13, our view that when deciding Kisor the Supreme

Court considered the deference question in Stinson to be no different in kind

from deference in administrative agency cases.

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“cabined . . . [the] scope” of Auer deference, with the primary rule

being no deference without ambiguity. Kisor, 139 S. Ct. at 2408.

And it took note of Stinson as one of the Court’s “legion” Seminole

Rock cases that pre-dated Auer. Id. at 2411 n.3. So it follows that

Kisor’s clarification of Auer deference applies to the Guidelines and

its commentary. The dissent argues that by applying Kisor’s clarifi-

cation to Stinson we have set aside Stinson’s command that com-

mentary “that interprets or explains a guideline is authoritative,”

unless it violates the law or is plainly erroneous. Dissent at 3–6

(quoting Stinson, 508 U.S. at 38). According to our dissenting col-

league, we have “essentially overruled Stinson.” Id. at 3; see Grant

Concurrence at 1, 9. To the contrary, we honor Stinson’s instruc-

tion to “treat[]” the commentary “as an agency’s interpretation of

its own legislative rule.” Stinson, 508 U.S. at 44.

As we have explained, when Stinson was decided, Seminole

Rock held that an agency’s interpretation of its own rule was “con-

trolling” unless it contravened the rule itself or was plainly errone-

ous. Seminole Rock, 325 U.S. at 414. Thus, Stinson’s conclusion

that the commentary is authoritative and entitled to deference is a

result of treating the commentary as an agency’s interpretation of

its own rule. To follow Stinson’s instruction to treat the commen-

tary like an agency’s interpretation of its own rule, we must apply

Kisor’s clarification of Auer deference to Stinson. We have not ig-

nored Stinson or treated it as having been overruled—rather, it di-

rects us to Seminole Rock and Auer, as clarified by Kisor.

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We agree, of course, with the dissent that “[t]he Supreme

Court doesn’t upend decades of precedent through silence.” Dis-

sent at 8. But the Supreme Court has not been silent. It has spoken

directly to the issue of whether the Guidelines and its commentary,

on the one hand, and an agency’s rules and its interpretation of

those rules, on the other hand, should be treated differently and

concluded they should be treated the same. Our conclusion today

flows not from the Supreme Court’s silence, but from its affirma-

tion that the commentary should be treated the same as the agen-

cies’ interpretations that were at issue in Seminole Rock, and now

Auer and Kisor. 7

7

Judge Luck observes that “[t]he Stinson Court found the analogy to Chevron

inapposite because commentary explains the [G]uidelines and provides con-

crete guidance as to how even unambiguous guidelines are to be applied in

practice”; from this he argues that we have adopted the deference standard

rejected in Stinson and thus effectively overruled Stinson. Dissent at 5–6 (in-

ternal quotation marks and emphasis omitted). First, this statement has no ap-

plication to the dispute before us because although “commentary may inter-

pret a guideline or explain how it is to be applied,” Stinson, 508 U.S. at 41 (al-

terations adopted) (internal quotation marks omitted), it cannot rewrite the

Guideline. To view the commentary in the way Judge Luck suggests would

allow the commentary to add to, replace, or modify a guideline—things that

Stinson expressly prohibited. Id. at 38, 46; see Havis, 927 F.3d at 386; see also

United States v. Rollins, 836 F.3d 737, 742 (7th Cir. 2016) (Guidelines commen-

tary “are interpretations of, not additions to, the Guidelines themselves; [com-

mentary] has no independent force.” (emphasis omitted)). Second, Stinson did

not outright reject Chevron deference, which indeed is similar to the defer-

ence standard now articulated in Kisor; it rejected the notion that an agency’s

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With Kisor’s refined deference scheme in mind, we turn to

whether we should defer to the commentary in Application Note

1, which would supplement § 4B1.2’s definition of “controlled sub-

stance offense” to include inchoate offenses.

B. Section 4B1.2 Unambiguously Excludes Inchoate Offenses,

So the Commentary’s Interpretation Is Not Binding.

We begin, as Kisor instructs, with the text of § 4B1.2. After

applying our traditional tools of statutory interpretation, we con-

clude that the plain language definition of “controlled substance of-

fense” in § 4B1.2 unambiguously excludes inchoate offenses.

Section 4B1.2(b), entitled “Definitions of Terms used in Sec-

tion 4B1.1,” provides:

The term “controlled substance offense” means an of-

fense under federal or state law, punishable by impris-

onment for a term exceeding one year, that prohibits

the manufacture, import, export, distribution, or dis-

pensing of a controlled substance . . . or the posses-

sion of a controlled substance . . . with intent to man-

ufacture, import, export, distribute, or dispense.

interpretation of a federal statute that it administers is akin to the commen-

tary’s interpretation of a Guideline. It was the “analogy” between an agency’s

interpretation of a statute and the commentary’s interpretation of a Guideline

that the court found “inapposite,” not the resulting deference. Stinson, 508

U.S. at 44.

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U.S. Sent’g Guidelines Manual § 4B1.2(b) (emphasis added). The

definition does not mention conspiracy or attempt or any other in-

choate crimes. The exclusion of inchoate crimes from the defini-

tion of what the term “means” is a strong indicator that the term

does not include those offenses. A “definition which declares what

a term ‘means’ excludes any meaning that is not stated.” Burgess v.

United States, 553 U.S. 124, 130 (2008) (alterations adopted) (inter-

nal quotation marks omitted); see United States v. Nasir, 17 F.4th

459, 471 (3d Cir. 2021) (en banc) (“The guideline does not even

mention inchoate offenses. That alone indicates it does not include

them.”); United States v. Winstead, 890 F.3d 1082, 1091 (D.C. Cir.

2018) (“Section 4B1.2(b) presents a very detailed ‘definition’ of con-

trolled substance offense that clearly excludes inchoate offenses.”).

We agree with the en banc Sixth Circuit’s observation, in overrul-

ing its prior precedent to the contrary, that “[t]o make attempt

crimes a part of § 4B1.2(b), the Commission did not interpret a term

in the guideline itself—no term in § 4B1.2(b) would bear that con-

struction.” United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019)

(en banc). Instead, the Commission purported “to add an offense

not listed in the [G]uideline.” Id. (emphasis in original).

The lack of any reference to conspiracy or attempt crimes

stands in stark contrast to the other definition found in § 4B1.2. In

defining “crime of violence,” the Sentencing Commission included

“any offense . . . that has as an element the use, attempted use, or

threatened use of physical force against the person of another.”

U.S. Sent’g Guidelines Manual § 4B1.2(a)(1) (emphasis added).

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19-13776 Opinion of the Court 18

With this definition, the Sentencing Commission demonstrated

that it knew how to include attempted conduct in addition to the

conduct itself when it meant to do so. A drafting body such as the

Sentencing Commission “generally acts intentionally when it uses

particular language in one section . . . but omits it in another.”

Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383, 391 (2015). This

“interpretive cannon . . . applies with particular force” where the

provision that includes specific language is in “close proximity” to

the provision that excludes it. Id. at 392. That is true here. The def-

initions of “crime of violence”—which includes offenses involving

the use of physical force as well as the attempted use of physical

force—and “controlled substance offense”—which does not in-

clude attempt at all—are sister subsections within the same Guide-

line provision. Because of their proximity, we must infer that the

Sentencing Commission intentionally excluded inchoate offenses

from the definition of controlled substance offense.8 See Nasir, 982

F.3d. at 471 (explaining that because § 4B1.2(b) “does not even

mention inchoate offenses,” but § 4B1.2(a) “explicitly include[s] in-

choate crimes” in its definition of “crime of violence,” § 4B1.2(b)

unambiguously omits inchoate crimes).

The government tries to inject ambiguity into § 4B1.2(b) by

pointing to the word “prohibits” in the definition of “controlled

8

We acknowledge that § 4B1.2(a)(1)’s definition of crime of violence includes

attempted offenses but not conspiracy offenses. Nonetheless, the crime of vi-

olence definition demonstrates that the Sentencing Commission knew how

to—and of the need to—address inchoate crimes explicitly.

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19-13776 Opinion of the Court 19

substance offense.” See U.S. Sent’g Guidelines Manual § 4B1.2(b)

(“The term ‘controlled substance offense’ means an offense . . . that

prohibits . . . .”). “Prohibit,” the government contends, has multiple

meanings that make it ambiguous whether controlled substance

offenses include inchoate crimes. Because § 4B1.2(b) is ambiguous,

the government argues, we must defer to the commentary in Ap-

plication Note 1 and add inchoate crimes to the definition of “con-

trolled substance offense.” The government relies on United States

v. Lange, in which we interpreted “prohibit” in § 4B1.2(b). 862 F.3d

1290, 1295 (11th Cir. 2017). Looking to dictionary definitions, we

observed that “prohibit” could mean, among other things, “to for-

bid by a command, statute, law or authority,” or “to prevent, hin-

der.” Id. (alterations adopted) (internal quotation marks omitted).

Rejecting that the meaning was confined to the narrower definition

of “prohibit”—to forbid by law—we concluded that “prohibit” also

meant to prevent or hinder because of Application Note 1’s inclu-

sion of aiding and abetting, conspiracy, and attempt. Id. (“Because

Application Note 1 tells us that an offense prohibits the manufac-

ture of a controlled substance when it prohibits aiding and abetting,

conspiring, and attempting that manufacture, . . . we must not con-

strue ‘prohibit’ too narrowly.” (internal citation omitted)). There

are two problems with the government’s reliance on Lange.

The first problem, of course, is that in Lange we considered

the commentary in Application Note 1 to be “a binding interpreta-

tion of the term controlled substance offense” based on Smith and

then proceeded to interpret the Guideline light of the commentary.

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Id. at 1294 (internal quotation marks omitted). So, if Smith is

wrong, then Lange is, too.

The second, more fundamental, problem is that “prohibit”

cannot mean “to prevent [or] hinder” in the context of § 4B1.2(b)

because under that definition there would be no logical limit to the

conduct that would come under the controlled substance offense

umbrella. Logically, laws criminalizing many different types of

conduct, even conduct not involving drugs, prevent or hinder the

manufacture or distribution of drugs. We find the Fourth Circuit’s

articulation of this problem persuasive. In United States v. Camp-

bell, the Fourth Circuit rejected the government’s argument that

“prohibit” could mean “to prevent or hinder.” 22 F.4th 438, 448

(4th Cir. 2022) (alteration adopted) (internal quotation marks omit-

ted). The court explained that “[i]nterpreting ‘prohibits’ to include

anything that makes the outlawed conduct more likely to occur

would sweep into criminal statutes a vast swath of conduct based

on a secondary dictionary definition.” Id. And this would result in

“controlled substance offense” including such unrelated conduct as

“money laundering” and “loitering” because § 4B1.2(b) would have

“no logical endpoint.” Id. at 448–49. We agree with the Fourth Cir-

cuit that the “to prevent or hinder” definition of prohibit does not

work in the context of § 4B1.2(b), so it cannot render § 4B1.2(b)

ambiguous.

Adopting the broader definition of “prohibit” would lead to

results that not only are unworkable, but also would contravene

Supreme Court precedent. There can be no doubt that laws

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19-13776 Opinion of the Court 21

forbidding the simple possession of controlled substances prevent

or hinder the controlled substance offense of possession with intent

to distribute those substances. Under this broader definition of

“prohibit,” simple possession would meet the definition of a con-

trolled substance offense. But that cannot be right, because the Su-

preme Court has held the opposite—that a conviction for simple

possession does not qualify as controlled substance offense. Salinas

v. United States, 547 U.S. 188, 188 (2006). “Prohibit,” then, must

have the narrower, ordinary meaning it carries in the criminal law

context: “to forbid by law.”

We conclude that the text of § 4B1.2(b) unambiguously ex-

cludes inchoate crimes. Under Kisor, that concludes our analysis,

and we have no need to consider, much less defer to, the commen-

tary in Application Note 1. 9

9

Today we overrule our prior precedent holding that the commentary in Ap-

plication Note 1 constitutes a binding interpretation of § 4B1.2(b). Both Weir

and Smith are incongruous with Kisor. In Weir, we held “that a conviction of

conspiracy to possess with intent to distribute marijuana is a ‘controlled sub-

stance offense’ for purposes of career criminal sentence enhancement,” but we

failed even to acknowledge that the commentary supplemented the plain text

of § 4B1.2(b) by adding inchoate crimes. Weir, 51 F.3d at 1031. Our failure to

examine the plain text of § 4B1.2(b) to determine whether we owed deference

to the commentary was irreconcilable with Stinson. Shortly after Weir, we

decided Smith, which required us to consider whether a defendant’s “prior

state conviction for attempted possession with intent to deliver cocaine” con-

stituted a controlled substance offense under § 4B1.2(b). Smith, 54 F.3d at 691.

This time, we acknowledged Stinson’s role in determining whether we should

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19-13776 Opinion of the Court 22

C. Dupree Is Ineligible for the Career Offender Enhancement.

All that remains is to apply our holding to Dupree’s case.

Dupree concedes that he meets two of § 4B1.1(a)’s requirements

for the career offender enhancement, so application of the en-

hancement turns on whether his “instant offense of conviction” is

“a controlled substance offense.” U.S. Sent’g Guidelines Manual

§ 4B1.1(a). Under today’s holding, Dupree’s conviction for conspir-

acy to possess with intent to distribute heroin and cocaine in viola-

tion of § 846 is not a controlled substance offense because the plain

text of § 4B1.2(b) unambiguously excludes inchoate crimes.

Dupree must be resentenced without application of the career of-

fender enhancement.

defer to the commentary’s addition of inchoate crimes to the definition of con-

trolled substance offense. Id. at 693. We concluded that deference was appro-

priate because the commentary was not “inconsistent with, or a plainly erro-

neous reading of, sections 4B1.1 or 4B1.2.” Id. This conclusion was incorrect

at the time. Under Stinson, deference to the commentary was appropriate only

“if the [G]uideline which the commentary interprets [would] bear the con-

struction.” Stinson, 508 U.S. at 46. Because§ 4B1.2(b)’s text excluded inchoate

crimes, it could not bear the commentary’s addition of those crimes. But re-

gardless of whether Smith was wrong at the time, it is now. Its analysis is in-

compatible with Kisor, which requires courts to empty the “legal toolkit” be-

fore concluding that a rule is “genuinely ambiguous.” Kisor, 139 S. Ct. at 2415.

Accordingly, to the extent our prior decisions held that inchoate crimes are

included in the definition of “controlled substance offenses” in § 4B1.2(b), we

overrule those decisions today.

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19-13776 Opinion of the Court 23

IV. CONCLUSION

The definition of “controlled substance offense” in

§ 4B1.2(b) of the Sentencing Guidelines does not include inchoate

offenses like conspiracy and attempt. To the extent that this hold-

ing conflicts with our prior precedent, that precedent is overruled.

The district court erred by sentencing Dupree as a career offender

because his conspiracy conviction under 21 U.S.C. § 846 was not a

controlled substance offense. We vacate Dupree’s sentence and re-

mand for resentencing consistent with this opinion.

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19-13776 WILLIAM PRYOR, C.J., Concurring 1

WILLIAM PRYOR, Chief Judge, concurring:

I join the majority opinion in full because it correctly ex-

plains the effect that the decision in Kisor v. Wilkie, 139 S. Ct. 2400

(2019), has on our precedent United States v. Weir, 51 F.3d 1031

(11th Cir. 1995). I write separately to bring attention to a common

misconception about the United States Sentencing Commission

that has arisen in debates over the relationship between Kisor and

Stinson v. United States, 508 U.S. 36 (1993). Courts and commen-

tators tend to justify treating commentary as less authoritative than

the guidelines in part on the ground that “[u]nlike the Guidelines

themselves, . . . commentary to the Guidelines never passes

through the gauntlets of congressional review or notice and com-

ment.” United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019) (en

banc). But their premise is mistaken. Unlike most agency interpre-

tive rules, Guidelines commentary ordinarily goes through the

same notice-and-comment and congressional review procedures as

substantive Guideline revisions. I agree with the majority that we

are bound by Stinson to treat the Guidelines and commentary dif-

ferently despite this similarity. But in the light of our decision today

and others like it, the Commission could shore up the authority of

its commentary without substantially modifying its practice by

moving what normally goes in the commentary to the main text of

the Guidelines in future revisions.

The Stinson Court held that the Sentencing Guidelines com-

mentary should “be treated as an agency’s interpretation of its own

legislative rule.” 508 U.S. at 44. Administrative agencies usually

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19-13776 WILLIAM PRYOR, C.J., Concurring 2

issue their “legislative rules” through a notice-and-comment pro-

cedure but need not use that procedure for issuing interpretive

rules. See 5 U.S.C. § 553(b); id. § 553(b)(A). Likewise, the Sentenc-

ing Commission must follow the notice-and-comment procedure

before amending the Guidelines and must present the amendments

to Congress for review. See 28 U.S.C. § 994(p), (x). But there is no

similar statutory requirement for commentary on the Guidelines:

the Commission can modify the commentary without the proce-

dural safeguards Congress requires for Guideline changes.

The conventional wisdom reasons that, in the same way

that an agency cannot modify a legislative rule without notice and

comment by adopting an unreasonable “interpretation” of an un-

ambiguous existing rule, Kisor, 139 S. Ct. at 2415, the Commission

cannot dodge the notice-and-comment and congressional review

safeguards by creating unreasonable “commentary” on its own un-

ambiguous guidelines. See, e.g., Havis, 927 F.3d at 386–87. Indeed,

concerns about an end-run around notice and comment have led

critics to question whether any deference to agency interpretation

is appropriate. See, e.g., Kisor, 139 S. Ct. at 2434 (Gorsuch, J., con-

curring in the judgment). But the conventional wisdom misses

that, in practice, the Commission ordinarily uses the same proce-

dure to revise the commentary as it does to revise the Guidelines.

The application note at issue is an apt example. The com-

mentary that specifies that section 4B1.2 applies to inchoate con-

trolled-substance offenses was present in a different form in the

original manual that went through notice and comment and

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19-13776 WILLIAM PRYOR, C.J., Concurring 3

submission to Congress, and its current form was adopted by an

amendment that also included guideline revisions and was sent to

Congress for review. See United States Sentencing Guidelines

Manual § 4B1.2 cmt. n.2 (Oct. 1987); Amendments to the Sentenc-

ing Guidelines for United States Courts, 54 Fed. Reg. 21348, 21379

(May 17, 1989).

Indeed, “most amended guideline commentary now under-

goes notice and comment and submission to Congress.” John S.

Acton, Note, The Future of Judicial Deference to the Commentary

of the United States Sentencing Guidelines, 45 HARV. J. L. & PUB.

POL’Y 349, 357 (2022). To be sure, the Commission’s rules of pro-

cedure and the underlying statutes do not require that commen-

tary revisions undergo the same process as Guidelines revisions.

See 28 U.S.C. § 994(x); U.S. SENT’G COMM’N, RULES OF PRACTICE &

PROCEDURE 4.3 (2016). But, except for technical edits, the Commis-

sion ordinarily sends its commentary revisions through the same

process as its Guideline revisions. See Acton, supra, at 358 (citing

recent examples).

In the light of this practice, the difference between the

Guidelines and the commentary ordinarily boils down to labels and

formatting. So, our holding today that Kisor requires courts to give

less deference to the Guidelines commentary need not constrain

the Commission as much as it may appear. If, for example, the

commentary’s inclusion of inchoate crimes were added—through

the same process the Commission earlier employed—to the defini-

tion provided in the main text of section 4B1.2, we would be bound

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19-13776 WILLIAM PRYOR, C.J., Concurring 4

to respect it. In the meantime, we are bound by Stinson’s holding

that they are of different levels of authority.

As an administrative agency within the judicial branch, the

United States Sentencing Commission has a “unique composition

and responsibilities.” Mistretta v. United States, 488 U.S. 361, 384

(1989). And unsurprisingly, it does not always operate in the same

manner as an executive agency. Federal judges, above all officials,

should not assume that it does. Judicial decisions should respect

how the Commission, in fact, performs its work lest we create

needless uncertainty about the important duty of sentencing crim-

inals.

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19-13776 GRANT, J., Concurring in the Judgment 1

GRANT, Circuit Judge, concurring in the judgment:

The majority is certainly correct that a conspiracy crime

cannot qualify as a “controlled substance offense” under § 4B1.2(b).

The commentary defining that term to include inchoate offenses is

simply inconsistent with the guideline text. But we are still bound

by Stinson, and the majority needlessly abandons that decision to

get to today’s result.

I understand why our Court and others have thought it

necessary to at least consider whether Stinson’s deferential posture

to the Guidelines commentary still holds after Kisor. But in

answering that question, we should not—cannot—rewrite the

precedents to better match our view of first principles or even to

create a more coherent body of law. Instead, “we must apply

Supreme Court precedent neither narrowly nor liberally—only

faithfully.” United States v. Johnson, 921 F.3d 991, 1001 (11th Cir.

2019) (en banc). If Stinson is to be overruled, it is up to the Supreme

Court to do it. I respectfully concur only in the judgment.

I.

Our duty to faithfully apply precedent continues even when

(some of) the reasoning for an old Supreme Court decision has

been undermined by a new case. See Rodriguez de Quijas v.

Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). We leave to

that Court “the prerogative of overruling its own decisions.” Id.

So those decisions remain binding precedent until the Supreme

Court sees “fit to reconsider them, regardless of whether

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19-13776 GRANT, J., Concurring in the Judgment 2

subsequent cases have raised doubts about their continuing

vitality.” Hohn v. United States, 524 U.S. 236, 252–53 (1998). Here,

the controlling precedent is Stinson v. United States, 508 U.S. 36

(1993). And as a matter of vertical stare decisis, we are bound to

follow that case unless and until the Supreme Court instructs us to

do otherwise.

Stinson’s approach to deference was firm. It held, in

reversing this Court’s more searching approach, that the

Guidelines commentary is “authoritative unless it violates the

Constitution or a federal statute, or is inconsistent with, or a plainly

erroneous reading of, that guideline.” Stinson, 508 U.S. at 38. The

commentary, Stinson informs us, “provides concrete guidance as

to how even unambiguous guidelines are to be applied in

practice”—even when that application “may not be compelled by

the guideline text.” Id. at 44, 47 (emphasis added); see also United

States v. Cingari, 952 F.3d 1301, 1308 (11th Cir. 2020).

The majority departs from Stinson. It does so in an attempt

to conform that opinion to Kisor v. Wilkie, which either tightened

or clarified (depending on whom you ask) the deference required

for an administrative agency’s interpretation of its own regulation.

139 S. Ct. 2400 (2019). For decades, the Supreme Court had

required courts to give “controlling weight” to an agency’s

interpretation of its own regulations unless the interpretation was

“plainly erroneous or inconsistent with the regulation.” Bowles v.

Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); Auer v.

Robbins, 519 U.S. 452, 461 (1997). But Kisor cautioned that this

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19-13776 GRANT, J., Concurring in the Judgment 3

approach might be overly “reflexive” and imposed the threshold

requirement that the majority now imports into Stinson: a court

may not defer to an agency’s interpretation of its own legislative

rule unless that rule remains genuinely ambiguous after the court

has exhausted all the traditional tools of construction. See 139

S. Ct. at 2415–18. On its own terms, this move has been both

celebrated as necessary and denigrated as insufficient. But no

matter what one thinks of Kisor, the majority extends rather than

follows that precedent by applying it to Stinson and the Sentencing

Guidelines.

Two theories could justify this shift. One is that we, as a

Court, have always gotten Stinson wrong, and that Kisor opened

our eyes to our longstanding misreading of that case. The other is

that Kisor partially overruled Stinson, changing the deference

owed to the Sentencing Guidelines commentary. Though it is not

entirely clear which of these theories the majority adopts, neither

stands up to scrutiny.

First, a fair reading of Stinson shows that we have not been

misinterpreting the opinion: it does not require—or even allow—

an ambiguity analysis before consulting the commentary. To the

contrary, Stinson explicitly rejected a search for ambiguity; it found

an analogy to Chevron “inapposite” because the commentary,

“unlike a legislative rule, is not the product of delegated authority

for rulemaking, which of course must yield to the clear meaning of

a statute.” Stinson, 508 U.S. at 44 (citing Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n.9

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19-13776 GRANT, J., Concurring in the Judgment 4

(1984)). The role of the Guidelines commentary is different. It

“explains the guidelines and provides concrete guidance as to how

even unambiguous guidelines are to be applied in practice.” Id.

(emphasis added). So Stinson considered and expressly rejected the

key limitation on deference that Kisor requires. 1

That leaves the possibility that Kisor overruled Stinson—or

at the very least overruled Stinson’s broad deference to the

commentary. The majority initially acknowledges that this did not

happen: “The Supreme Court did not overrule Stinson in Kisor,

and Kisor did not concern the Sentencing Guidelines.” Maj. Op. at

1 One source of confusion in this area may be a tension within Kisor between

stare decisis and the articulation of new limits on Seminole Rock. On its own

terms, Kisor is framed as reinforcing limits “inherent” in Seminole Rock rather

than treading new ground. See 139 S. Ct. at 2415 & n.4. This framing is con-

troversial; many have argued that Kisor instead transformed Seminole Rock’s

framework. See, e.g., Kisor, 139 S. Ct. at 2443 (Gorsuch, J., concurring in the

judgment) (arguing that the majority reshaped Seminole Rock in “new” ways);

id. at 2448 (Kavanaugh, J., concurring in the judgment) (noting that the ma-

jority clarified and narrowed Seminole Rock); Ronald A. Cass, The Umpire

Strikes Back: Expanding Judicial Discretion for Review of Administrative Ac-

tions, 73 Admin. L. Rev. 553, 568 (2021) (arguing that the Kisor factors “dra-

matically alter the Auer test”); Jeffrey A. Pojanowski, Neoclassical Administra-

tive Law, 133 Harv. L. Rev. 852, 856 (2020) (describing Kisor as “reformulat-

ing” Seminole Rock to make it for most purposes “practically indistinguishable

from the approach recommended by its critics”); Aditya Bamzai, Delegation

and Interpretive Discretion: Gundy, Kisor, and the Formation and Future of

Administrative Law, 133 Harv. L. Rev. 164, 190 (2019) (arguing that Kisor “all

but collapses” Seminole Rock deference into Skidmore deference). But setting

this debate about Kisor aside, Stinson’s overt rejection of a threshold ambigu-

ity analysis forecloses an analogous debate for Stinson.

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19-13776 GRANT, J., Concurring in the Judgment 5

11. But as the opinion goes on, it effectively disregards its earlier

observation, arguing that Stinson’s embrace of deference must be

understood as a “caricature” of Seminole Rock that cannot survive

Kisor. Maj. Op. at 11–12 (quoting Kisor, 139 S. Ct. at 2415).

The key error that drives this analysis is treating Stinson and

Seminole Rock as if they are interchangeable. They are not.2

Stinson’s doctrine was unique because the Sentencing Commission

is unique. To start, it is not a traditional administrative agency—

the Commission is “judicial in nature” while “the role of other

federal agencies is typically executive.” United States v. Moses, 23

F.4th 347, 355 (4th Cir. 2022). And the Commission promulgates

guidelines, not ordinary administrative rules. That distinction is

fundamental. Administrative rules exist “not just to inform and

guide but also to regulate the broad range of people covered by the

particular agency’s jurisdiction.” Id. The Guidelines, on the other

hand, guide courts—they “do not bind or regulate the primary

conduct of the public.” Mistretta v. United States, 488 U.S. 361, 396

(1989).

2 Others have also concluded that Stinson and Seminole Rock are distinct.

See, e.g., United States v. Moses, 23 F.4th 347, 356 n. (4th Cir. 2022); United

States v. Riccardi, 989 F.3d 476, 490 (6th Cir. 2021) (Nalbandian, J., concurring

in part and in the judgment). But the majority is not the first court to make

the error of conflating Stinson and Seminole Rock, either before or after Kisor.

See, e.g., Riccardi, 989 F.3d at 485; United States v. Winstead, 890 F.3d 1082,

1090 (D.C. Cir. 2018).

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19-13776 GRANT, J., Concurring in the Judgment 6

Stinson respected and even highlighted this distinction. The

Supreme Court acknowledged that the text of the Sentencing

Reform Act explicitly referenced the commentary to the

Guidelines and determined that it was “binding on the courts,” just

like the Guidelines. Stinson, 508 U.S. at 41–42 (citing 18 U.S.C.

§ 3553(b)). 3 Only after offering those background principles did it

consider “[d]ifferent analogies” that had been “suggested as helpful

characterizations of the legal force of commentary.” Id. at 43. And

only after rejecting analogies to both legislative history and

Chevron did the Court cite to Seminole Rock. Id. at 44–45. Even

then, when comparing the commentary to an agency’s

interpretation of its own regulation, the Court stressed that the

analogy was “not precise.” Id. at 44. One reason? Because

“Congress has a role in promulgating the guidelines”—specifically

a six-month statutory period during which that body can review

any changes to the Guidelines before they take effect. Id.; Id. at 41

(citing 28 U.S.C. § 994(p)). And though Stinson did not mention it,

the Sentencing Commission has unique appointment

3 United States v. Booker held that this portion of the Sentencing Act was un-

constitutional for reasons unrelated to the commentary. 543 U.S. 220, 245

(2005). More broadly, Booker held that neither the commentary nor the

Guidelines are truly speaking “binding” on courts. See United States v. Henry,

1 F.4th 1315, 1320 (11th Cir. 2021). But for our purposes, the point is that the

Stinson Court cared that Congress had instructed courts to consider the com-

mentary.

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requirements, including a minimum number of judges, political

diversity, and so on. See 28 U.S.C. § 991.

Perhaps in response to the Commission’s unique mission

and makeup, Stinson went beyond ordinary principles of

administrative law. For one, it allowed the Commission to

effectively overrule judicial interpretations of the Guidelines:

“prior judicial constructions of a particular guideline cannot

prevent the Commission from adopting a conflicting

interpretation.” Stinson, 508 U.S. at 46. In fact, the Court explicitly

endorsed using amendments to the commentary to effect a change

in interpretation of the overall Guidelines—the Court reasoned

that “‘Congress necessarily contemplated that the Commission

would periodically review the work of the courts, and would make

whatever clarifying revisions to the Guidelines conflicting judicial

decisions might suggest.’” Id. (quoting Braxton v. United States,

500 U.S. 344, 348 (1991)). So Stinson embraced a world in which

the Commission (not the judiciary) would authoritatively resolve

disputes about the Guidelines and the commentary—and could

even reject judicial interpretations of the Guidelines by amending

the commentary. 4

4 Evidence of the Supreme Court’s preference that the Commission resolve

disputes about the Guidelines continues to this day. When the Court recently

denied certiorari to resolve a deep circuit split about the very guideline before

this Court, two Justices remarked that it is “the responsibility of the Sentencing

Commission to address this division.” See Guerrant v. United States, 142

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That is not how the Supreme Court treats ordinary

administrative agencies. The Court has never held that an agency’s

reinterpretation of its own legislative rule can override a past

judicial construction of that rule. Cf. Kisor, 139 S. Ct. at 2433

(Gorsuch, J., concurring in the judgment) (discussing lower court

holdings to that effect). So Stinson went well beyond ordinary

principles of administrative law in at least one area. And follow-on

cases applying Stinson discuss that case as if it were distinct from

Seminole Rock and Auer. See Neal v. United States, 516 U.S. 284,

293 (1996); United States v. LaBonte, 520 U.S. 751, 757 (1997); see

also John S. Acton, Note, The Future of Judicial Deference to the

Commentary of the United States Sentencing Guidelines, 45 Harv.

J.L. & Pub. Pol’y 349, 377–79 (2022). This further suggests that

Stinson hovers outside the world of ordinary administrative law.

The contrary evidence is rather thin. The majority

emphasizes that Stinson adopted the government’s suggestion that

courts should treat the commentary “as an agency’s interpretation

of its own legislative rule,” and claims that today’s extension of

Kisor honors that command. Maj. Op. at 12–14, 12 n.5; Stinson,

508 U.S. at 44. But that “command” was not without context. The

qualifications within the Stinson opinion demonstrate that the

Court did not make an unadorned, one-for-one comparison. And

even if it had, the Stinson Court could not have anticipated (and

S. Ct. 640, 640–41 (2022) (Sotomayor, J., joined by Barrett, J., respecting the

denial of certiorari).

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would not have adopted, given the other content in the opinion)

the pre-conditions for deference that would later follow. Nothing

about Stinson suggests that courts should forever index the

guidelines to any developments in administrative law, even when

such developments contradict Stinson’s own reasoning.

One last point: the footnote in Kisor that includes Stinson in

a list of sixteen pre-Auer cases “applying Seminole Rock” does not

shift the analysis. Maj. Op. at 13; Kisor, 139 S. Ct. at 2411 n.3

(plurality opinion). Any suggestion that it does amounts to an

argument by implication from a string cite in a footnote joined by

only a plurality of the Court. We can expect more from the

Supreme Court if it intends to overrule one of its own cases.

In short—both in Stinson itself and in later cases—the

Supreme Court has consistently treated Stinson’s holding as

something distinct from Seminole Rock deference. And because

this doctrine is distinct from Seminole Rock, it is not altered by

Kisor’s “gloss.” Maj. Op. at 11.

Where does that leave us? Vertical stare decisis requires that

we continue treating the commentary’s interpretation of the

Guidelines as “authoritative unless it violates the Constitution or a

federal statute, or is inconsistent with, or a plainly erroneous

reading of, that guideline.” Stinson, 508 U.S. at 38. Even if the

guideline is unambiguous. I respectfully disagree with the

majority’s choice to either rewrite or overrule Stinson.

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II.

My concern is not one of only principle. The shift in this

Circuit’s approach to the commentary will significantly alter the

district courts’ near-constant application of the Sentencing

Guidelines. I also fear that it may unsettle much of our caselaw

and lead to inappropriate sentencing disparities—frustrating one of

the Guidelines’ key purposes.

To be sure, there are serious arguments both from first

principles and from policy for extending Kisor to Stinson—or even

for overruling Stinson entirely. I do not mean to stake out a

position on what the Supreme Court should do or will do if it

ultimately revisits the question of Stinson’s scope. But a change to

Stinson deference will be disruptive—perhaps extremely so. And

that sort of disruption should be weighed by the Supreme Court as

part of its horizontal stare decisis analysis, not invited by our own

rejection of vertical stare decisis.

At a bare minimum, courts in this Circuit will now need to

perform a Kisor inquiry into whether a guideline’s text is

ambiguous before considering any commentary that interprets the

guideline. Under Stinson, commentary could help ensure that

courts agreed about a guideline’s meaning. Now, under Dupree,

courts in this Circuit will inevitably divide over whether they are

allowed to consult the commentary at all.

By way of example, consider Application Note 14(B),

commentary to U.S.S.G. § 2K2.1. The guideline applies a four-level

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enhancement whenever the defendant “used or possessed any

firearm or ammunition in connection with another felony offense;

or possessed or transferred any firearm or ammunition with

knowledge, intent, or reason to believe that it would be used or

possessed in connection with another felony offense.” U.S.S.G.

§ 2K2.1(b)(6)(B). The commentary interprets this enhancement to

apply for drug trafficking offenses where “a firearm is found in

close proximity to drugs, drug-manufacturing materials, or drug

paraphernalia.” Id. § 2K2.1 cmt. n.14(B). So it explains, or perhaps

broadens somewhat, the meaning of “used or possessed.” We have

considered this commentary and its guideline side-by-side without

any concern. See, e.g., United States v. Martinez, 964 F.3d 1329,

1335 (11th Cir. 2020).

But does it warrant Kisor deference? One of our sister

circuits has already splintered on this question. A divided panel in

the Third Circuit (which has extended Kisor to the Sentencing

Guidelines) decided after several pages of Kisor analysis that

deference was appropriate because the guideline was ambiguous.

United States v. Perez, 5 F.4th 390, 395–99 (3d Cir. 2021). Another

judge disagreed, saying that the commentary went beyond the

guideline’s “zone of ambiguity” and was “invalid as written” under

Kisor. Id. at 404, 402 (Bibas, J., concurring in the judgment)

(quotation omitted). Under the majority’s new approach, we (and

the district courts before us) will now be compelled to wrestle with

similar questions for a host of guidelines.

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Of course, disagreement between jurists is not an evil in and

of itself—sometimes the system invites it. But in enacting the

Guidelines, Congress sought to “avoid excessive sentencing

disparities.” Peugh v. United States, 569 U.S. 530, 536 (2013)

(quotation omitted); see also 28 U.S.C. § 991(b)(1)(B). Now,

similarly situated defendants may receive substantially different

sentences just because courts cannot agree whether a guideline’s

text is still sufficiently ambiguous after applying the traditional

tools of construction. These disagreements will directly

undermine the Guidelines’ purposes.

Relatedly, today’s holding runs the risk of forcing a full-scale

disruption of our Sentencing Guidelines caselaw. Virtually every

case that has applied the commentary could be considered

presumptively overruled. Thankfully, I do not read the majority

to require this approach—though it will be interesting to see

whether and how we can avoid it. 5 If the Supreme Court overrules

Stinson and tells us to reassess all caselaw applying the

commentary, then so be it. But the possibility of such sweeping

5 Kisor itself expressly denied any intent to “cast doubt on many settled con-

structions of rules.” 139 S. Ct. at 2422. So one might assume that today’s

extension of Kisor will only apply to cases of first impression. And yet, after

today’s decision, litigants who would prefer not to be bound by our caselaw

applying Stinson will no doubt argue that it has been overruled—or else urge

this Court to take the case en banc to overrule the old application of Stinson.

We will have to choose between a methodological inconsistency in our “pre-

Dupree” and “post-Dupree” cases, or an upending of our caselaw.

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consequences from today’s opinion should prompt us to tread

carefully before making that call for ourselves.

In sum, under the majority’s new approach, meaningful

disagreements about the legitimacy of previously uncontroversial

commentary are inevitable. Those disagreements will, in turn,

exacerbate the degree of sentencing discrepancies. They will also

increase the burden on this Court to provide definitive

constructions of the Guidelines. And this whole process will have

the end effect of shifting the ultimate responsibility for sentencing

policy from the Commission to the courts. That shift undermines

Congress’s intent, articulated by the Supreme Court, that these

disagreements should generally be resolved by the Commission.

III.

Of course, today’s case requires more than establishing the

standard for interpreting the commentary; we also need to apply

that standard. And though Stinson is deferential, that deference is

not absolute. If “commentary and the guideline it interprets are

inconsistent in that following one will result in violating the

dictates of the other,” the guideline must prevail. Stinson, 508 U.S.

at 43. After all, “the Sentencing Reform Act itself commands

compliance with the guideline.” Id.

This is a rare case of true incompatibility between

commentary and its underlying guideline. Section 4B1.2 already

defines the terms used in U.S.S.G. § 4B1.1. And the definition it

provides is comprehensive and clear: “‘controlled substance

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offense’ means an offense under federal or state law . . . that

prohibits the manufacture, import, export, distribution, or

dispensing of a controlled substance (or a counterfeit substance) or

the possession of a controlled substance (or a counterfeit

substance) with intent to manufacture, import, export, distribute,

or dispense.” U.S.S.G. § 4B1.2(b) (emphasis added).

The commentary expands this definition to include inchoate

offenses like attempt and conspiracy. U.S.S.G. § 4B1.2(b) cmt. 1.

Though Stinson requires that we give the commentary the benefit

of the doubt and seek to reconcile it with the guideline, I do not see

how this interpretation can stand. The majority does a good job

explaining why this piece of commentary flouts its guideline. Maj.

Op. at 16–21. I agree with that analysis and will not repeat it here.

I will, however, add some additional discussion on the

government’s failed attempt to save this commentary with creative

dictionary use. It offers that inchoate offenses can fit into the

guideline’s text if we read “prohibit” as if it actually said “hinder.”

The first level of support is said to come from Black’s Law

Dictionary which defines “prohibit” to mean: “1. To forbid by law.

2. To prevent, preclude, or severely hinder.” Black’s Law

Dictionary (11th ed. 2019). And according to the government,

inchoate offenses like attempt and conspiracy “hinder,” even if they

do not outright ban, the underlying conduct covered by the

guideline.

That is unsupportable. At the very first step, a sleight-of-

hand is necessary to transform “prevent, preclude, or severely

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hinder” into “hinder.” “Severely hinder”—particularly when

following “prevent” and “preclude”—suggests effectively banning

something, not merely impeding it. But the government elides this

crucial limitation. What’s more, a reader cannot simply pick

whatever definition she wishes from a dictionary. “Most common

English words have a number of dictionary definitions, some of

them quite abstruse and rarely intended. One should assume the

contextually appropriate ordinary meaning unless there is reason

to think otherwise.” Antonin Scalia & Bryan A. Garner, Reading

Law 70 (2012). I personally cannot think of any context where

“prohibit” naturally means “hinder” (nor does the government

provide one). But the fit here is particularly awkward. As every

lawyer and citizen knows, criminal law is not suggestive—it either

bans conduct or it allows it. In this of all contexts, we should expect

the word “prohibit” to have its most ordinary meaning—banning

something.

The government’s argument is also something of a linguistic

puzzle. It does not really argue that inchoate controlled substance

offenses themselves “hinder” the underlying conduct. For good

reason—can we really say that conspiring to commit a drug crime

hinders the commission of that drug crime? Instead, the

government seems to argue that the prosecution of these offenses

hinders drug possession. To be sure, the government’s

prosecution of an offense “hinders” its underlying conduct by

making that conduct harder to perform in practice. But the very

text of a law “prohibits” the underlying conduct. And the guideline

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doesn’t address the secondary effects of prosecution—it only looks

at what an offense “prohibits.” In effect, the government asks us

to add language shifting the guideline’s focus to the decision to

prosecute (but only for inchoate offenses).

These efforts to harmonize this guideline and its

commentary fall short. The government’s reading is not just worse

than Dupree’s—it is plainly erroneous. We have no choice but to

hold that the guideline and its commentary are flatly incompatible,

and that the enhancement does not apply to Dupree. 6

* * *

Because I would reach the same result as the majority while

continuing to apply Stinson deference, I concur only in the

judgment.

6 The narrow policy question of whether inchoate offenses should trigger this

particular guideline enhancement may eventually—and appropriately—be de-

cided by the Commission. And perhaps quite soon. The Commission has

included consideration of possible amendments to § 4B1.2’s categorical ap-

proach for “controlled substance offense” in its notice of final priorities for the

May 2023 amendment cycle. Final Priorities for Amendment Cycle, 87 Fed.

Reg. 67,756, 67,756 (Nov. 9, 2022). But the Commission cannot, on its own,

resolve the dispute about what deference courts should give to the commen-

tary. Given the burgeoning circuit split, it appears that only the Supreme

Court will be able to answer that question.

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19-13776 LUCK, J., Dissenting 1

LUCK, Circuit Judge, joined by BRANCH, Circuit Judge, dissenting:

Section 4B1.2(b) of the sentencing guidelines defines “[t]he

term ‘controlled substance offense’” as “an offense under federal or

state law, punishable by imprisonment for a term exceeding one

year, that prohibits the manufacture, import, export, distribution,

or dispensing of a controlled substance (or a counterfeit substance)

or the possession of a controlled substance (or a counterfeit sub-

stance) with intent to manufacture, import, export, distribute, or

dispense.” U.S.S.G. § 4B1.2(b). The issue in this case is whether

conspiring to possess heroin and cocaine with the intent to distrib-

ute them is a “controlled substance offense” under guideline sec-

tion 4B1.2(b).

For thirty years, the answer was yes. See United States v.

Weir, 51 F.3d 1031, 1031 (11th Cir. 1995) (“We hold that a convic-

tion of conspiracy to possess with intent to distribute marijuana is

a ‘controlled substance offense’ for purposes of career criminal sen-

tence enhancement under section 4B1.1 of the United States Sen-

tencing Guidelines.”). The guideline commentary provided that

“‘controlled substance offense’ include[d] the offenses of aiding and

abetting, conspiring, and attempting to” possess controlled sub-

stances with the intent to distribute them. U.S.S.G. § 4B1.2(b) n.1.

And, under Stinson v. United States, 508 U.S. 36 (1993), we owed

deference to the commentary as an authoritative and “‘binding in-

terpretation’ of the term ‘controlled substance offense’” because

the commentary neither ran “afoul of the Constitution” or “a fed-

eral statute,” nor was “it inconsistent with, or a plainly erroneous

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19-13776 LUCK, J., Dissenting 2

reading of,” the guidelines. United States v. Smith, 54 F.3d 690, 693

(11th Cir. 1995) (applying Stinson to the commentary in guideline

section 4B1.2).

But, today, the majority opinion answers no. Placing our

court with the minority of circuit courts, the majority opinion

holds that we must ignore the guideline commentary and finds that

conspiring to possess heroin and cocaine with the intent to distrib-

ute is not a “controlled substance offense.”

The majority opinion reaches this result, and overrules

thirty years of precedent, because, it says, Kisor v. Wilkie, 139 S.

Ct. 2400 (2019) clarified Bowles v. Seminole Rock & Sand Co., 325

U.S. 410 (1945) and Auer v. Robbins, 519 U.S. 452 (1997) and the

Kisor clarification applies to Stinson and the guidelines commen-

tary. Kisor, the majority opinion explains, clarified that commen-

tary is not authoritative, and we do not defer to it, unless the guide-

line it interprets is genuinely ambiguous.

I respectfully dissent for two reasons. First, despite what the

majority opinion says it is doing, it is not really applying Kisor’s

clarification to Stinson. Under the majority opinion’s approach,

the Kisor clarification applies to Stinson the same way a magnifying

glass applies to an ant on a sunny day—total annihilation. The ma-

jority opinion is actually applying Kisor to overrule Stinson. But

the Supreme Court didn’t overrule Stinson and we can’t overrule

a Supreme Court opinion on our own. Only the Supreme Court

can do that. Second, even if the majority opinion isn’t overruling

Stinson, the Kisor clarification doesn’t apply to Stinson.

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The Majority Opinion Applies Kisor to Abrogate Stinson

The majority opinion says that Kisor clarified Auer defer-

ence and that Kisor’s clarification applies to Stinson and the guide-

lines commentary. Maj. Op. at 11, 14. But, by applying Kisor to

Stinson, the majority opinion has essentially overruled Stinson.

Stinson’s holding couldn’t be clearer. It is in the second sen-

tence of the opinion: “We decide that commentary in the [g]uide-

lines [m]anual that interprets or explains a guideline is authoritative

unless it violates the Constitution or a federal statute, or is incon-

sistent with, or a plainly erroneous reading of, that guideline.” Stin-

son, 508 U.S. at 38. Before Stinson, “various [c]ourts of [a]ppeals

ha[d] taken conflicting positions on the authoritative weight to be

accorded to the commentary to the [s]entencing [g]uidelines.” Id.

at 40. Our court, for example, had held “that commentary to the

[g]uidelines, though ‘persuasive,’ [was] of only ‘limited authority’

and not ‘binding’ on the federal courts.” Id. at 39 (quoting United

States v. Stinson, 957 F.2d 813, 815 (11th Cir. 1992)). But the Su-

preme Court held that our “conclusion that the commentary now

being considered [was] not binding on the courts was error.” Id. at

42.

Kisor, by contrast, applies to the deference owed “to agen-

cies’ reasonable readings of genuinely ambiguous regulations.”

139 S. Ct. at 2408. There, the Supreme Court “reinforce[d] the lim-

its of Auer deference,” explaining that “a court should not afford

Auer deference unless the regulation is genuinely ambiguous.” Id.

at 2415, 2423. “If uncertainty does not exist,” the Supreme Court

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19-13776 LUCK, J., Dissenting 4

explained, “there is no plausible reason for deference” and “[t]he

regulation . . . just means what it means.” Id. at 2415.

The majority opinion reads Kisor to apply to Stinson and the

guidelines commentary. The courts, the majority opinion says,

must not afford deference to the commentary unless the guideline

it explains or interprets is genuinely ambiguous. If, after applying

all of the interpretive tools in the toolbox, uncertainty does not ex-

ist, then there is no plausible reason for deference to the commen-

tary.

The majority opinion’s new deference standard for guide-

lines commentary overturns and sets aside Stinson in two im-

portant ways. First, the default position under Stinson was that the

commentary was authoritative and the presumption was over-

come only if the interpretation or explanation violated the law or

the guideline would not bear the construction. See Stinson, 508

U.S. at 38 (holding that a comment “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 read-

ing of, that guideline” (emphasis added)). The majority opinion’s

application of Kisor to the commentary flips the presumption of

authoritativeness on its head. Under the majority opinion, the

commentary is not authoritative—it is owed no deference—unless

the guideline is genuinely ambiguous. Ambiguity must exist “[f]irst

and foremost” before the courts even consider whether to defer to

the commentary. Kisor, 139 S. Ct. at 2415.

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Second, the majority opinion’s application of Kisor to the

guidelines commentary overrules and sets aside the standard in

Stinson for when deference is owed. Under Stinson, the courts de-

fer to the commentary unless the commentary violates the law or

its reading of the guidelines is plainly erroneous or inconsistent.

508 U.S. at 38. In other words, under Stinson, guidelines commen-

tary is binding on the federal courts “if the guideline which the

commentary interprets will bear the construction.” Id. at 46.

But the majority opinion’s application of Kisor to the com-

mentary sets aside the Stinson inconsistency standard. Under the

majority opinion’s application of Kisor to the commentary, we no

longer ask whether the guideline will bear the commentary’s con-

struction. Instead, we must ask if the guideline is genuinely ambig-

uous after applying the tools in the legal toolbox. If it’s not, then,

the majority opinion says, we have no need to consider, much less

defer to, the commentary.

Critically, the majority opinion adopts the same ambiguity

standard for deference to the commentary that the Supreme Court

explicitly rejected in Stinson. As the Stinson Court explained,

“[d]ifferent analogies have been suggested as helpful characteriza-

tions of the legal force of commentary.” Id. at 43. One of the sug-

gested analogies the Supreme Court considered was Chevron def-

erence. “Under Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984),” the Court continued, “if a stat-

ute is unambiguous the statute governs; if, however, Congress’ si-

lence or ambiguity has left a gap for the agency to fill, courts must

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19-13776 LUCK, J., Dissenting 6

defer to the agency’s interpretation so long as it is a permissible

construction of the statute.” Stinson, 508 U.S. at 44 (quotations

omitted). The Stinson Court found the analogy to Chevron “inap-

posite” because “commentary explains the guidelines and provides

concrete guidance as to how even unambiguous guidelines are to

be applied in practice.” Id. (emphasis added).

In other words, Stinson deference applies to the commen-

tary even if the guideline it explains is unambiguous. Yet, the ma-

jority opinion applies Kisor to adopt the exact opposite deference

standard for the commentary—the guideline must be ambiguous

before the courts can even consider giving deference. Adopting the

standard rejected by Stinson is overturning Stinson.

The majority asserts that “Stinson did not outright reject

Chevron deference” but only rejected “the ‘analogy’ between an

agency’s interpretation of a statute and the commentary’s interpre-

tation of a [g]uideline.” Maj. Op. at 15 n.7. But the Stinson Court

explicitly noted that, under Chevron, courts must defer to an

agency’s permissible interpretation of a statute where “Congress’

silence or ambiguity has left a gap for the agency to fill.” Stinson,

508 U.S. at 44 (quotations omitted). The Court rejected this test

because commentary (unlike agency regulations interpreting stat-

utes) can “provide[] concrete guidance as to how even unambigu-

ous guidelines are to be applied in practice.” Id. (emphasis

added). The Supreme Court rejected the Chevron test. That’s the

same test the majority adopts here today.

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19-13776 LUCK, J., Dissenting 7

After applying Kisor to the guidelines commentary, the ma-

jority opinion has demolished Stinson’s holding. The majority

opinion no longer presumes that the commentary is authoritative.

And the majority opinion no longer defers to the commentary if

the guideline it interprets will bear the construction. The majority

opinion has overturned and set aside Stinson without using the o-

word or a-word. But an abrogation by any other name is still an

abrogation.

The majority opinion avoids using the o- or a-word because,

as an inferior court, we cannot overrule or abrogate a Supreme

Court decision. Only the Supreme Court can abrogate or overrule

one of its decisions—“it is [that] Court’s prerogative alone to over-

rule one of its precedents.” State Oil Co. v. Khan, 522 U.S. 3, 20

(1997); see also Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016) (same);

United States v. Hatter, 532 U.S. 557, 567 (2001) (same).

But, as the Kisor Court noted, it didn’t overrule anything.

The “only question presented” in Kisor was “whether” the Su-

preme Court “should overrule” Auer or Seminole Rock, “discard-

ing the deference they give to agencies.” Kisor, 139 S. Ct. at 2408.

The Court answered “no.” Id. And, as Chief Justice Roberts ex-

plained, the Supreme Court “took [Kisor] to consider whether to

overrule Auer and Seminole Rock. For the reasons the Court dis-

cusses . . . I agree that overruling those precedents is not war-

ranted.” Id. at 2424 (Roberts, C.J., concurring in part).

The majority insists that it is not overturning Stinson but

“honor[ing] Stinson’s instruction to ‘treat[]’ the commentary ‘as an

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19-13776 LUCK, J., Dissenting 8

agency’s interpretation of its own legislative rule.’” Maj. Op. at 14

(quoting Stinson, 508 U.S. at 44). But the majority is abandoning

the test Stinson required and adopting the test Stinson re-

jected. We are bound by the Supreme Court’s holdings until it tells

us otherwise.

Because the Supreme Court didn’t overrule Stinson in Kisor,

the Stinson deference standard to the commentary remains good

law. And so do our cases—Weir and Smith—applying Stinson def-

erence to the definition of “controlled substance offense.”

The Kisor Clarification Does Not

Apply to Stinson or the Commentary

Even putting aside the improper overruling of Stinson, the

majority opinion’s Kisor “clarification” does not apply to Stinson

and the guidelines commentary. None of the three reasons the ma-

jority opinion gives for why the Kisor “clarification” applies to Stin-

son and the commentary is persuasive.

First, the majority opinion says that the Kisor clarification

applies to Stinson because there’s no indication that Kisor distin-

guished between agency rules and the commentary to the guide-

lines. But, as the majority opinion concedes, “Kisor did not con-

cern the [s]entencing [g]uidelines.” Maj. Op. at 11. And Kisor

never mentioned the commentary or the sentencing guidelines.

The Supreme Court doesn’t upend decades of precedent through

silence. Cf. United States v. Florida, 938 F.3d 1221, 1226 n.4 (11th

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19-13776 LUCK, J., Dissenting 9

Cir. 2019) (“We do not consider the Supreme Court’s silence on an

issue that was not presented dispositive.”).

Even if we could imply something from silence, the Su-

preme Court has not been silent about the distinctions between the

guidelines commentary and agency rules. In Stinson, the Court

explained that the “[c]ommentary . . . has a function different from

an agency’s legislative rule. Commentary, unlike a legislative rule,

is not the product of delegated authority for rulemaking, which of

course must yield to the clear meaning of a statute.” Stinson, 508

U.S. at 44. “Rather, commentary explains the guidelines and pro-

vides concrete guidance as to how even unambiguous guidelines

are to be applied in practice.” Id.

And the Supreme Court has not been silent about the dis-

tinctions between the sentencing commission and administrative

agencies. “The [s]entencing [c]ommission,” the Supreme Court

has explained, “unquestionably is a peculiar institution within the

framework of our [g]overnment” with “an unusual hybrid in struc-

ture and authority.” Mistretta v. United States, 488 U.S. 361, 384,

412 (1989); see also id. at 425 (Scalia, J., dissenting) (“[H]ere we have

an anomaly beyond equal: an independent agency exercising gov-

ernmental power on behalf of a [b]ranch where all governmental

power is supposed to be exercised personally by the judges of

courts.” (footnote omitted)). Unlike with agency rules, “the sen-

tencing function long has been a peculiarly shared responsibility

among the [b]ranches of [g]overnment and has never been thought

of as the exclusive constitutional province of any one [b]ranch.” Id.

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19-13776 LUCK, J., Dissenting 10

at 390 (majority opinion). Under the Sentence Reform Act, “Con-

gress’ decision to place the [c]ommission within the [j]udicial

[b]ranch reflected Congress’ strong feeling that sentencing has

been and should remain primarily a judicial function.” Id. (quota-

tion omitted).

Second, the majority opinion says that Kisor recognized that

the commentary should be treated as an agency’s interpretation of

its own legislative rules by “includ[ing] Stinson alongside adminis-

trative agency cases in a list of ‘(pre-Auer) decisions applying Sem-

inole Rock deference.’” Maj. Op. at 13. The majority opinion

quotes from footnote three in Kisor. But footnote three is in the

part of Kisor that failed to get a majority. Chief Justice Roberts—

the deciding vote in Kisor—did not join footnote three or anything

else in that section of the opinion. And Stinson and the guidelines

are not mentioned in the parts of Kisor that Chief Justice Roberts

did join. The footnote in Stinson—which couldn’t garner a major-

ity—cannot support the majority’s position here.

Third, the majority opinion uses the transitive property to

find that the Kisor clarification applies to Stinson. “Stinson adopted

Seminole Rock’s formulation of agency deference,” the majority

opinion explains, “[s]o it follows that Kisor’s clarification of Auer

deference applies to the [g]uidelines and its commentary.” Id. at

13. In other words, because X relied on Y, and Y has been clarified

by Z, then X must also have been clarified by Z.

But the Supreme Court has rejected this kind of transitive

reasoning to alter its decisions. For example, in Evans v. Gore, 253

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U.S. 245 (1920), “Judge Walter Evans challenged Congress’ author-

ity to include sitting federal judges within the scope of a federal

income tax law that the Sixteenth Amendment had authorized a

few years earlier.” Hatter, 532 U.S. at 566. The Supreme Court

agreed with Judge Evans, holding “that the Compensation Clause

barred application of the tax to Evans, who had been appointed a

judge before Congress enacted the tax.” Id.

“A few years later,” in Miles v. Graham, 268 U.S. 501 (1925),

“the Court extended Evans, making clear that its rationale covered

not only judges appointed before Congress enacted a tax but also

judges whose appointments took place after the tax had become

law.” Hatter, 532 U.S. at 566. But “[f]ourteen years after decid-

ing Miles, th[e Supreme] Court overruled” it in O’Malley v.

Woodrough, 307 U.S. 277 (1939), although the “Court did not ex-

pressly overrule Evans itself.” Hatter, 532 U.S. at 566–67.

The Federal Circuit confronted the continued viability of

Evans in Hatter. In 1965, when Medicare was created, Congress

“required most American workers (whom Social Security covered)

to pay an additional Medicare tax.” Id. at 561. But Congress “did

not require [f]ederal [g]overnment employees (whom Social Secu-

rity did not cover) to pay that tax.” Id. “In 1982, Congress . . . ex-

tended both Medicare eligibility and Medicare taxes to all currently

employed federal employees as well as to all newly hired federal

employees.” Id. The extension “meant that (as of January 1, 1983)

all federal judges, like all other federal employees and most other

citizens, would have to contribute between 1.30% and 1.45% of

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19-13776 LUCK, J., Dissenting 12

their federal salaries to Medicare’s hospital insurance system.” Id.

at 562.

“[E]ight federal judges, all appointed before 1983, sued the

[g]overnment for ‘compensation’ in the United States Claims

Court. They argued that the 1983 law, in requiring them to pay

Social Security taxes, violated the Compensation Clause.” Id. at

564. The Federal Circuit agreed, holding that the Compensation

Clause “prevent[ed] the Government from collecting certain Med-

icare and Social Security taxes from a small number of federal

judges who held office nearly 20 years ago—before Congress ex-

tended the taxes to federal employees in the early 1980’s.” Id. at

560–61. The Federal Circuit explained that the Supreme Court had

not “expressly overrule[d] Evans,” and, “if changes in judicial doc-

trine had significantly undermined Evans’ holding, th[e Supreme]

Court itself would have overruled the case.” Id. at 567 (quotations

omitted). Because the eight judges appointed before the 1983 law

were “like Evans (involving judges appointed before enactment of

the tax), [and] not like O’Malley (involving judges appointed af-

ter enactment of the tax),” the Federal Circuit “held that Ev-

ans controlled the outcome.” Id.

The Supreme Court affirmed that the Federal Circuit did ex-

actly what it was supposed to do. The Federal Circuit, the Court

explained, “was correct in applying Evans to the instant case.” Id.

Even if the earlier precedent rested on an “increasingly wobbly,

moth-eaten foundation[],” when it comes to “continuing respect

under the doctrine of stare decisis,” the “[c]ourt of [a]ppeals was

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correct in applying that principle” because “it is th[e Supreme]

Court’s prerogative alone to overrule one of its precedents.” Khan,

522 U.S. at 20.

“If a precedent of th[e Supreme] Court has direct application

in a case, yet appears to rest on reasons rejected in some other line

of decisions, the [c]ourt of [a]ppeals should follow the case which

directly controls, leaving to th[e Supreme] Court the prerogative

of overruling its own decisions.” Rodriguez de Quijas v. Shear-

son/Am. Exp., Inc., 490 U.S. 477, 484 (1989). That is, Supreme

Court “decisions remain binding precedent until [it] see[s] fit to re-

consider them, regardless of whether subsequent cases have raised

doubts about their continuing vitality.” Hohn v. United States, 524

U.S. 236, 252–53 (1998). “[W]e are not at liberty to disregard bind-

ing case law that is so closely on point and has been only weak-

ened, rather than directly overruled, by the Supreme Court.” Fla.

League of Pro. Lobbyists, Inc. v. Meggs, 87 F.3d 457, 462 (11th Cir.

1996).

We must do to Stinson what the Federal Circuit did with

Evans—apply it even if we have doubts about its continued vitality.

Even though Kisor clarified Seminole Rock, and Stinson relied on

Seminole Rock, we must follow Stinson because it directly controls

the deference we owe to the guidelines commentary, regardless of

Stinson resting on an increasingly wobbly, moth-eaten foundation.

There’s another problem with the majority opinion’s transi-

tive precedent theory. While the Stinson Court used Seminole

Rock as an analogy to describe the deference courts owe to the

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guidelines commentary, Stinson was careful to note that “the anal-

ogy [was] not precise because,” unlike for agencies, “Congress has

a role in promulgating the guidelines.” 508 U.S. at 44. That’s why

Stinson gave more deference to the guidelines commentary than

Seminole Rock gave to an agency’s interpretation of its own regu-

lations.

Seminole Rock deference applied to an agency’s interpreta-

tion of one its regulations “if the meaning of the words used [were]

in doubt.” 325 U.S. at 413–14 (“Since this involves an interpretation

of an administrative regulation a court must necessarily look to the

administrative construction of the regulation if the meaning of the

words used is in doubt.”). But Stinson went further. The commen-

tary, Stinson said, “is authoritative” and “explains the guidelines

and provides concrete guidance as to how even unambiguous

guidelines are to be applied in practice.” Stinson, 508 U.S. at 38, 44.

Unlike in Seminole Rock, the meaning of the guideline didn’t have

to be in doubt for the commentary to be authoritative.

Also, under Seminole Rock, an agency’s interpretation of its

regulations was given “controlling weight unless it [was] plainly er-

roneous or inconsistent with the regulation.” 325 U.S. at 414. Stin-

son goes further with the guidelines commentary. Under Stinson,

the sentencing commission could amend or revise the guidelines

by amending the commentary. “Although amendments to guide-

lines provisions are one method of incorporating revisions, another

method open to the [c]ommission is amendment of the commen-

tary, if the guideline which the commentary interprets will bear the

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construction.” Stinson, 508 U.S. at 46. An agency, by contrast,

can’t amend its regulations through an interpretation. 1

1 In a footnoted afterthought, the majority opinion concludes (without any

analysis) that the commentary to guideline section 4B1.2(b) fails even under

Stinson deference—without the Kisor clarification. Maj. Op. at 22 n.9. The

majority says that, even under Stinson, the guidelines here “could not bear”

the commentary because section “4B1.2(b)’s text exclude[s] inchoate crimes.”

Id. But section 4B1.2(b)’s text does not exclude conspiracy, attempt, and aid-

ing and abetting crimes.

The sentencing commission knows how to exclude crimes in the text

of the guidelines. In guideline section 3D1.1(b)(2), the commission

“[e]xclude[d]” from the grouping rules, for example, counts of convictions for

aggravated identity theft under 18 U.S.C. section 1028A. See id. § 3D1.1(b)(2).

And, in guideline section 4A1.2(c), the commission “[e]xcluded” fish and gam-

ing violations, and hitchhiking, loitering, public intoxication, and vagrancy

convictions from being considered in computing criminal history. See id. §

4A1.2(c)(2). The text of section 4B1.2(b), by contrast, didn’t “exclude” any-

thing. See United States v. Perez, 366 F.3d 1178, 1182 (11th Cir. 2004) (“Where

the same language appears in two guidelines, it is generally presumed that the

language bears the same meaning in both. It is also generally presumed that

the disparate inclusion or exclusion of language is intentional and purposeful.”

(citation omitted)).

It’s hard to tell from the few lines in the footnote, but, essentially, the

majority opinion smuggles the Kisor ambiguity test into the Stinson deference

standard. The majority opinion reaches the conclusion that it does because it

reads section 4B1.2(b) as “unambiguously exclud[ing] inchoate offenses.” Maj.

Op. at 16. But, unlike in Kisor, ambiguity is not the test under Stinson. As the

Stinson Court explained, “commentary explains the guidelines and provides

concrete guidance as to how even unambiguous guidelines are to be applied

in practice.” 508 U.S. at 44 (emphasis added). That is, a guideline can be un-

ambiguous and we would still give deference to the commentary explaining it

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Conclusion

Court decisions are not like statutes. They are not subject

to amendment, and they are not implicitly repealed. If the Su-

preme Court wants to clarify its decisions, as it did with Seminole

Rock and Auer in Kisor, it knows how to say which decisions are

clarified. And if it wants to overrule one of its holdings, it knows

how to do that too, as it did in Hatter. But, until the Court tells us

that it is clarifying Stinson like it did for Seminole Rock and Auer,

or that it is overruling Stinson, we are bound to apply Stinson’s

holding to the guidelines commentary.

The majority opinion “think[s] the only way to harmonize”

Stinson and Kisor “is to conclude that Kisor’s gloss on Auer and

Seminole Rock applies to Stinson.” Maj. Op. at 11. That is one

way, but it is not the only way, and, more importantly, it is not

faithful to how the Supreme Court has told us to read its decisions

and providing examples of how the guideline is to be applied in practice (like

when the prior conviction is for an inchoate crime).

Because “[t]he [c]ommission . . . drafts the guidelines as well as the

commentary interpreting them, . . . we can presume that the interpretations

of the guidelines contained in the commentary represent the most accurate

indications of how the [c]ommission deems that the guidelines should be ap-

plied to be consistent with the [g]uidelines [m]anual as a whole as well as the

authorizing statute.” Id. The majority opinion’s footnote goes astray because

it doesn’t do what it says it does—apply Stinson, unvarnished and unclarified.

The footnote never grapples with the presumption that the commentary to

section 4B1.2(b) is the most accurate indication of how the sentencing com-

mission deemed the guideline should be applied.

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that have been undermined but not directly overruled by later

cases. The other way to harmonize Stinson and Kisor is to apply

Stinson to the “commentary in the [g]uidelines [m]anual that inter-

prets or explains a guideline,” 508 U.S. at 38, and Kisor “to agencies’

reasonable readings of genuinely ambiguous regulations,” 139 S.

Ct. at 2408, until the Supreme Court tells us that Stinson has been

overruled or clarified out of existence.

Because the Kisor clarification does not apply to Stinson, Ki-

sor is not “irreconcilable” with Weir and “incongruous” with

Smith. Maj. Op. at 21 n.9. “[A] conviction of conspiracy to possess

with intent to distribute” heroin and cocaine remains “a ‘controlled

substance offense’ for purposes of career criminal sentence en-

hancement under section 4B1.1 of the” guidelines. Weir, 51 F.3d

at 1031. I would affirm the defendant’s sentence.