United States v. Roberto Castillo

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-50054

Plaintiff-Appellee,

D.C. Nos.

v. 2:19-cr-00764-

DSF-1

ROBERTO CASTILLO, AKA 2:19-cr-00764-

Roberto Enrique Castillo, AKA Ito, DSF

AKA Shadow,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted November 17, 2022

Pasadena, California

Filed May 31, 2023

Before: Kim McLane Wardlaw and William A. Fletcher,

Circuit Judges, and Matthew F. Kennelly,* District Judge.

Opinion by Judge Wardlaw

*

The Honorable Matthew F. Kennelly, United States District Judge for

the Northern District of Illinois, sitting by designation.

2 UNITED STATES V. CASTILLO

SUMMARY**

Criminal Law

The panel vacated Roberto Castillo’s sentence for

conspiracy to distribute at least 50 grams of

methamphetamine in violation of 21 U.S.C. §§ 846 and 841,

and remanded for resentencing, in a case in which the district

court concluded that this offense of conviction qualified

Castillo as a career offender under United States Sentencing

Guidelines Manual (U.S.S.G.) § 4B1.1, as it was a

“controlled substance offense” as defined by U.S.S.G. §

4B1.2.

The text of U.S.S.G. § 4B1.2(b) does not include

“conspiracy to distribute” in its list of controlled substance

offenses. Rather, Application Note 1 states that “controlled

substance offenses” include “offenses of aiding and abetting,

conspiring, and attempting to commit such offenses.” This

court has previously held that Application Note 1

permissibly expands on, and is consistent with, the text of

§ 4B1.2(b). See United States v. Vea-Gonzales, 999 F.2d

1326 (9th Cir. 1993), overruled on other grounds by Custis

v. United States, 511 U.S. 485 (1994); United States v. Crum,

934 F.3d 963 (9th Cir. 2019), cert. denied, 140 S. Ct. 2629

(2020).

Under Stinson v. United States, 508 U.S. 36 (1993), the

Guidelines’ commentary must be given controlling weight

unless it is plainly erroneous or inconsistent with the

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. CASTILLO 3

regulation. Stinson’s broad deference to the commentary—

as well as the broad deference afforded to agencies’

interpretations of their own rules—has narrowed over

time. In Kisor v. Wilkie, 139 S. Ct. 2400 (2019), the

Supreme Court cabined the scope of this deference,

clarifying that the possibility of deference to an agency’s

interpretation of its own rules can arise only if a regulation

is genuinely ambiguous. Under Kisor, not all reasonable

agency constructions of those truly ambiguous rules are

entitled to deference, and before concluding that a rule is

genuinely ambiguous, a court must exhaust all the traditional

tools of construction. If uncertainty does not exist after

exhausting these tools, there is no plausible reason for

deference.

Explaining that the more demanding standard articulated

in Kisor applies to the Guidelines’ commentary, the panel

held that Kisor is an intervening decision and is clearly

irreconcilable with the holdings in Vea-Gonzales and

Crum. Applying the traditional tools of statutory

construction to the text of the guideline, as Kisor instructs,

the panel concluded that § 4B1.2(b) unambiguously

identifies a list of crimes that does not include inchoate

offenses. Because § 4B1.2(b)’s definition of “controlled

substance offense” is unambiguous, the Supreme Court’s

decision in Kisor now makes it impermissible to defer to

Application Note 1 to determine whether conspiracy fits into

this definition. Accordingly, the panel held that Crum and

Vea-Gonzales applied an inappropriate level of deference to

§ 4B1.2(b)’s commentary, and consequently, these cases are

irreconcilable with Kisor’s instructions regarding review of

agency regulations and deference to an agency’s, including

the Sentencing Commission’s, interpretive commentary. To

the extent that Crum and Vea-Gonzales hold that an inchoate

4 UNITED STATES V. CASTILLO

offense is a “controlled substance offense” for career

enhancement purposes under the Sentencing Guidelines, the

panel overruled them.

Further, deference to Application Note 1 raises grave

constitutional concerns. The panel wrote that the Sentencing

Commission’s lack of accountability in its creation and

amendment of the commentary raises constitutional

concerns when a court defers to commentary that expands

unambiguous Guidelines, particularly because of the

extraordinary power the Commission has over individuals’

liberty interests. Here, Castillo’s career offender

enhancement increased his advisory sentence range from

151–188 months to 262–327 months under the Sentencing

Guidelines. And his nearly 22-year sentence—imposed by

the district court based on the Sentencing Guidelines—was

approximately 7 to 10 years greater than it would have been

without the enhancement, assuming the district court would

have sentenced Castillo within the advisory sentence

range. The panel wrote that surely neither Kisor nor Stinson

permitted the Sentencing Commission to invoke its general

interpretative authority via commentary to impose such a

massive impact on a defendant with no grounding in the

Guidelines themselves.

Because the text of § 4B1.2(b) unambiguously does not

include inchoate offenses, and because the court is no longer

permitted to rely on the commentary of an unambiguous

guideline after Kisor, the panel held that Castillo’s

conspiracy conviction is not a “controlled substance

offense” under § 4B1.1.

UNITED STATES V. CASTILLO 5

COUNSEL

James H. Locklin (argued), Deputy Federal Public Defender;

Cuauhtemoc Ortega, Federal Public Defender; Federal

Public Defender’s Office; Los Angeles, California; for

Defendant-Appellant.

David R. Friedman (argued) and Lynda Lao, Assistant

United States Attorneys; Bram M. Alden, Assistant United

States Attorney, Criminal Appeals Section Chief; Tracy L.

Wilkison, United States Attorney; Office of the United

States Attorney; Los Angeles, California; for Plaintiff-

Appellee.

OPINION

WARDLAW, Circuit Judge:

Roberto Castillo pleaded guilty to the crime of

conspiracy to distribute at least 50 grams of

methamphetamine in violation of 21 U.S.C. §§ 846 and 841.

The district court concluded that this offense of conviction

qualified Castillo as a career offender under United States

Sentencing Guidelines Manual (U.S.S.G.) § 4B1.1, as it was

a “controlled substance offense,” as defined by U.S.S.G.

§ 4B1.2(b). However, the text of U.S.S.G. § 4B1.2(b) does

not actually include “conspiracy to distribute” in its list of

controlled substance offenses. Rather, Application Note 1

states that “controlled substance offenses” include “offenses

of aiding and abetting, conspiring, and attempting to commit

such offenses.” We have previously held that Application

Note 1 permissibly expands on, and is consistent with, the

text of U.S.S.G. § 4B1.2(b). See United States v. Vea-

6 UNITED STATES V. CASTILLO

Gonzales, 999 F.2d 1326 (9th Cir. 1993), overruled on other

grounds by Custis v. United States, 511 U.S. 485 (1994);

United States v. Crum, 934 F.3d 963 (9th Cir. 2019), cert.

denied, 140 S. Ct. 2629 (2020). We must decide whether

Kisor v. Wilkie, 139 S. Ct. 2400 (2019), is intervening

“clearly irreconcilable” authority that requires us to examine

the plain text of the guideline, determine whether there is any

ambiguity, and if there is not, to disregard the interpretive

gloss set forth in the guideline’s commentary. Miller v.

Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003). In short, we

must decide which side of a growing intercircuit split is

correct on the question whether Application Note 1

improperly expands the definition of “controlled substance

offense” in § 4B1.2(b).

Because we conclude that we must apply the Supreme

Court’s decision in Kisor, and that Application Note 1

improperly expands the definition of “controlled substance

offense” in U.S.S.G. § 4B1.2(b), we vacate Castillo’s

sentence and remand for resentencing consistent with this

opinion.

I.

In May 2019, Roberto Castillo sold approximately 14

grams of methamphetamine to a government informant for

$100. In June 2019, he sold the same informant 53 grams of

methamphetamine for $400. In July 2019, Castillo and

Casandra Cachu, Castillo’s codefendant, arranged to sell the

informant about 111.1 grams of methamphetamine for $440.

Castillo and the informant made arrangements by phone, and

Cachu delivered the drugs to the informant. In the course of

these events, Castillo allegedly distributed or “conspired to

distribute” a total of approximately 178.1 grams of

methamphetamine.

UNITED STATES V. CASTILLO 7

Castillo was arrested in January 2020. A grand jury

indicted Castillo on four counts, including one count of

conspiracy to distribute methamphetamine, 21 U.S.C. §§

846, 841. On September 21, 2020, Castillo pleaded guilty to

the conspiracy count.

At sentencing, the district court found the Presentence

Report (PSR) prepared by the Probation Officer accurate and

correct, and so adopted it. For the offense of conviction, the

PSR calculated the base offense level at 32 based on the

Drug Quantity Table set forth in U.S.S.G. § 2D1.1(c). The

PSR then found that Castillo had two prior convictions under

Cal. Health & Safety Code § 11378 that qualified as

controlled substances offenses under U.S.S.G. §§ 4B1.1;

4B1.2(b).1 The PSR then determined that Castillo’s instant

conspiracy to distribute offense also was a controlled

substance offense under the career offender guideline, and

accordingly, increased the offense level by 5 to 37. It then

recommended a 3-point reduction for acceptance of

responsibility, to reach a total offense level of 34. The

Probation Officer calculated a criminal history category of

VI, for an advisory sentence range of 262 to 327 months.

The Probation Officer recommended a sentence at the low

end of the Guidelines, and the Government agreed. Absent

the career offender enhancement, the applicable advisory

range for Castillo would have been significantly lower—151

to 188 months.

1

Castillo’s prior offenses include two convictions for possession of

methamphetamine for sale, Los Angeles County Superior Court, Dkt.

Nos. PA049723 and PA081690, in violation of California Health &

Safety Code § 11378. Castillo was first convicted of this offense in

December 2004, and sentenced to 28 months in state prison. He was

again convicted of the same offense in November 2014, and sentenced

to another two years in state prison.

8 UNITED STATES V. CASTILLO

The district court sentenced Castillo to 262 months’

custody and ten years of supervised release. The court relied

on the Probation Officer’s determination that Castillo’s

conspiracy conviction is a “controlled substance offense” for

purposes of the career offender adjustment. Castillo appeals

his sentence.

II.

Under the Guidelines, a defendant is a “career offender”

if: (1) the defendant was at least 18 years old at the time of

the instant offense of conviction; (2) the instant offense is a

felony that is either a crime of violence or a controlled

substance offense; and (3) the defendant has at least two

prior felony convictions of either a crime of violence or a

controlled substance offense. U.S.S.G. § 4B1.1(a).

Sentencing Guideline § 4B1.2 provides the definitions

for the terms used in U.S.S.G. § 4B1.1. Subsection 4B1.2(b)

defines the term “controlled substance offense” as:

[A]n offense under federal or state law,

punishable by imprisonment for a term

exceeding one year, that prohibits the

manufacture, import, export, distribution, or

dispensing of a controlled substance (or a

counterfeit substance) or the possession of a

controlled substance (or a counterfeit

substance) with intent to manufacture,

import, export, distribute, or dispense.

Id. § 4B1.2(b).

The text of § 4B1.2(b) does not identify conspiracy to

commit any of the offenses as such an offense, but the

guideline’s commentary expands the definition to include

UNITED STATES V. CASTILLO 9

conspiracy, as well as aiding and abetting or attempting the

identified crimes. Application Note 1 to U.S.S.G.

§ 4B1.2(b) provides that “controlled substance offenses”

“include the offenses of aiding and abetting, conspiring, and

attempting to commit such offenses.” Id. § 4B1.2,

application note 1.

Conspiracy is an inchoate offense that is separate and

independent from the crime that is the subject of the

conspiracy. See United States v. Iribe, 564 F.3d 1155, 1160

(9th Cir. 2009) (“Conspiracy to commit a crime is not

equivalent to the completion of that crime.”). Black’s Law

Dictionary defines “inchoate offense” as 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).

Black’s lists the three inchoate offenses as “attempt,

conspiracy, and solicitation.” Id. Because “[b]y definition”

inchoate crimes “do not require completion of the criminal

objective,” United States v. Macias-Valencia, 510 F.3d

1012, 1014 (9th Cir. 2007), the Guidelines distinguish

between inchoate offenses and underlying substantive

offenses. For instance, the Guidelines note that if the offense

is a conspiracy to commit a substantive offense and is not

covered by a specific offense guideline, the base level must

be decreased by 3 levels unless certain narrow circumstances

apply. U.S.S.G. § 2X1.1(b)(2), (c). And for career offender

purposes, the guideline’s text includes an inchoate offense—

“attempted use”—in the definition of a “crime of violence,”

id. § 4B1.2(a), whereas it does not include any inchoate

offenses in the definition of a “controlled substance

offense,” id. § 4B1.2(b).

10 UNITED STATES V. CASTILLO

III.

As a general matter, “[w]e review the district court’s

interpretation of the Sentencing Guidelines de novo.” United

States v. Rivera-Constantino, 798 F.3d 900, 902 (9th Cir.

2015) (citing United States v. Grajeda, 581 F.3d 1186, 1188

(9th Cir. 2009)). But here, the parties dispute the proper

standard to apply to our review of the district court’s

interpretation of the Sentencing Guidelines because Castillo

did not challenge the career offender adjustment in district

court. If an appellant fails to raise an issue in the district

court proceedings, Federal Rule of Criminal Procedure 52(b)

affords appellate courts discretion “to correct a forfeited

error” if the appellant shows (1) an error, (2) that is plain, (3)

that affects substantial rights, and (4) that seriously affects

the fairness, integrity, or public reputation of judicial

proceedings. Henderson v. United States, 568 U.S. 266, 272

(2013).

The Government argues that we should apply plain error

review under Federal Rule of Criminal Procedure 52(b).

Castillo responds that we may apply the de novo standard,

even though the issue was not raised in the district court,

because the issue before us is a purely legal question and the

Government will suffer no prejudice as a result.

In United States v. McAdory, 935 F.3d 838 (9th Cir.

2019), we held that “we are not limited to [plain error]

review when we are presented with [1] a question that is

purely one of law and [2] where the opposing party will

suffer no prejudice as a result of the failure to raise the issue

in the trial court.” Id. at 841–42 (second and third alterations

in original). Therefore, because the question in McAdory—

whether an offense qualifies as a predicate felony—was a

purely legal question, we applied the de novo standard of

UNITED STATES V. CASTILLO 11

review. Id.; see also United States v. Saavedra-Velazquez,

578 F.3d 1103, 1106 (9th Cir. 2009) (holding that “we are

not limited to [the plain error] standard of review when we

are presented with a question that ‘is purely one of law’ and

where ‘the opposing party will suffer no prejudice as a result

of the failure to raise the issue in the trial court . . .’” (citation

omitted)). Similarly, here, neither party disputes that the

applicability of the career offender requirements is a purely

legal question, and the Government has not argued that it

will suffer prejudice because Castillo failed to raise the issue

in district court.

But the assumption that de novo review applies to purely

legal questions that have not been argued below has been

called into question both by our court and by the Supreme

Court. See United States v. Zhou, 838 F.3d 1007, 1015–16

(9th Cir. 2016) (Graber, J., concurring) (“Our ‘pure question

of law’ exception contradicts Rule 52(b) and the Supreme

Court’s case law.”); Henderson, 568 U.S. at 269–70

(applying the plain error standard to a “[d]istrict [c]ourt’s

decision on a substantive legal question that was unsettled at

the time the trial court acted”).

Because McAdory controls in our circuit but it remains

an open question “whether [our] precedent can be reconciled

with the Supreme Court’s cases interpreting Federal Rule of

Criminal Procedure 52(b),” we assume without deciding that

de novo review applies here. United States v. Begay, 33

F.4th 1081, 1090 n.3 (9th Cir. 2022) (en banc). It is

unnecessary for us to decide the appropriate standard of

review to apply because “the outcome of our analysis would

be the same whether we apply plain error or de novo

review.” Id. at 1089.

12 UNITED STATES V. CASTILLO

IV.

Castillo argues that the district court erred by concluding

that his offense of conviction—conspiracy to distribute—is

a “controlled substance offense” that qualifies him as a

career offender under U.S.S.G. § 4B1.1.

We agree. Castillo’s sentence was for a drug conspiracy.

The Sentencing Guidelines’ definition of “controlled

substance offense” for career offender enhancements

currently does not include inchoate crimes like conspiracies,

although the commentary extends the definition to such

crimes. U.S.S.G. § 4B1.2(b), application note 1. Because

only the commentary includes inchoate crimes, and the text

of the guideline unambiguously does not, applying the

Supreme Court’s Kisor analysis, we must conclude that

Castillo’s conspiracy conviction does not qualify as a

“controlled substance offense” under U.S.S.G. § 4B1.2(b).

A.

The Government argues that our precedent in Vea-

Gonzales and Crum foreclose Castillo’s argument that his

conspiracy to distribute conviction is not a “controlled

substance offense.”2

2

The Government also argues that we have already held that 21 U.S.C.

§ 846 qualifies as a controlled substance offense in United States v.

O’Brien, 52 F.3d 277, 279 (9th Cir. 1995). But O’Brien did not address

the question before us. In O’Brien, a defendant charged with conspiracy

to distribute cocaine and marijuana under § 846 argued that he did not

qualify for the same statutory life-term enhancement as mandated for the

substantive underlying conviction under § 841(b)(1)(A)(ii)(II), because

he did not plead guilty to the underlying drug offense described in

§ 841(a)(1). Id. at 278. The O’Brien court noted that an individual

convicted of attempt or conspiracy is subject to the same penalties as

those prescribed for the underlying offense (the standard articulated in

UNITED STATES V. CASTILLO 13

In Vea-Gonzales, the defendant made the same argument

that Castillo makes here: that Application Note 1 to U.S.S.G.

§ 4B1.2(b), “which states that the predicate offenses include

aiding and abetting, impermissibly exceeds the scope of

[§] 4B1.2(b) itself.” 999 F.2d at 1330. We applied a

standard of interpretation nearly unrecognizable today. We

wrote that “[i]n interpreting the Guidelines and their

accompanying commentaries, courts are required to consider

them together, and, if possible, as consistent with each

other.” Id. We held that only if the guideline is

irreconcilable with the commentary “is the court to consider

the guideline alone.” Id. We found the guideline and

commentary were “perfectly consistent” because “[t]he

guideline refers to violations of laws prohibiting the

manufacture, import, export, distribution, or dispensing of

drugs,” and “[a]iding and abetting, conspiracy, and attempt

are all violations of those laws.” Id.

Twenty-six years later, in Crum, we again addressed the

question whether “Application Note 1 of § 4B1.2 lacks legal

force because it is inconsistent with the text of the

guideline.” 934 F.3d at 966. We explained that if it were

inconsistent, courts would be prohibited “from relying on the

commentary to expand the definition of ‘controlled

substance offense’ to include solicitation”—the predicate

crime at issue in Crum. Id. We further noted the developing

the statutory language of § 846), and therefore the defendant was subject

to the life-term enhancement. Id. But O’Brien did not consider whether

§ 4B1.2(b)’s commentary is authoritative. In O’Brien, we considered

only whether the Sentencing Commission had the statutory authority

under 28 U.S.C. § 994(h) to include “conspiracy” within the definition

of “controlled substance offense” in the career offender provision of the

Guidelines—an authority neither party disputes here. Id. at 279.

Therefore, O’Brien is not controlling.

14 UNITED STATES V. CASTILLO

intercircuit split on the inconsistency vel non between the

Guidelines and the commentary. We said “[i]f we were free

to do so,” we would follow the circuits that had held that the

two were inconsistent and hold that “the commentary

improperly expands the definition of ‘controlled substance

offense’ to include other offenses not listed in the text of the

guideline.” Id. at 966. We found it troubling that “the

Sentencing Commission ha[d] exercised its interpretive

authority to expand the definition of ‘controlled substance

offense’ in this way, without any grounding in the text of

§ 4B1.2(b) and without affording any opportunity for

congressional review.” Id. However, we were “compelled”

to follow Vea-Gonzales’s holding that the two were

consistent because “[n]o intervening higher authority [was]

‘clearly irreconcilable’ with the reasoning of Vea-

Gonzales.” Id. at 966–67.

Kisor was decided half a year after oral argument in

Crum, and was not cited to the Crum panel before it issued

its decision. The decision does not indicate that the Crum

panel considered in any way the effect of Kisor’s new rules

of guideline interpretation on the reasoning of Vea-

Gonzales. We do so now.

B.

In Stinson v. United States, 508 U.S. 36, 38–41 (1993)—

decided 30 years ago as of this month—the Supreme Court

clarified the legal force of the Guidelines’ commentary. It

held that “commentary in the Guidelines Manual that

interprets or explains a guideline is authoritative unless it

violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that

guideline.” Id. at 39.

UNITED STATES V. CASTILLO 15

The Stinson Court explained that the Sentencing

Commission, created by the Sentencing Reform Act of 1984,

18 U.S.C. § 3551 et seq., “promulgate[d] the guidelines by

virtue of an express congressional delegation of authority for

rulemaking”—the “equivalent of legislative rules adopted

by federal agencies.” Stinson, 508 U.S. at 44–45. And any

amendment to the Guidelines must be submitted to Congress

for a six-month period of review, during which time

Congress can “modify or disapprove them.” Id. at 41.

However, unlike the Guidelines themselves (but like an

agency’s interpretation of its own regulations), the

Guidelines’ commentary is not subject to mandatory

congressional review. Id. at 45. Under the administrative

agency analogy then, “commentary [should] be treated,” and

receive the same level of deference as, “an agency’s

interpretation of its own legislative rule.” Id. at 44.

Therefore, under Stinson, commentary “must be given

‘controlling weight unless it is plainly erroneous or

inconsistent with the regulation.’” Id. at 45 (quoting Bowles

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

Notably, under Stinson deference, commentary “provides

concrete guidance as to how even unambiguous guidelines

are to be applied in practice.” Id. at 44. As a result, even

when commentary may expand the meaning of the

Guidelines, if it is not plainly inconsistent with the

Guidelines, it is binding on the federal courts. Id. at 44–45;

see also Auer v. Robbins, 519 U.S. 452, 461 (1997) (holding

that a federal agency’s interpretation of a regulation is

controlling where it is not “plainly erroneous or inconsistent

with the regulation” (internal quotation marks and citation

omitted)).

Stinson’s broad deference to the Guidelines’

commentary—as well as the broad deference afforded to

16 UNITED STATES V. CASTILLO

agencies’ interpretations of their own rules described in

Seminole Rock and Auer—has narrowed over time.

Recently, in Kisor, the Supreme Court “cabined [the] scope”

of this deference, clarifying that “the possibility of

deference” to an agency’s interpretation of its own rules “can

arise only if a regulation is genuinely ambiguous.” 139 S.

Ct. at 2414, 2418 (emphasis added). Still more, the Court

reasoned, “not all reasonable agency constructions of those

truly ambiguous rules are entitled to deference.” Id. at 2414.

And, “before concluding that a rule is genuinely ambiguous,

a court must exhaust all the ‘traditional tools’ of

construction.” Id. at 2415 (quoting Chevron U.S.A. Inc. v.

Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984)).

“If uncertainty does not exist” after exhausting these tools,

“there is no plausible reason for deference.” Id.

The more demanding deference standard articulated in

Kisor applies to the Guidelines’ commentary. Kisor directly

examined and narrowed Seminole Rock and Auer deference

in the context of an administrative agency’s interpretation of

its own regulation, noting that such deference is not

permitted without first finding the regulation ambiguous.

Stinson deference is directly grounded in Seminole Rock and

Auer deference. Indeed, the deference standard articulated

by the Court in Stinson—that commentary “must be given

‘controlling weight unless it is plainly erroneous or

inconsistent’” with the guideline’s text—is a direct quotation

from Seminole Rock. Stinson, 508 U.S. at 45 (quoting

Seminole Rock, 325 U.S. at 414). And although Kisor did

not distinguish between an agency’s interpretation of its own

regulations and the commentary’s interpretation of the

Guidelines, “the only way to harmonize [Kisor and Stinson]

is to conclude that Kisor’s gloss on Auer and Seminole Rock

applies to Stinson.” United States v. Dupree, 57 F.4th 1269,

UNITED STATES V. CASTILLO 17

1275 (11th Cir. 2023) (en banc) (“Stinson adopted word for

word the test the Kisor majority regarded as a ‘caricature,’

so the continued mechanical application of that test would

conflict directly with Kisor.”). Therefore, to “follow

Stinson’s instruction to treat the commentary like an

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

Kisor’s clarification of Auer deference to Stinson.” Id. at

1276.

C.

Castillo argues that after Kisor, Vea-Gonzales and Crum

are no longer binding on us on the question whether

Application Note 1 is a permissible interpretation of

U.S.S.G. § 4B1.2(b). We are generally bound by our own

precedent. However, “a three-judge panel may reexamine

normally controlling circuit precedent in the face of an

intervening United States Supreme Court decision” in

certain narrow circumstances such as “where the reasoning

or theory of our prior circuit authority is clearly

irreconcilable with the reasoning or theory of intervening

higher authority.” See Miller, 335 F.3d at 892–93.

Castillo’s argument tees up two questions: (1) is Kisor

an intervening decision, and (2) is Kisor clearly

irreconcilable with our prior decisions, such that we may

reexamine our precedent as a three-judge panel? We answer

both questions in the affirmative. Kisor is an intervening

decision of a higher authority that is clearly irreconcilable

with our holdings in Vea-Gonzales and Crum.

1.

Kisor serves as an intervening decision. The Crum panel

did not address the effect of Kisor on our deference to

Application Note 1. The Government argues that because

18 UNITED STATES V. CASTILLO

the Supreme Court issued its opinion in Kisor two months

before we issued our decision in Crum, Kisor is not an

intervening decision.

We disagree. The Supreme Court issued the Kisor

decision after we heard oral argument in Crum, and less than

two months before the Crum panel rendered its opinion. The

litigants did not raise Kisor to the panel before it issued its

decision. The Crum panel applied Stinson’s deference

standard to reach its holding, and expressly held it was not

aware of intervening higher authority.3 Crum, 934 F.3d at

967.

Contrary to the Government’s suggestion, no panel in

our circuit has considered Kisor’s effect on our interpretation

of Application Note 1 since Crum. In United States v.

House, 31 F.4th 745 (9th Cir. 2022) (per curiam), we stated

that we were “bound by Crum” to hold that Application Note

1 “expands the prohibited conduct” of § 4B1.2 to inchoate

offenses. Id. at 749, 753. The House decision did not

mention Kisor; nor did the parties raise the potential effect

of Kisor on the legal force accorded to Application Note 1 in

their briefings. See generally Parties’ Briefings, United

3

After the decision was published, Crum filed a petition for rehearing

and rehearing en banc, arguing that the panel should not have relied on

Vea-Gonzales. Appellee’s Petition for Rehearing and Rehearing En

Banc at 2, United States v. Crum, 934 F.3d 963 (9th Cir. 2019) (No. 17-

30261), ECF No. 42. Although the petition mentioned Kisor, it did not

directly address the issue before us now. Rather, it focused on the Crum

panel’s mistaken reliance on the “out-of-date” pre-Stinson deference

standard articulated in Vea-Gonzales. Id. at 2, 12–13 (comparing Stinson

and Vea-Gonzales and noting that Stinson subjects commentary to

Auer/Seminole Rock deference, binding courts only if the commentary

bears on the construction of the guideline it is interpreting). The case

was not reheard by the panel or en banc.

UNITED STATES V. CASTILLO 19

States v. House, 31 F.4th 745 (9th Cir. 2022) (No. 20-

30169), ECF Nos. 4, 18, 23. Because the House court did

not consider the impact of Kisor, it does not bind us. See

United States v. Hogue, No. 20-30043, 2022 WL 4103627,

at *2 (9th Cir. Sept. 8, 2022) (Paez, J., concurring) (“None

of this court’s opinions evaluating Application Note 1 have

considered whether the Supreme Court’s decision in Kisor

clarified the rule laid out in Stinson.” (internal citations

omitted)).

Nor have we decided how Kisor affects the extent of

deference owed to other commentary interpreting the

Guidelines. In United States v. Kirilyuk, 29 F.4th 1128 (9th

Cir. 2022)—decided three years after Kisor—we applied

Stinson deference to conclude that Application Note

3(F)(i)’s interpretation of “loss” for calculating the

applicable offense level for crimes such as credit card fraud

under U.S.S.G. § 2B1.1 is not legally binding on courts. Id.

at 1134. We reasoned that the Application Note, which

defined “loss” accorded to a stolen credit card as an

automatic $500, is inconsistent with the plain meaning of the

word “loss” in the guideline. Id. at 1137. We chose “not

[to] express a view” on whether we are required to “apply[]

the narrower deference set out in [Kisor],” because the

Application Note in that instance was not binding even under

the broader test laid out in Stinson. Id. at 1138–39.

Because neither Vea-Gonzales, Crum, nor any other

Ninth Circuit decision analyzed Application Note 1’s

validity under Kisor, no “case binds us on this question.”

Kirilyuk, 29 F.4th at 1134 (noting that even though “two

published cases” had interpreted and applied the application

note at issue, “no Ninth Circuit case ha[d] considered

whether [the] Application Note . . . conflicts with the

meaning of ‘loss’” in the Guidelines, and therefore the issue

20 UNITED STATES V. CASTILLO

“remain[ed] an open question in our circuit”). Surely, issues

which are “neither brought to the attention of the court nor

ruled upon, are not to be considered as having been so

decided as to constitute precedents.” Id. (citation omitted);

see also Brecht v. Abrahamson, 507 U.S. 619, 631 (1993)

(holding that when a court has “never squarely addressed the

issue, and ha[s] at most assumed” something in a prior

decision, it is “free to address the issue on the merits”);

Medina-Rodriguez v. Barr, 979 F.3d 738, 747 (9th Cir.

2020) (noting that “unstated assumptions on non-litigated

issues are not precedential holdings binding future

decisions” (citation omitted)).

Because no prior Ninth Circuit panel has considered the

effect of Kisor on the Stinson deference we previously

applied to the Guidelines’ commentary, we conclude that

Kisor is an intervening decision of a higher authority.

2.

Kisor’s reasoning is clearly irreconcilable with Vea-

Gonzales and Crum. Applying the traditional tools of

statutory construction to the text of the guideline, as Kisor

instructs, we conclude that § 4B1.2(b) unambiguously

identifies a list of crimes that does not include inchoate

offenses. The Government’s argument that Kisor is not

irreconcilable with Vea-Gonzales and Crum because “either

the career offender guideline applies here unambiguously

[and encompasses conspiracies], or the commentary is

entitled to Kisor deference because the guideline is

ambiguous,” is not supported by the text of § 4B1.2(b).

Section 4B1.2(b) sets forth the specific offenses that

qualify as controlled substance offenses—manufacturing,

importing, exporting, distributing, dispensing, or possessing.

The canon of construction, expressio unius est exclusio

UNITED STATES V. CASTILLO 21

alterius, directs us to infer from Congress’s express

inclusion of enumerated offenses that its exclusion of

inchoate crimes was intentional. See United States v. Nasir,

17 F.4th 459, 471–72 (3d Cir. 2021) (en banc); United States

v. Winstead, 890 F.3d 1082, 1091 (D.C. Cir. 2018). Because

the plain text of § 4B1.2(b) unambiguously excludes

inchoate crimes, we are not permitted under Kisor to defer

to the Commission’s commentary. See Dupree, 57 F.4th at

1277 (“A definition which declares what a term means

excludes any meaning that is not stated.” (internal quotation

marks omitted) (quoting Burgess v. United States, 553 U.S.

124, 130 (2008)).

Further, the exclusion of inchoate offenses in § 4B1.2(b)

stands in sharp contrast to the inclusion of attempt, an

inchoate offense, within a different subsection of the same

provision: Section 4B1.2(b)’s plain language clearly omits

inchoate offenses in the definition of the term “controlled

substance offense,” whereas § 4B1.2(a)’s plain language

includes some inchoate offenses in the definition of the term

“crime of violence.” See U.S.S.G. § 4B1.2(a)(1) (defining

“crime of violence” to include an offense that, among other

things, “has as an element the use, attempted use, or

threatened use of physical force against the person of

another” (emphasis added)). The Supreme Court has

emphasized that “Congress generally acts intentionally

when it uses particular language in one section of a statute

but omits it in another,” and that this canon “applies with

particular force” when the use and omission occur “in close

proximity” to one another. Dep’t of Homeland Sec. v.

MacLean, 574 U.S. 383, 391–92 (2015).

Here, this distinction between definitions in neighboring

subsections within the same provision shows that the drafters

knew how to include inchoate offenses in defining

22 UNITED STATES V. CASTILLO

“controlled substance offense” for sentencing enhancement

purposes, but chose not to do so. See Winstead, 890 F.3d at

1092 (“[W]hen enumerating a list of specific offenses that

qualify to support career offender status, the drafters

declined to include attempt despite its presence elsewhere.”);

Rotkiske v. Klemm, 140 S. Ct. 355, 361 (2019) (“Atextual

judicial supplementation is particularly inappropriate when,

as here, [the drafter] has shown that it knows how to adopt

the omitted language or provision.”). That the Sentencing

Commission chose to add inchoate offenses to the definition

of “controlled substance offenses” in the commentary,

demonstrates that it, too, recognized they were omitted from

the § 4B1.2(b) definition.

a.

We are not alone in re-evaluating our precedent in light

of the Supreme Court’s decision in Kisor. Prior to Kisor,

circuit courts were already divided on whether to afford

deference to Application Note 1 in determining whether

§ 4B1.2(b) includes inchoate offenses. Kisor deepened the

existing circuit split, as our sister circuits began to rethink

their broad deference to the Guidelines’ commentary.

Before Kisor, when the more permissive deference

standard laid out in Stinson was the law of the land, only the

D.C. and Sixth Circuits declined to defer to Application Note

1 in defining “controlled substance offenses.” See Winstead,

890 F.3d at 1091; United States v. Havis, 927 F.3d 382, 387

(6th Cir. 2019) (en banc) (per curiam). These circuits held

that, under Stinson, the definition of “controlled substance

offense” does not include inchoate offenses.

The D.C. Circuit in Winstead held that § 4B1.2(b)’s

“commentary in Application Note 1 exceeds its authority

under Stinson” because the guideline and its accompanying

UNITED STATES V. CASTILLO 23

commentary are “indeed inconsistent,” and the commentary

impermissibly expands the scope of the plain language of the

guideline. 890 F.3d at 1091. Invoking the canon of

expressio unius, the Winstead court explained that

“[§] 4B1.2(b) presents a very detailed ‘definition’ of

controlled substance offense that clearly excludes inchoate

offenses.” Id. The D.C. Circuit concluded that “the

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

to include attempt offenses when it intends to do so.” Id. The

court noted “[i]f the Commission wishes to expand the

definition of ‘controlled substance offenses’ to include

attempts, it may seek to amend the language of the

guidelines by submitting the change for congressional

review.” Id. at 1092.

The Sixth Circuit agreed with Winstead and held that

“[t]he text of § 4B1.2(b) controls, and it makes clear that

attempt crimes do not qualify as controlled substance

offenses.” Havis, 927 F.3d at 387. The Sixth Circuit wrote

that application notes are to be “interpretations of, not

additions to, the Guidelines themselves.” Id. at 386 (quoting

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

Citing Winstead, it reasoned that “[if] that were not so, the

institutional constraints that make the Guidelines

constitutional in the first place—congressional review and

notice and comment—would lose their meaning.” Id. at

386–87. But here, the commentary “d[oes] not interpret a

term in the guideline itself,” but rather “add[s] an offense not

listed in the guideline.” Id. at 386. The Havis court

concluded that the “use of commentary to add attempt

24 UNITED STATES V. CASTILLO

crimes to the definition of ‘controlled substance offense’

deserves no deference” under Stinson. Id. at 387.4

However, before Kisor was decided, the majority of the

remaining circuits agreed with our decisions in Vea-

Gonzales and Crum that because Application Note 1 was

consistent with the “controlled substance offense” guideline,

courts would defer to it, making inchoate offenses

“controlled substance offenses.” See United States v. Piper,

35 F.3d 611, 617 (1st Cir. 1994); United States v. Jackson,

60 F.3d 128, 131 (2d Cir. 1995); United States v. Hightower,

25 F.3d 182, 187 (3d Cir. 1994), overruled by Nasir, 17 F.4th

459; United States v. Mendoza-Figueroa, 65 F.3d 691, 692–

93 (8th Cir. 1995) (en banc); United States v. Smith, 54 F.3d

690, 693 (11th Cir. 1995), overruled by Dupree, 57 F.4th

1269; see also United States v. Walton, 56 F.3d 551, 555–56

(4th Cir. 1995) (relying on Application Note 1 without

explicitly discussing the consistency between the

commentary and the “controlled substance offense”

guideline or conducting a deference analysis); United States

v. Lightbourn, 115 F.3d 291, 293 (5th Cir. 1997) (same);

Boyer v. United States, 55 F.3d 296, 297–98 (7th Cir. 1995)

(same); United States v. Allen, 24 F.3d 1180, 1185–86 (10th

Cir. 1994) (same).

4

Although Havis was published after Kisor, the decision did not cite or

even discuss Kisor’s effect on the deference afforded to the Guidelines’

commentary. See generally Havis, 972 F.3d 382. Indeed, once the Sixth

Circuit had the opportunity to examine the implications of Kisor, it

recognized that its pre-Kisor cases had upheld commentary expanding

the Guidelines, but those cases could not stand after Kisor. See United

States v. Riccardi, 989 F.3d 476, 485 (6th Cir. 2021).

UNITED STATES V. CASTILLO 25

b.

After the Supreme Court issued its decision in Kisor,

however, the Third, Fourth, and Eleventh Circuits joined the

Sixth and D.C. Circuits to hold that we cannot defer to

Application Note 1 to interpret § 4B1.2(b). See Nasir, 17

F.4th at 471 (explaining that, after Kisor, it is clear that the

court went “too far in affording deference to the guidelines’

commentary under” Stinson); United States v. Campbell, 22

F.4th 438, 444 (4th Cir. 2022) (noting that “if there were any

doubt that under Stinson the plain text” of the guideline

requires the conclusion that an attempt offense is not a

“controlled substance offense,” Kisor “renders this

conclusion indisputable”); Dupree, 57 F.4th at 1271, 1277

(holding that, “[w]ith Kisor’s refined deference scheme in

mind,” the “definition of ‘controlled substance offense’ in

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

inchoate offenses like conspiracy and attempt”).

Specifically, the Third and Eleventh Circuits overturned

their circuit caselaw relying on Stinson, holding that

deference to Application Note 1 is irreconcilable with Kisor.

Accordingly, post-Kisor, the Third, Fourth, Sixth, Eleventh,

and D.C. Circuits do not defer to the expanded definition of

“controlled substance offense” in Application Note 1.5

In Nasir, the Third Circuit overturned its prior ruling in

Hightower, 25 F.3d at 187—in which it had relied on

Stinson’s understanding of deference to commentary—after

5

The Fifth Circuit is also reconsidering its precedent deferring to the

Sentencing Guidelines’ commentary. On August 24, 2022, the Fifth

Circuit granted en banc review to consider Kisor’s impact on its

deference to commentary. See United States v. Vargas, 35 F.4th 936 (5th

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

2022). As of May 23, 2023, the Fifth Circuit’s decision remains pending.

26 UNITED STATES V. CASTILLO

Kisor was issued. Nasir, 17 F.4th at 470–71. The court

explained:

Our interpretation of the commentary at issue

in Hightower – the same commentary before

us now – was informed by the then-prevailing

understanding of the deference that should be

given to agency interpretations of their own

regulations. Thus, although we recognized

that the commentary expanded and did not

merely interpret the definition of “controlled

substance offense,” we nevertheless gave it

binding effect. In doing so, we may have

gone too far in affording deference to the

guidelines’ commentary under the standard

set forth in Stinson. Indeed, after the Supreme

Court’s recent decision in [Kisor], it is clear

that such an interpretation is not warranted.

Id.

The Third Circuit acknowledged that the Supreme Court

in Kisor “cut back on what had been understood to be

uncritical and broad deference to agency interpretations of

regulations and explained that Auer, or Seminole Rock,

deference should only be applied when a regulation is

genuinely ambiguous.” Id. at 471. Applying Kisor’s refined

deference standard, the Nasir court held that “a plain-text

reading of [§] 4B1.2(b)” indicates that it does not include

inchoate crimes. Id. at 471; see also Riccardi, 989 F.3d at

485 (recognizing that broad deference to Guidelines’

commentary “could not stand after Kisor,” and that Kisor

“must awake us ‘from our slumber of reflexive deference’ to

the commentary” (citation omitted)); Mountain Cmtys. for

UNITED STATES V. CASTILLO 27

Fire Safety v. Elliott, 25 F.4th 667, 675 (9th Cir. 2022)

(noting that in Kisor, “the [Supreme] Court has recently

retrenched on [] Auer deference”).

And recently, in Dupree, the Eleventh Circuit joined the

Third Circuit by overruling its prior holdings in United

States v. Weir, 51 F.3d 1031 (11th Cir. 1995), and Smith, 54

F.3d 690, in light of Kisor to conclude that “the definition of

‘controlled substance offense’ in § 4B1.2(b) does not

include inchoate offenses.” Dupree, 57 F.4th at 1271. The

Eleventh Circuit clarified that it was not disregarding

Stinson’s holding, but rather it was “apply[ing] Kisor’s

clarification of Auer deference to Stinson.” Dupree, 57 F.4th

at 1276. Beginning with the text of § 4B1.2(b), and

“applying our traditional tools of statutory interpretation,”

the Dupree court concluded that the plain language of the

guideline’s text “unambiguously excludes inchoate

offenses.” Id. at 1277. Because it found the guideline’s text

unambiguous, the Eleventh Circuit held that its analysis was

complete, and it had “no need to consider, much less defer

to, the commentary in Application Note 1.” Id. at 1279.

The Fourth Circuit has also held that an attempt crime

does not constitute a “controlled substance offense” under

Kisor because the guideline’s plain text does not include

inchoate crimes. Campbell, 22 F.4th at 447. The Campbell

court determined that this was an issue of first impression,

even though it had applied Application Note 1 in its prior

decision in United States v. Kennedy, 32 F.3d 876 (4th Cir.

1994). Id.; see also Kennedy, 32 F.3d at 888 (deferring to

Application Note 1 and determining that a defendant

convicted of conspiracy to distribute cocaine qualified as a

career offender under § 4B1.1). The Campbell court held

that Kennedy was not dispositive because Kennedy did not

determine whether deference to the commentary was

28 UNITED STATES V. CASTILLO

appropriate; it discussed only whether the Sentencing

Commission had the statutory authority to add inchoate

offenses to the definition of “controlled substance offense.”

See Campbell, 22 F.4th at 447. But even assuming Kennedy

and its past cases had resolved the question before it, the

Campbell court held that “Kisor would have at the very least

undermined those cases’ holdings,” and therefore it would

“not [have been] bound” by its prior precedent. Id.6

On the other side of the post-Kisor split, the First,

Second, Seventh, Eighth, and Tenth Circuits have continued

to defer to Application Note 1. Significantly, however,

while these opinions were published after the Supreme

Court’s decision in Kisor, nearly all fail to address how

Kisor affects deference to the Guidelines’ commentary. See

United States v. Richardson, 958 F.3d 151, 154–55 (2d Cir.

2020) (relying on Stinson and prior circuit precedent to

conclude that Application Note 1 is binding, without

engaging in an analysis of Kisor); United States v. Smith, 989

6

We note that twelve days after the Fourth Circuit published Campbell,

it published United States v. Moses, 23 F.4th 347 (4th Cir. 2022), cert.

denied, 143 S. Ct. 640 (2023), in which it found that Application Note

5(C) to U.S.S.G. § 1B1.3 should be afforded binding effect under

Stinson. Id. at 349. In doing so, the Moses court held that “Stinson

continues to apply unaltered by Kisor.” Id. This directly conflicts with

the Campbell court’s opinion. See id. at 359 (King, J., concurring in part)

(“The legal analysis of the panel majority in this case conflicts with the

Campbell precedent in concluding that the Supreme Court’s decision in

Kisor is inapplicable. Crucially, no panel of this Court is entitled to

circumscribe or undermine an earlier panel decision.” (citations

omitted)). Because Campbell is the earlier ruling, Campbell controls;

moreover, unlike Moses, Campbell specifically declines to defer to

Application Note 1. Therefore, we must assume that Fourth Circuit

precedent holds that inchoate crimes do not qualify as controlled

substance offenses under the Guidelines.

UNITED STATES V. CASTILLO 29

F.3d 575, 583–85 (7th Cir. 2021) (continuing to follow its

pre-Kisor precedent which deferred to the commentary of

§ 4B1.2(b), without engaging in an analysis of Kisor);

United States v. Jefferson, 975 F.3d 700, 708 (8th Cir. 2020),

cert. denied, 141 S. Ct. 2820 (2021) (holding that the

commentary controls and relying on past precedent without

engaging in an analysis of Kisor); see also United States v.

Lovato, 950 F.3d 1337, 1347 (10th Cir. 2020); cert. denied,

141 S. Ct. 2814 (2021) (relying on prior circuit precedent to

defer to Application Note 1 without engaging in an analysis

of Kisor).

Only the First Circuit has held that Kisor is not

irreconcilable with its circuit precedent. In United States v.

Lewis, 963 F.3d 16 (1st Cir. 2020), cert. denied, 141 S. Ct.

2826 (2021), the First Circuit concluded that “circuit

precedent forecloses” an argument that the definition of

“controlled substance offense” does not include inchoate

crimes, even after the Supreme Court’s decision in Kisor. Id.

at 22–23. Although the Lewis court noted that Kisor requires

that we not afford deference unless a regulation is genuinely

ambiguous, it ultimately held that it “do[es] not find

anything in [its] prior opinions suggesting that those panels

understood themselves as straying beyond the zone of

genuine ambiguity in deeming Application Note 1 consistent

with § 4B1.2.” Id. at 24.

We are unpersuaded by the First Circuit’s decision. The

Lewis court determined it was bound to follow its prior

panels under the “law of the circuit doctrine” because its

circuit precedent interpreted § 4B1.2(b) to be within Kisor’s

“zone of ambiguity.” Id. at 23–24. Therefore, according to

the Lewis court, there was no sound basis to conclude that

the prior panels would have “found in Kisor any reason to

change [their] collective mind[s]” in regard to the extent of

30 UNITED STATES V. CASTILLO

deference owed to Application Note 1. Id. at 24 (alterations

in original) (internal quotation marks and citations omitted).

In our circuit, however, we cannot state with confidence

that prior panels have interpreted § 4B1.2(b) to be within

Kisor’s “zone of ambiguity” so as to trigger deference.

Indeed, the panel in Crum came to the opposite conclusion.

It stated: “If we were free to do so, we would follow the Sixth

and D.C. Circuits’ lead. In our view, the commentary

improperly expands the definition of ‘controlled substance

offense’ to include other offenses not listed in the text of the

guideline.” Crum, 934 F.3d at 966. Because Crum found

that the guideline’s text unambiguously excludes conspiracy

offenses, our prior panel would have “found in Kisor [a]

reason to change [their] collective mind[s].” Lewis, 963 F.3d

at 24 (second and third alteration in original) (internal

quotation marks and citations omitted).

Additionally, the Lewis court made a conclusory finding

that § 4B1.2(b)’s text was ambiguous without “exhaust[ing]

all the traditional tools of construction,” as Kisor requires.

139 S. Ct. at 2415 (internal quotation marks and citation

omitted). We believe that if it had employed these tools, it

would have concluded, as we do, that the guideline

unambiguously excludes inchoate offenses, and therefore

Kisor is an irreconcilable, intervening decision of a higher

authority that requires reexamination of its precedent.

D.

Because we find that § 4B1.2(b)’s definition of

“controlled substance offense” is unambiguous, the Supreme

Court’s decision in Kisor now makes it impermissible to

defer to Application Note 1 to determine whether conspiracy

fits into this definition. Kisor, 139 S. Ct. at 2415 (“If

UNITED STATES V. CASTILLO 31

uncertainty does not exist, there is no plausible reason for

deference.”).

Accordingly, we hold that our precedent in Crum and

Vea-Gonzales applied an inappropriate level of deference to

§ 4B1.2(b)’s commentary, and consequently, these cases are

irreconcilable with Kisor’s instructions regarding review of

agency regulations and deference to an agency’s, including

the Sentencing Commission’s, interpretive commentary. To

the extent that Crum and Vea-Gonzales hold that an inchoate

offense is a “controlled substance offense” for career

enhancement purposes under the Sentencing Guidelines, we

overrule them.7

V.

Further, deference to Application Note 1 raises grave

constitutional concerns. The Sentencing Commission,

“established as an independent commission in the judicial

branch of the United States,” 28 U.S.C. § 991(a), “is fully

accountable to Congress, which can revoke or amend any or

all of the Guidelines.” Mistretta v. United States, 488 U.S.

361, 393 (1989). Moreover, the Commission’s “rulemaking

is subject to the notice and comment requirements of the

7

The Sentencing Commission recently adopted a proposed amendment

to the text of the guideline, which inserts a new sub-section (d) to

§ 4B1.2, that explicitly states that inchoate offenses are included in the

definition of the term “controlled substance offense.” 88 Fed. Reg.

28,275 (May 3, 2023). This amendment may go into effect on November

1, 2023, absent action by Congress, and would affect sentencing

enhancements for future defendants. See U.S.S.G. § 1B1.1(b). That the

Sentencing Commission proposed an amendment to the guideline itself,

rather than to the commentary, further supports our view that an inchoate

offense is a separate crime from the crime conspired about, and that, at

the time of Castillo’s sentence, the commentary improperly expanded the

Guideline’s plain language.

32 UNITED STATES V. CASTILLO

Administrative Procedures Act.” Id. at 394. These

constraints ensure that the Sentencing Commission’s

rulemaking authority does not “upset the constitutionally

mandated balance of powers among the coordinate

Branches.” Id. at 412.

But unlike the Sentencing Guidelines themselves, the

Guidelines’ commentary is not required to undergo notice

and comment requirements; nor is it subject to any other

mandated safeguards to cabin the Sentencing Commission’s

broad authority. 8 See Campbell, 22 F.4th at 446 (“[I]n

fashioning commentary the Commission acts unilaterally,

without that continuing congressional role so vital to the

Sentencing Guidelines’ constitutionality.”). For the most

part, the fact that the commentary is not subject to

constitutional safeguards is unproblematic because we defer

to commentary that “serves only to interpret the Guidelines’

text” and “has no independent legal force.” Havis, 927 F.3d

at 386.

However, the Sentencing Commission’s lack of

accountability in its creation and amendment of the

commentary raises constitutional concerns when we defer to

commentary such as Application Note 1 that expands

unambiguous Guidelines, particularly because of the

extraordinary power the Commission has over individuals’

8

Although the Sentencing Commission provides “to the extent

practicable, comparable opportunities for public input on proposed

policy statements and commentary considered in conjunction with

guideline amendments,” its decision to do so is discretionary, and it

maintains the power to promulgate commentary “without using this

notice-and-comment and congressional-submission procedure.” Moses,

23 F.4th at 353 (citing United States Sentencing Commission, Rules of

Practice and Procedure 6–7 (as amended Aug. 18, 2016)).

UNITED STATES V. CASTILLO 33

liberty interests. See Campbell, 22 F.4th at 446 (explaining

that permitting commentary to add to the Sentencing

Guidelines would “allow circumvention of the checks

Congress put on the Sentencing Commission, a body that

exercises considerable authority in setting rules that can

deprive citizens of their liberty” (citation omitted)); United

States v. Nasir, 982 F.3d 144, 159 (3d Cir. 2020), aff’d on

remand, 17 F.4th 459 (noting that “separation-of-powers

concerns advise against any interpretation of the

commentary that expands the substantive law set forth in the

guidelines themselves”).

Indeed, “the Sentencing Commission has established

significant, legally binding prescriptions governing

application of governmental power against private

individuals” just “short of capital punishment.” Mistretta,

488 U.S. at 413 (Scalia, J., dissenting) (footnote omitted).

As we noted in Crum, by “exercis[ing] its interpretive

authority to expand the definition of ‘controlled substance

offense’ . . . without any grounding in the text of § 4B1.2(b)

and without affording any opportunity for congressional

review,” the Sentencing Commission has used its unchecked

power to infringe on the liberty interests of criminal

defendants. 934 F.3d at 966. “[T]he Commission’s

interpretation will likely increase the sentencing ranges for

numerous defendants whose prior convictions qualify as

controlled substance offenses due solely to Application Note

1.” Id.

Here, Castillo’s career offender enhancement increased

his advisory sentence range from 151–188 months to 262–

327 months under the Sentencing Guidelines. And his

nearly 22-year sentence—imposed by the district court

based on the Sentencing Guidelines—was approximately 7

to 10 years greater than it would have been without the

34 UNITED STATES V. CASTILLO

enhancement, assuming the district court would have

sentenced Castillo within the advisory sentence range.

Surely, neither Kisor nor Stinson permitted the Sentencing

Commission “to invoke its general interpretative authority

via commentary . . . to impose such a massive impact on a

defendant with no grounding in the guidelines themselves.”

Winstead, 890 F.3d at 1092.

VI.

Because the text of § 4B1.2(b) unambiguously does not

include inchoate offenses, and because we are no longer

permitted to rely on the commentary of an unambiguous

guideline after Kisor, we hold that Castillo’s conspiracy

conviction is not a “controlled substance offense” under the

career offender enhancement, § 4B1.1.9 Accordingly, the

district court erred by relying on the PSR’s recommendation

that Castillo qualifies as a career offender. We vacate

Castillo’s sentence and remand for resentencing consistent

with this opinion.

VACATED and REMANDED.

9

Because Castillo does not qualify as a career offender for sentencing

enhancement purposes, we do not reach the issue of whether Castillo’s

state court convictions qualify as controlled substance offenses.