United States v. James Chandler

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 22-1786

_______________

UNITED STATES OF AMERICA

v.

JAMES CHANDLER,

Appellant

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-21-cr-00049-001)

District Judge: Honorable R. Barclay Surrick

_______________

Argued

April 26, 2023

Before: JORDAN, KRAUSE, and BIBAS, Circuit Judges

(Filed: June 11, 2024)

_______________

Abigail E. Horn [ARGUED]

FEDERAL COMMUNITY DEFENDER OFFICE

EASTERN DISTRICT OF PENNSYLVANIA

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant

Eileen C. Geiger [ARGUED]

Justin Oshana

U.S. ATTORNEY’S OFFICE

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

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OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

James Chandler used a fake gun to twice rob on-duty

United States Postal Service employees. In one of the

robberies, he also kidnapped his victim. His use of what

appeared to be a revolver was meant to scare his victims into

compliance, and it did. The District Court therefore did not err

when it enhanced Chandler’s sentence for using the replica gun

in the robberies and the kidnapping, nor in accepting his guilty

plea to armed robbery charges. As for the kidnapping,

Chandler’s motivation was, at least in part, that the mail carrier

was a government employee, so a further sentence

enhancement was justified. We will therefore affirm his

conviction and sentence.

2

I. BACKGROUND

Early one evening, a uniformed mailman parked his

delivery truck in West Philadelphia and began his rounds.

Chandler walked up behind him, pulled out what appeared to

be a handgun, and pressed the muzzle to his back. Chandler

was wearing a blue zip-up sweatshirt emblazoned with the

letters “USPS.” He threatened to kill the mailman and

demanded packages, cards, and cash. He then forced the

mailman to get into the back of the truck, before fleeing with

four packages and several dollars.

A few weeks later, Chandler struck again. This time,

the victim was a mail carrier who had parked her mail truck in

West Philadelphia, half a mile from the location of the first

robbery. Chandler, wearing the same USPS sweatshirt, again

approached from behind and pointed the same fake revolver at

his victim. He made her open the truck and put about three

dozen packages into sacks. Under duress, she drove him to an

address a mile away. Chandler then fled with the packages.

The next day, police arrested Chandler. In his

waistband, they found the revolver, which turned out to be a

gun replica that could not be fired. The postal carrier he robbed

identified him and he confessed to stealing packages. He

consented to a search of his apartment, where postal inspectors

found the blue zip-up USPS sweatshirt stuffed inside a

pillowcase.

Chandler was charged with two counts of armed

robbery of a postal worker, under 18 U.S.C. § 2114(a), and one

count of kidnapping a government employee, under

3

§ 1201(a)(5). He pled guilty to all three charges. As relevant

here, the parties disputed two enhancements at sentencing: one,

for using a dangerous weapon during a kidnapping and a

robbery, U.S.S.G. §§ 2A4.1(b)(3), 2B3.1(b)(2)(D), and the

other, for kidnapping a government employee, id.

§ 3A1.2(a)(1)(A), (a)(2). Agreeing with the government, the

sentencing judge imposed both enhancements. Those rulings

resulted in a final offense level of 37 and a guidelines range of

262 to 327 months. The judge sentenced Chandler to the

bottom of that range: 262 months’ imprisonment, with 5 years

of supervised release.

Chandler now appeals the application of those two

enhancements, arguing that the judge erred in holding that a

replica of a gun constitutes a dangerous weapon, and further

erred in holding that his kidnapping of the second mail carrier

was motivated by her status as a government employee. He

also appeals his conviction for armed robbery, rather than

unarmed robbery, again arguing that a replica firearm is not a

dangerous weapon. 1

1

Chandler appeals his sentence, despite pleading guilty

to the offenses without a plea agreement, as he preserved his

appellate rights regarding “rais[ing] an objection that [the

District Court] varied upward from the sentencing guidelines

improperly or departed upwards from the sentencing

guidelines improperly[.]” (J.A. at 29.) He also appeals his

armed robbery conviction, arguing that the District Court erred

by accepting his guilty plea to armed robbery because he only

used a replica firearm. See infra Section II.B.

4

II. DISCUSSION 2

A. Under the Guidelines, a Replica Firearm Is a

“Dangerous Weapon” 3

The sentencing guidelines provide for enhanced

sentences for both kidnapping and robbery if “a dangerous

weapon” was used. Id. §§ 2A4.1(b)(3) (kidnapping);

2B3.1(b)(2)(D) (robbery). Chandler contests the dangerous-

weapon enhancements to both his robbery and kidnapping

charges, given that he did not use a real gun. “The government

bears the burden of proving by a preponderance of the evidence

that” the enhancements are applicable. United States v.

Napolitan, 762 F.3d 297, 309 (3d Cir. 2014).

The relevant guidelines sections do not define

“dangerous weapon,” but the guidelines’ commentary defines

the term to include, besides “an instrument capable of inflicting

death or serious bodily injury,”

an object that is not an instrument capable of

inflicting death or serious bodily injury but []

closely resembles such an instrument; or

[something] the defendant used … in a manner

2

The District Court had jurisdiction under 18 U.S.C.

§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a).

3

We review the District Court’s interpretation of the

guidelines de novo. United States v. Grier, 475 F.3d 556, 570

(3d Cir. 2007) (en banc).

5

that created the impression that the object was

such an instrument (e.g., a defendant wrapped a

hand in a towel during a bank robbery to create

the appearance of a gun).

U.S.S.G. § 1B1.1 cmt. n.1(E).

That comment informed our jurisprudence for more

than 30 years, but reliance on it has recently become

questionable. 4 The Supreme Court held in Kisor v. Wilkie, 139

S. Ct. 2400 (2019), that courts must perform a “now-essential”

textual analysis before turning to the commentary. See United

States v. Adair, 38 F.4th 341, 349-50 (3d Cir. 2022) (citing

Kisor, 139 S. Ct. at 2415-18). Unless the guideline’s text is

ambiguous and the comment provides clarity, the text alone

controls. United States v. Nasir, 17 F.4th 459, 471 (3d Cir.

2021) (en banc).

Ambiguity is thus the key to permissible reliance on the

guideline’s commentary. The Supreme Court has instructed

that a regulation is “genuinely ambiguous … after a court has

resorted to all the standard tools of interpretation” and come up

4

Prior to 2022, we uniformly held that the use of fake

or simulated firearms in furtherance of crimes like robbery

qualified as use of a “dangerous weapon” subject to sentencing

enhancement under the guidelines. See, e.g., United States v.

Bell, 947 F.3d 49, 62 (3d Cir. 2020) (toy gun); United States v.

Hoffa, 587 F.3d 610, 615-16 (3d Cir. 2009) (hand in a pocket);

United States v. Orr, 312 F.3d 141, 143-44 (3d Cir. 2002)

(dismantled pellet gun); United States v. Dixon, 982 F.2d 116,

121-24 (3d Cir. 1992) (hand in a towel).

6

short. Kisor, 139 S. Ct. at 2414. “[O]nly when that legal

toolkit is empty and the interpretive question still has no single

right answer can a judge … wave the ambiguity flag[.] … To

make that effort, a court must carefully consider the text,

structure, history, and purpose of a regulation, in all the ways

it would if it had no agency to fall back on.” Id. at 2415

(cleaned up).

Even if genuine ambiguity does exist, we still will not

defer to the agency’s reading unless it is reasonable. Id. The

commentary must clarify the ambiguity rather than change the

meaning of the text. Kisor, 139 S. Ct. at 2415-16. If the

commentary is reasonable, we afford it controlling deference;

but only if the agency’s interpretation: (1) was “one actually

made by the agency”; (2) “implicate[s the agency’s]

substantive expertise”; and (3) “reflect[s] fair and considered

judgment.” Id. at 2416-17 (internal quotation marks omitted).

Chandler says that the term “dangerous weapon” is not

genuinely ambiguous so we cannot rely on the commentary.

Alternatively, he argues that, even if the term is ambiguous, the

commentary is an unreasonable interpretation of the guideline.

We are unpersuaded by his arguments for two reasons.

First, the term “dangerous weapon” is indeed genuinely

ambiguous, being subject to a range of views, so we can rely

on the Sentencing Commission’s commentary to reasonably

interpret the phrase to include replica firearms. Second, the

meaning of the words “dangerous weapon,” as understood

from Supreme Court precedent at the time the pertinent

guideline, § 1B1.1, was promulgated, encompassed replica

firearms, thus making the commentary reasonable and entitled

7

to controlling weight. We address each of those points more

fully in turn.

1. The Phrase “Dangerous Weapon” Is

Genuinely Ambiguous

Federal courts have grappled for many years with the

scope of the term “dangerous weapon” in sentencing

decisions. 5 This debate continued with the recent split decision

of the Sixth Circuit in United States v. Tate, a case involving a

bank robber who placed his hand in a shoulder bag in a manner

that led the teller to believe that the robber was about to pull

out a gun. 999 F.3d 374, 376 (6th Cir. 2021). A majority of

5

Compare United States v. Mahler, 891 F.2d 75, 77 (4th

Cir. 1989) (holding that a displayed replica handgun used in a

bank robbery was not covered by the dangerous-weapon

enhancement), with United States v. Shores, 966 F.2d 1383,

1388 (11th Cir. 1992) (holding the opposite for merely

possessing – never brandishing – a toy gun in an attempted

bank robbery), and Hoffa, 587 F.3d at 616 (applying the

enhancement to a bank robber who placed his hand in his

pocket to create the appearance of a firearm); United States v.

Sturgis, 48 F.3d 784, 786-89 (4th Cir. 1995) (recognizing that

a bite from an HIV-positive prisoner could be an assault with

a “dangerous weapon”), with United States v. Taylor, 961 F.3d

68, 75 (2d Cir. 2020) (refusing to apply the enhancement to a

robber who placed his hand on his waistline to suggest a

firearm), and United States v. Rocha, 598 F.3d 1144, 1157 (9th

Cir. 2010) (holding that defendant did not use a dangerous

weapon when he used his bare hands to pull someone’s feet out

from under them, slamming them onto a concrete floor).

8

the panel affirmed the application of the dangerous-weapon

sentencing enhancement but one judge saw the matter

differently and concluded that “[n]o ordinary English speaker

… would say that a robber possesses a dangerous weapon

when the robber merely pretends to possess one.” Id. at 386

(Murphy, J., concurring) (emphasis in original). The majority

held, however, that “literal or dictionary definitions of words

will often fail to account for settled nuances or background

conventions that qualify the literal meaning … of legal

language.” Id. at 378 (majority opinion) (internal quotation

marks omitted). In the majority’s view, “creating the

impression of possessing a gun can trigger the sentencing

enhancement applicable to robberies.” Id. at 381.

Our dissenting colleague in this case, like the

concurring judge in Tate, defines “dangerous weapon” as “one

by the use of which a fatal wound may probably or possibly be

given.” Dissent at 2 (quoting Dangerous Weapon, Black’s Law

Dictionary (5th ed. 1979); and citing Dangerous Weapon (def.

1), Ballentine’s Law Dictionary (3d ed. 1969), and Weapon

(def. 1), Webster’s Third New International Dictionary

(1966)). This ends the debate for him. And that definition of

course fits the words, but it is not the only meaning. Both the

Black’s and Ballentine’s definitions encompass a broader

definition of the words “dangerous weapon” than the dissent

suggests.

The Black’s definition notes that “the manner of use

enters into the consideration as well as other circumstances[.]”

Dangerous Weapon, Black’s Law Dictionary (5th ed. 1979).

Similarly, later, the sixth edition of the same dictionary says

that “[w]hat constitutes a ‘dangerous weapon’ depends not on

nature of the object itself but on its capacity, given manner of

9

its use, to endanger life or inflict great bodily harm.”

Dangerous Weapon, Black’s Law Dictionary (6th ed. 1990);

see also Weapon, Black’s Law Dictionary (6th ed. 1990) (“An

instrument of offensive or defensive combat, or anything used,

or designed to be used, in destroying, defeating, threatening,

or injuring a person.” (emphases added)). As words change

meaning over time, not just when a new edition of Black’s Law

Dictionary is issued, a more contemporaneous edition, issued

three years after the guideline 6 rather than nine years earlier,

provides more persuasive evidence of how the guidelines’

drafters used the word at the time the dangerous-weapon

enhancement was adopted. Thus, in 1987, manner of use,

including the potential to create harm through threats, was

most likely part of the understanding of how to define a

“dangerous weapon.”

More to the point, however, while providing guidance,

dictionaries do not create precedent. The Supreme Court does.

As the majority in Tate observed, 999 F.3d at 378-79, the

phrase “dangerous weapon” is a legal term of art that for

decades has embraced a functional meaning as reflected in the

Supreme Court’s opinion in McLaughlin v. United States, 476

U.S. 16, 17 (1986). This must be taken into account: “[W]e do

not woodenly interpret a legal text ‘in a vacuum,’ but instead

discern ‘the meaning of a statement’ in a law from the ‘context

in which it is made[.]’” Tate, 999 F.3d at 378 (internal citation

omitted) (first quoting Abramski v. United States, 573 U.S.

169, 179 (2014); and then quoting United States v. Briggs, 141

S. Ct. 467, 470 (2020)).

6

The dangerous-weapon enhancement was present in

the first guidelines, promulgated on November 1, 1987.

10

One year before the dangerous-weapon enhancement

appeared in the guidelines, the McLaughlin Court held that

something that looks like an operable gun – there, an unloaded

gun – qualifies as a “dangerous weapon” because it was

characteristically dangerous, can instill fear in the average

citizen, can be used as a bludgeon, and can invite a dangerous

and violent response. 7 476 U.S. at 17-18 (holding that each

reason is “independently sufficient [to] support [that]

conclusion”). Thus, the presence of even a replica of a gun

raises the temperature during a crime. It increases the

likelihood that a reasonable police response will include the

use of deadly force, which may also create “greater risk to the

physical security of victims, bystanders, and even the

7

Our dissenting colleague focuses on the Supreme

Court’s footnote in McLaughlin citing congressional floor

debate which “indicate[d] that Congress regarded incitement

of fear as sufficient to characterize an apparently dangerous

article … as ‘dangerous[.]’” 476 U.S. at 18 n.3. He argues that

legislative history is “irrelevant[,]” “cannot universally justify

stretching the meaning of dangerous weapon[,]” and “no

longer carries the weight that it once did.” Dissent at 5. But

we are not relying on legislative history. We are following

precedent set by the Supreme Court, which held that the fear

created by an unloaded gun is sufficient to qualify the weapon

as dangerous. Cf. Gilles v. Davis, 427 F.3d 197, 210 (3d. Cir.

2005) (following the Supreme Court’s counsel “to follow its

directly applicable precedent, even if that precedent appears

weakened by pronouncements in its subsequent decisions, and

to leave to the Court the prerogative of overruling its own

decisions.” (internal quotation marks and citations omitted)).

11

perpetrators.” United States v. Dixon, 982 F.2d 116, 123 (3d

Cir. 1992) (internal quotation marks omitted). It also increases

the risk of violent response by victims themselves, as well as

bystanders. Cf. Bruce v. Powell, No. 19-cv-13028, 2021 WL

5565166, at *4 (D.N.J. Nov. 29, 2021) (“The victim’s friend

… reached for his gun first, which provoked [the defendant] to

reach for his gun, which in turn caused the victim to reach for

his gun.”). When the guidelines enhancement was written, the

Sentencing Commission was, we can be sure, fully aware of

the Supreme Court’s analysis in McLaughlin and its legal

definition of “dangerous weapon.” 8 We are not free to ignore

8

It is also worth noting that both the 2014 and 2019

editions of Black’s Law Dictionary do more than “hint” that

“dangerous weapon” has a broader legal meaning: it directly

excerpts McLaughlin in the definition of dangerous weapon

itself. It defines “dangerous weapon” as:

[a]n object or device that, because of the way it

is used, is capable of causing serious bodily

injury.

“Three reasons, each independently sufficient,

support the conclusion that an unloaded gun is a

‘dangerous weapon.’ First, a gun is an article

that is typically and characteristically dangerous;

the use for which it is manufactured and sold is a

dangerous one, and the law reasonably may

presume that such an article is always dangerous

even though it may not be armed at a particular

time or place. In addition, the display of a gun

instills fear in the average citizen; as a

consequence it creates an immediate danger that

12

the import of McLaughlin now. We are asked to interpret the

same term (in the same robbery context) that the Supreme

Court defined in McLaughlin. Despite our dissenting

colleague’s view, we decline to bypass instruction from the

highest court of the land in favor of a fifty-year-old dictionary

definition. McLaughlin shapes our understanding of the

meaning of “dangerous weapon,” as it surely shaped the

understanding of the term had by the guidelines’ drafters.

The Sentencing Commission first defined “dangerous

weapon” in the commentary as “an instrument capable of

inflicting death or serious bodily injury.” U.S.S.G. § 1B1.1

cmt. n.1(d) (1987). 9 Within a couple of years, for the

a violent response will ensue. Finally, a gun can

cause harm when used as a

bludgeon.” McLaughlin v. U.S., 476 U.S. 16,

17-18 [] (1986).

Weapon, Black’s Law Dictionary (11th ed. 2019); Weapon,

Black’s Law Dictionary (10th ed. 2014). Thus, it seems plain

to us that the term “dangerous weapon” encompasses two

different definitions of dangerous weapon: one of an

instrument inherently dangerous and one of an instrument or

article perceived as dangerous or that could cause danger,

while not dangerous per se.

9

Our dissenting colleague suggests that the

Commission rejected McLaughlin the year after its issuance.

However, for support he cites to informal agency guidance that

discusses “toy guns” (not replicas) and expressly disclaims that

it “does not necessarily represent the official position of the

Commission, should not be considered definitive, and is not

13

“purpose[] of … clarify[ing] the definition of a dangerous

weapon[,]” the Commission amended the commentary to say,

“[w]here an object that appeared to be a dangerous weapon was

brandished, displayed, or possessed, treat the object as a

dangerous weapon[.]” Id. app. C, amend. 71 (1989) (emphasis

added). That 1989 amendment, and later amendments, were

added to be “in accord[,]” id. app. C, amend. 601 (2003), with

decisions like ours in United States v. Dixon, where we applied

the dangerous-weapon enhancement to a bank robber who

wrapped a towel over her hand and pointed menacingly at bank

employees. 982 F.2d at 119; see also United States v. Davis,

635 F.3d 1222, 1225 (D.C. Cir. 2011) (“[T]he current version

of the Commentary [regarding the dangerous-weapon

enhancement] all but codifies the holding in United States v.

Dixon[.]”).

Our decision in Dixon relied heavily on McLaughlin to

hold that the Commission intended to “equate[] the image of a

‘dangerous weapon’ with its reality for purposes of sentence

enhancement.” Dixon, 982 F.2d at 121. And rightly so; this

equation allows the guideline to conform to the reality of the

dangers created by things that appear to be guns. The

Commission’s 1989 Amendment can thus be seen as

binding upon the Commission, [or] the court[.]” U.S.

Sentencing Commission Answers Questions Most Frequently

Asked About the Sentencing Guidelines, 1 Fed. Sent’g Rep.

423, 423, 425-26 (1989). Additionally, the Commission

amended the commentary just six months after that guidance

to encompass items such as replica or toy guns, in accord with

McLaughlin. U.S.S.G. app. C, amend. 71 (1989) (amended

November 1, 1989).

14

purposefully clarifying the definition of “dangerous weapon”

rather than expanding it. 10 Cf. Kisor, 139 S. Ct. at 2412 (the

presumption that the promulgating agency “is in the better

position [to] reconstruct its original meaning” “holds good for

a significant category of contemporaneous readings. Want to

know what a rule means? Ask its author.”) (internal quotation

marks and citation omitted); U.S.S.G. app. C, amend. 71

(1989) (promulgated two years after the guideline).

Notably, every time we have analyzed this issue after

the 1989 Amendment we have held that instruments used

during the commission of a crime to give the appearance or

prompt the perception of a bona fide dangerous weapon were

10

Our dissenting colleague seems wary of the

commentary to the Amendment stating that it merely

“clarifies” the Guideline. Dissent at 4; U.S.S.G. § 1B1.1 app.

C, amend. 71 (1989). We think, however, that it is appropriate

to take the commentary’s assertion of the Amendment’s

purpose at face value because the Amendment indeed seems to

be just a clarification. While we have rejected application of a

later guideline’s commentary to earlier guidelines based on ex

post facto challenges, see United States v. Menon, 24 F.3d 550,

567 (3d Cir. 1994), that is not at issue here. Rather, outside of

that context, we have said, “[W]hen an amendment to a

guideline is intended to clarify the meaning of the existing

guideline, the court [should] give it substantial weight in

interpreting that guideline.” Id. at 567 (citations omitted and

emphasis added).

15

properly a basis for a “dangerous-weapon” enhancement. 11

See, e.g., supra n.4. The only cases Chandler cites for support

of his position were decided before the 1989 Amendment, and

still support application of the enhancement. United States v.

Dzielinski, 914 F.2d 98, 102 (7th Cir. 1990) (affirming the

district court’s application of the enhancement pre-1989

Amendment because it “relied upon the failure of the

[g]uidelines to adequately consider the threat posed by the

possession of what appeared to be a dangerous weapon”);

United States v. Mahler, 891 F.2d 75, 77 (4th Cir. 1989)

(similarly affirming the district court’s “plainly reasonable”

action of “treating the replica of a gun as an empty gun for the

purpose of increasing the sentencing level” pre-Amendment).

Chandler does not point to any post-1989 cases that have

maintained his position, and we could not find any. 12

11

Three cases decided this past year also came out the

same way. See generally United States v. Jefferson, No. 22-

1306, 2023 WL 2378510 (6th Cir. Mar. 7, 2023) (passing a

note while robbing a bank indicating that he had a gun and,

during one of the robberies, miming having a gun by putting

his hand in his pocket and making a gun-like hand motion);

United States v. Wen, No. 22-50207, 2023 WL 3495820 (9th

Cir. May 17, 2023) (possession of car, hammer, box cutter, and

rope in connection with offense constituted dangerous

weapons); United States v. Padilla, 651 F. Supp. 3d 1261

(D.N.M. 2023) (lifting his shirt to show cashier an object that

looked like a gun).

12

Taylor, 961 F.3d at 75, decided a few years ago, is the

closest thing to support for Chandler’s position. The Second

Circuit held that a robber merely placing his hand “near his

16

So, while nothing in the structure of § 1B1.1 of the

guidelines sheds light on the meaning of “dangerous weapon,”

the text, history, and purpose of the guideline suggest that the

term does not have just one, narrow meaning. That does not,

however, remove all question of the scope of the term, though

it helps. Because the term “dangerous weapon” retains

arguable ambiguity even after a consideration of “the text,

structure, history, and purpose of [the] regulation,” Kisor, 139

S. Ct. at 2415, we now turn to the Commission’s commentary

and ask whether it is “reasonable” and “entitle[d] … to

controlling weight[,]” id. at 2415-16.

2. The Commentary Definition is

Reasonable and Entitled to Controlling

Weight and, Thus, Deference

The Commission’s commentary is a reasonable reading

of the guideline’s text, falling within “the outer bounds of

permissible interpretation.” Id. at 2416. As examined above,

the text of § 1B1.1 is ambiguous because the term “dangerous

weapon” can be read literally to focus on inherently dangerous

weapons, such as firearms, and it can also be read to encompass

objects or actions that simulate an inherently dangerous

waistband, not inside it[,]” to suggest he had a firearm did not

constitute a “dangerous weapon” for enhancement purposes.

Id. But the court’s analysis strongly emphasized the fact that

the robber’s hand was “unconcealed” and could therefore “not

appear to be itself a weapon.” Id. And the court drew a

contrast with caselaw that uniformly held that a “concealed”

hand could “itself appear[] to be a dangerous weapon.” Id. at

76.

17

weapon and thereby create dangerous conditions or reactions.

The commentary’s gloss defines “dangerous weapon” to

include both of those plausible meanings, thus following

McLaughlin and being well within the bounds of reasonable

interpretation of “dangerous weapon” as a legal term of art, not

a mere “fiction[,]” as the dissent suggests. U.S.S.G. § 1B1.1

cmt. n.1(E) (2021); id. app. C, amend. 71 (1989); Dissent at 5.

Moreover, under the longstanding prior-construction

canon, when “judicial interpretations have settled the

13

meaning of an existing statutory provision, repetition of the

same language in a new statute indicates, as a general matter,

the intent to incorporate its … judicial interpretations as well.”

Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S.

71, 85 (2006) (rejecting a narrow interpretation of a statutory

term when the Supreme Court had previously adopted a broad

construction of the same term used in a different statute). 14

13

See Shapiro v. United States, 335 U.S. 1, 16 (1948)

(Vinson, C.J.) (“In adopting the language used in the earlier

act, Congress ‘must be considered to have adopted also the

construction given by this Court to such language, and made it

a part of the enactment.’” (quoting Hecht v. Malley, 265 U.S.

144, 153 (1924)).

14

See also Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts 324-25 (2012) (when

the Supreme Court authoritatively interprets a term as it is used

in a particular field of law, that term acquires a “technical legal

sense … that should be given effect in the construction of later-

enacted” laws and rules governing that field, even when based

on a single decision).

18

That canon applies when interpreting the guidelines as well.

The Sentencing Commission is “a body that straddles both the

legislative and judicial branches of the government,” Nasir, 17

F.4th at 470, and is steeped in sentencing policy and criminal

law jurisprudence, cf. United States v. Mercado, 81 F.4th 352,

360 (3d Cir. 2023) (finding the Sentencing Commission

“optimally positioned to opine” on criminal sentencing due to

its “expertise”). 15 It could “hardly have been unaware[,]”

Merrill Lynch, 547 U.S. at 85, of the landmark McLaughlin

decision when it employed the phrase “dangerous weapon” in

the guidelines. With that understanding, and because the

application note’s interpretation is consistent with the text,

history, and purpose of § 1B1.1, we conclude that the

Commission’s definition is reasonable and reflects its “fair and

considered judgment.” Kisor, 139 S. Ct. at 2417. The

definition of “dangerous weapon” in § 1B1.1’s commentary

should therefore be afforded deference. See id. at 2415-18

(citing generally Auer v. Robbins, 519 U.S. 452 (1997)).

3. Lenity Cannot Save Chandler’s Position

Chandler and our dissenting colleague also contend that

the rule of lenity should resolve any ambiguity in Chandler’s

favor. Chandler’s argument relies on the assumption that his

replica firearm was not dangerous because it could not be used

as a bludgeon, a possibility noted in McLaughlin. This, of

course, ignores the force of the arguments just outlined

concerning the other threats created by a plausible facsimile of

15

Due to the commentary falling within the

Commission’s “substantive expertise[,]” we can give it

controlling weight. Kisor, 139 S. Ct. at 2417.

19

a gun, including the increased risk that a violent response will

be triggered and the fear instilled in victims, both of which

were present here and which McLaughlin emphasized are

“each independently sufficient.” 476 U.S. at 17. But, even

taking Chandler’s argument on its own terms, it comes up

short. The record does not support the assumption that his

replica revolver could not be a bludgeon. 16 The record shows

only that he admitted that he “placed … [a] replica handgun”

on the back of a mail carrier and that, when he was arrested,

the police found the revolver in his waistband and later

confirmed it to be a replica. (J.A. at 30.) A replica is “a copy

exact in all details,” Replica, Merriam-Webster’s Collegiate

Dictionary (10th ed. 2002), or a “reasonably exact duplicate[,]”

Replica, Black’s Law Dictionary (11th ed. 2019). That

certainly implies a close similarity in heft. Thus, the fake gun

could have been used in a pistol whipping, which, all by itself,

makes his replica a dangerous weapon.

As noted earlier, the government must prove

enhancements by a preponderance of the evidence. Napolitan,

762 F.3d at 309. While there is, as we have discussed, legal

ambiguity in the phrase “dangerous weapon,” there is no such

ambiguity in Chandler’s conduct. It clearly falls within the

scope of the relevant application note, U.S.S.G. § 1B1.1 cmt.

n.1(E), which we have concluded can properly be considered.

See generally Nasir, 17 F.4th at 471.

16

The District Court adopted the facts from the

presentence report at sentencing, including Chandler’s use of a

replica firearm during his crimes. Neither the District Court,

nor any of the parties, discussed or placed any evidence in the

record as to the weight of the replica firearm.

20

Our dissenting colleague disagrees, and argues that

when a guideline is ambiguous, before deferring to the

Sentencing Commission’s commentary, we must first apply

the rule of lenity. We disagree.

Again, Kisor instructs courts to “exhaust all the

‘traditional tools’ of construction[,]” including “the text,

structure, history, and purpose of a regulation[.]” 139 S. Ct. at

2415. Those interpretative tools do not typically imply resort

to judicial doctrines. See, e.g., Shular v. United States, 589

U.S. 154, 166-67 (2020) (Kavanaugh, J., concurring) (“[W]hen

‘a reviewing court employs all of the traditional tools of

construction, the court will almost always reach a conclusion

about the best interpretation,’ thereby resolving any perceived

ambiguity. That explains why the rule of lenity rarely comes

into play.” (quoting Kisor, 139 S. Ct. at 2448 (Kavanaugh, J.,

concurring in judgment))). If they did, the rule of lenity – itself

a judicial doctrine – would seem to trump the traditional tools

of interpretation any time ambiguity arises, which would

render the tools irrelevant.

Moreover, the next analytical step called for by Kisor

when a regulation is found to be genuinely ambiguous is an

inquiry into the agency’s interpretation of the regulation, not

an application of separate judicial doctrines. See 139 S.Ct. at

2416. Similarly, nowhere in the Nasir majority opinion –

which constitutes our application of Kisor to the guidelines –

do we mention the rule of lenity. 17 17 F.4th at 471-72

(discussing and applying Kisor).

17

Although we noted that the rule of lenity might have

a role to play in the United States v. Nasir concurrence, 17

21

Nor does application of the rule of lenity make sense

here. First, “the rule of lenity only applies if, after seizing

everything from which it can be derived, we can make no more

than a guess as to what Congress intended.” United States v.

$734,578.82 in U.S. Currency, 286 F.3d 641, 658 (3d Cir.

2002) (emphasis added) (quoting Muscarello v. United States,

524 U.S. 125, 138 (1998)). Here, we can look to the

commentary, which clarifies what is otherwise ambiguous,

obviating the need to consider the rule of lenity. If lenity

principles applied whenever the sentencing guidelines are held

to be ambiguous, then like the other Kisor interpretative tools,

commentary issued by the sentencing commission would be

made superfluous. 18 That surely could not have been

F.4th at 472-74 (Bibas, J., concurring), that view was not

adopted by the majority, and is not a binding command to let

lenity displace the Sentencing Commission’s guidance.

18

Our dissenting colleague says that the rule of lenity

only displaces commentary that is not favorable to the

defendant. That assumes two things that we do not.

First, it assumes guidelines commentary can properly be

broader or harsher than the guidelines themselves. It cannot.

As discussed above and in Nasir, cf. 17 F.4th at 469, we do not

defer to commentary if it expands the guideline at issue. Here,

the commentary “purposefully clarif[ies] the definition of

‘dangerous weapon’ rather than expanding it.” Supra at page

12. Thus, deference is appropriate, and the rule of lenity has

no role.

Second, accepting arguendo that the commentary

differs from the guidelines, our colleague’s position also

assumes that all judges see alike on whether commentary is

22

Congress’ intent. 19 Nor ours in Nasir. The Commission’s

writing of the commentary, and our examination of it as

needed, is not designed as an exercise in futility.

The District Court correctly applied the dangerous-

weapon enhancement to Chandler because of his use of a

replica firearm.

“neutral or defendant friendly[.]” Dissent at 7 (cleaned up).

That is not so, as is evident here, since we see the commentary

as explaining, not expanding, the scope of the guideline.

Our colleague also states that “lenity … must come

before deference” as a “traditional canon[] of statutory

construction[.]” Dissent at 7 (internal quotation marks

omitted). That undermines his statement that the rule of lenity

would only displace commentary which is unfriendly to the

defendant. Were we to apply the rule of lenity first, we would

never have occasion to defer to commentary, as we would have

already decided to apply the most defendant-friendly reading

of the guideline, regardless of what the commentary had to say.

19

Cf. United States v. Cooper, 396 F.3d 308, 312 (3d

Cir. 2005), as amended (Feb. 15, 2005) (“It is a well known

canon of statutory construction that courts should construe

statutory language to avoid interpretations that would render

any phrase superfluous.” (citing TRW Inc. v. Andrews, 534

U.S. 19, 31 (2001)).

23

B. The District Court Did Not Err in Accepting

Chandler’s Guilty Plea

For the first time on appeal, Chandler argues that the

District Court erred by accepting his guilty plea to armed

robbery. 20 Because he only used a replica firearm, he claims

he was effectively unarmed. Armed robbery, versus unarmed

robbery, increases the maximum sentence from ten years to

twenty-five years. 18 U.S.C. § 2114(a). For the same reasons

that the District Court did not err in applying the dangerous-

weapon enhancement, we conclude that the Court did not

commit plain error in accepting the armed robbery guilty plea.

Chandler was indeed armed with a dangerous weapon when he

robbed the mail carriers.

20

We review unpreserved claims for plain error, which

is more deferential than de novo or clear error review. Fed. R.

Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32

(1993). “There must be an ‘error’ that is ‘plain’ and that

‘affect[s] substantial rights.’ … Rule 52(b) leaves the decision

to correct the forfeited error within [our] sound discretion …

and [we] should not exercise that discretion unless the error

‘seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.’” Olano, 507 U.S. at 732 (first and last

alterations in original).

24

C. The District Court Properly Enhanced

Chandler’s Sentence for Kidnapping a

Government Employee in the Course of Her

Duties 21

The District Court enhanced Chandler’s kidnapping

sentence under U.S.S.G. § 3A1.2(a) and (b). That

enhancement applies if the victim was a “government officer

or employee,” and “the offense of conviction was motivated by

such status[.]” Id. The Court found that Chandler’s motivation

to kidnap the mail carrier was based in part on her status as a

government employee. The parties agree that she was a

government employee; therefore, the only question is whether

the kidnapping was “motivated by such status.” Id.

§ 3A1.2(a)(2).

“Motive is a question of fact[,]” Monteiro v. City of

Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006), and we review the

District Court’s factual findings for clear error. United States

v. Richards, 674 F.3d 215, 220 (3d Cir. 2012). The record with

respect to the District Court’s finding on Chandler’s motive is

21

We review the District Court’s interpretation of the

sentencing guidelines de novo, United States v. Adair, 38 F.4th

341, 347 (3d Cir. 2022), but we accept its findings of fact

“unless they are clearly erroneous and … give due deference

to the [D]istrict [C]ourt’s application of the guidelines to the

facts[,]” 18 U.S.C. § 3742(e); United States v. Richards, 674

F.3d 215, 218, 219 n.2 (3d Cir. 2012); see also United States

v. Napier, 273 F.3d 276, 278 (3d Cir. 2001) (for sentencing

guidelines decisions, “[f]actual findings … are simply

reviewed for clear error”).

25

admittedly scant. The Court stated only that “[the] postal

workers … had their uniforms on and Mr. Chandler knew

exactly what he was doing.” (J.A. at 43-44.) But while the

judge did not give comprehensive remarks, he was not silent

either, and we do not require perfect explanations from

sentencing judges. Cf. DiFederico v. Rolm Co., 201 F.3d 200,

208 (3d Cir. 2000) (“[I]t is [our] responsibility … to accept the

ultimate factual determination of the [District Court] unless

that determination either (1) is completely devoid of minimum

evidentiary support displaying some hue of credibility, or (2)

bears no rational relationship to the supportive evidentiary

data.” (internal quotation marks omitted)).

A defendant may be said to be motivated by a victim’s

status as a government employee when that status has

“influenc[ed] [the defendant’s] choice” to commit the crime.

Motivate (def. 1) & Motive (def. 1b), Webster’s Third New

International Dictionary (1986); see also Motive, Black’s Law

Dictionary (11th ed. 2019) (“Something, esp[ecially] willful

desire, that leads one to act.”). Chandler argues that knowledge

alone cannot trigger this enhancement. We agree. 22 See

United States v. Sulik, 929 F.3d 335, 337-38 (6th Cir. 2019).

Instead, a victim’s status as a government employee must have

been at least part of the reason why the defendant committed

the crime. Cf. Hassan v. City of New York, 804 F.3d 277, 297

(3d Cir. 2015) (“Motive asks … why did he do it?”) (cleaned

up). That status need not, however, be the only reason for the

22

Some degree of knowledge must be present, however.

Section 3A1.2(a) implicitly includes a knowledge requirement

because, as common sense dictates, to be motivated by a

victim’s status, the defendant must know it.

26

crime; multiple motives can coexist. See Motivate (def. 1),

Webster’s Third New International Dictionary (1986) (giving

examples of “factors that [motivate] people”); United States v.

Feeback, 53 F.4th 1132, 1135 (8th Cir. 2022) (applying the

“official victim” enhancement when a defendant made illegal

threats to Veterans Affairs employees regarding his benefits

because “[i]t ma[de] no difference that money may have [also]

played a role”).

The record here amply supports that the robberies were

motivated by the victims’ status as postal workers. Chandler

donned a sweatshirt emblazoned with “USPS,” short for

United States Postal Service, and robbed the two USPS

employees, in the same area, separated by just a few weeks. 23

The question is whether that motivation can be imputed to the

kidnapping of his second victim. 24

23

Chandler asserts that his sole motivation for the

robberies was “to obtain packages from a delivery person,

regardless of employment status” (Opening Br. at 14, 20), not

“to steal packages carried by the Postal Service.” (Answering

Br. at 12). He insists that his motivation was purely economic

and that had he “taken packages from a UPS, FedEx, or

Amazon driver, his motive would have been the same.” (Reply

Br. at 6.) But Chandler did not rob a private package delivery

contractor. He robbed two USPS workers while wearing a

USPS sweatshirt. There is no evidence in the record that he

robbed or attempted to rob any other package delivery workers.

For purposes of analysis, we look only to the second

24

robbery, which occurred contemporaneously with the

kidnapping of the mail carrier. The government urges us to

27

The Guideline’s enhancement states that the “offense of

conviction” must have been motivated by the government

employee status. U.S.S.G. § 3A1.2(a). The government asks

us to read “offense of conviction” broadly and to consider all

relevant conduct regarding both the robberies and the

kidnapping. 25 Chandler says we should focus on the language

of the indictment pertaining to the kidnapping count and its

elements, and not “mix and match” counts to apply the

enhancement. (Opening Br. at 19.) He relies on United States

v. Boney, but that case addresses the choosing of an applicable

guideline. 769 F.3d 153, 161 (3d Cir. 2014). It does not stand

for the proposition that a court cannot consider all related

conduct when deciding whether to apply an enhancement. Id.

While the “‘offense of conviction’ includes only the

substantive crime for which a particular defendant was

convicted” and “the facts undergirding” it, United States v.

Pressler, 256 F.3d 144, 157-58 n.7 (3d Cir. 2001), our decision

in United States v. Murillo makes clear that the “conduct of the

consider Chandler’s first armed mail theft, which occurred a

month prior, as “relevant conduct” to determine his motive for

kidnapping the mailwoman. (Answering Br. at 16 (“[T]he

[D]istrict [C]ourt’s factual determinations may be based on the

record in its entirety[.]”).) We need not consider that earlier

incident because the circumstances of the second robbery are

sufficient to demonstrate his motivation for the kidnapping.

25

The enhancement was not added to the robbery

convictions since the robbery-of-a-postal-employee statute

already takes the victim’s status into account. 18 U.S.C.

§ 2114(a) (robbing a postal service worker).

28

offense of conviction” includes “all conduct in furtherance of

the offense of conviction[,]” 933 F.2d 195, 199 (3d Cir. 1991).

Though Murillo addressed sentencing enhancements for a

defendant’s role in the offense, its reasoning applies equally to

the question of motive. Often, “a court simply cannot

determine [motive] by looking at only the specific elements of

the offense of conviction. [Motive] is a concept that requires a

court to consult the events leading up to the offense of

conviction, not just a snapshot of events at the instant the

offense occurred.” Id. at 200. So, while we focus on the

motive for the kidnapping, we also consider the robbery that

immediately preceded and prompted it. The two “were

inextricably intertwined[.]” (Answering Br. at 18.) But for the

robbery, there is no reason to believe that the kidnapping would

have occurred at all.

Chandler also invokes United States v. Cherry, where

we held that a court cannot “look through” the enhanced

conviction to an underlying offense to find an official victim.

10 F.3d 1003, 1011 (3d Cir. 1993) (rejecting applying the

enhancement based on a flight from prosecution offense, which

lacks an official victim, or any victim at all). That, however,

says nothing about our case, in which the District Court looked

at the facts attendant to the kidnapping to determine Chandler’s

motive for the crime. That was appropriate, since motive can

almost never be discerned without examining circumstantial

evidence. Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016)

(“Because motivation is almost never subject to proof by direct

evidence, [one] must rely on circumstantial evidence to prove

… motive.”).

The District Court thus properly applied the official

victim enhancement to the kidnapping offense. The Court

29

stressed that Chandler had chosen to target a mail carrier in

uniform. And it adopted the Presentence Report’s finding that

the mailwoman’s government-employee status had motivated

his kidnapping. Cf. United States v. Collado, 975 F.2d 985,

990 (3d Cir. 1992) (when “the district court makes no

independent findings of fact in relation to sentencing issues,

but instead adopts the reasons set forth by the probation officer

in the presentence investigation report, we view the report as

containing the only findings of fact that support the court’s

sentencing decision”). That is a sufficient basis for us to

discern the Court’s finding of fact, although it would of course

be helpful for district courts to be more explicit.

Chandler robbed the mail carrier to steal USPS

packages from her, and he kidnapped her to get away with

those packages. The two crimes were tightly linked. By aiding

Chandler’s escape, the kidnapping served to facilitate the

robbery itself, and the motivations for the two crimes cannot

be unwound.

Most of our sister courts have read this enhancement the

same way: it applies when a defendant not only knew the

victim was a government employee but the motivation for the

criminal action also arose from the duties of the government

employee victim, as here. 26 Absent the mail carrier’s status as

26

United States v. Feeback, 53 F.4th 1132, 1134-35 (8th

Cir. 2022) (official victim enhancement applied to defendant

who made violent threats against Veterans Affairs employees

over the non-payment of benefits he thought owed to him);

United States v. Ball, 18 F.4th 445, 457 (4th Cir. 2021) (same

for defendant who fatally shot a police officer after his texts to

30

a postal service employee, she (and, thus, Chandler) would

have lacked access to the USPS mailvan and the packages

inside of it. The guideline provision is “designed to protect

government officers in the performance of their official

his girlfriend indicated that he would “kill any police officer

attempting to take him into custody”); United States v. Dávila-

Bonilla, 968 F.3d 1, 10-11 (1st Cir. 2020) (same for defendant

who illegally intimidated and threatened his probation officer

after being asked to take a random drug test); United States v.

Sulik, 929 F.3d 335, 336-38 (6th Cir. 2019) (same for

defendant who sent threatening emails to a member of

Congress because he was upset with the content of the

Representative’s statements); United States v. Watts, 798 F.3d

650, 655 (7th Cir. 2015) (same for defendant who, after losing

his excessive force civil rights case against a police officer,

threw a forty-four pound chair at the defendant immediately

after the verdict was read; the police officer “aroused the

defendant’s wrath by the exercise of police authority over

him”); United States v. Polk, 118 F.3d 286, 297-98 (5th Cir.

1997) (same for defendant who was convicted of plotting to

blow up an Internal Revenue Service building because, even

though no one was killed and the defendant did not know the

names of his intended victims, the defendant intended to “kill,

injure, or maim federal employees in the [building] solely

because those persons worked for the IRS”); United States v.

Rue, 988 F.2d 94, 95, 97 (10th Cir. 1993) (same for prisoner

who attacked a prison guard attempting to take away his

“homemade hypodermic syringe”); United States v. Sanchez,

914 F.2d 1355, 1362-63 (9th Cir. 1990) (same for a defendant

who rammed a border patrol agent with his car and physically

assaulted the agent after later being confronted).

31

duties[,]” United States v. Watts, 798 F.3d 650, 655 (7th Cir.

2015), and this is such a scenario. Thus, the court did not

clearly err in finding motive based on the status of the USPS

worker whom Chandler robbed and kidnapped.

III. CONCLUSION

Criminal defendants have long been on notice that using

an imitation of a dangerous weapon to achieve criminal ends is

the equivalent in the eyes of the law of using the real thing.

The fear instilled in victims is just as real and there remains a

real risk of violence. The District Court did not err either in

treating Chandler’s replica handgun as a dangerous weapon or

in accepting his guilty plea to armed postal robbery. Nor did

the Court err when it found that Chandler was motivated to

kidnap the mail carrier because she was a government

employee. We will therefore affirm the District Court’s

judgment in all respects.

32

United States v. Chandler, No. 22-1786

BIBAS, Circuit Judge, dissenting.

A dangerous weapon must be both dangerous and a weapon.

Fake guns are neither. Today, the majority holds otherwise.

James Chandler used a fake gun to kidnap and rob mail car-

riers. At sentencing, the District Court enhanced his sentence

twice for (1) using a “dangerous weapon” and (2) targeting a

government employee.

To affirm the first enhancement, my colleagues water down

the ordinary meaning of “dangerous weapon” by including

non-weapons that only seem dangerous. Yet text, history, and

precedent are to the contrary. And even if the phrase were

ambiguous, we should turn not to the Guidelines commentary

but to the rule of lenity.

To affirm the second one, my colleagues supply what the

District Court should have said. True, the District Court found

that Chandler knew the mailwoman was a government employee.

But it did not make the necessary link: that he had robbed and

kidnapped her because she worked for the government. So I

respectfully dissent on both sentencing issues.

I. UNDER THE GUIDELINES, A FAKE GUN IS NOT

A “DANGEROUS WEAPON”

A. The enhancement’s text requires a weapon that can

physically harm someone

We should start and end with the text. Both the kidnapping

and robbery Guidelines enhance sentences “[i]f a dangerous

weapon was used.” U.S.S.G. § 2A4.1(b)(3) (kidnapping);

accord § 2B3.1(b)(2)(D) (robbery). Yet neither those Guide-

lines nor any others define “dangerous weapon,” so we must

dig into the phrase’s ordinary meaning.

A “weapon” is “something (as a club, sword, gun, or gre-

nade) used in destroying, defeating, or physically injuring an

enemy.” Weapon (def. 1), Webster’s Third New International

Dictionary (1966). And a “dangerous weapon” must be “dan-

gerous to life; one by the use of which a fatal wound may prob-

ably or possibly be given.” Dangerous Weapon, Black’s Law

Dictionary (5th ed. 1979); accord Dangerous Weapon (def. 1),

Ballentine’s Law Dictionary (3d ed. 1969) (“An instrument

which, when used in the ordinary manner contemplated by its

design and construction, will, or is likely to, cause death or

great bodily harm.”). So a dangerous weapon must, at a mini-

mum, be able to kill or gravely harm another person.

That clear definition should resolve this case. Yet my col-

leagues do not mention it until several pages into their discus-

sion. There, they admit “that definition of course fits.” Maj.

Op. 9. And later, they concede that mine is the “literal[ ]”

“read[ing].” Id. at 17. But they call the plain meaning “narrow”

and claim that “it is not the only meaning” of the term. Id. at 9,

17. So what does “dangerous weapon” mean? My colleagues

never quite say. Nor do they offer examples of ordinary English

usage that broaden “dangerous” to “apparently dangerous.”

Instead, they suggest that the phrase has a broader meaning

as a “legal term of art.” Id. at 10. But their evidence does not

support that bold claim. The post-1989 cases that they cite

2

reflexively deferred to the commentary. Id. at 6 n.4, 15–16 &

n.11. Those cases do not parse the phrase itself.

Plus, this legal-term-of-art argument falls flat. Surveying

state laws and cases from around the Guidelines’ enactment,

Judge Eric Murphy found that “dangerous weapon” lacked any

“well-established legal meaning that could cover pretending to

possess a dangerous weapon.” United States v. Tate, 999 F.3d

374, 391 (6th Cir. 2021) (Murphy, J., concurring in the judg-

ment). On the contrary, many state courts at the time rejected

my colleagues’ reading. State legislatures thus had to amend

their armed-robbery statutes to reach fake guns. Id. at 390–91.

The Sentencing Commission could have done the same but

chose not to. So there is no basis to stretch the text.

B. History shows that the Commission did not codify

McLaughlin

My colleagues claim that after the Supreme Court in

McLaughlin defined “dangerous weapon” to include some-

thing that just looked like a dangerous weapon, the Sentencing

Commission adopted that understanding. Maj. Op. 10–13 (cit-

ing McLaughlin v. United States, 476 U.S. 16, 17 (1986)). But

history shows just the opposite.

When the Commission first defined “dangerous weapon”

the year after McLaughlin, it gave the phrase its ordinary mean-

ing: “an instrument capable of inflicting death or serious bodily

injury.” U.S.S.G. § 1B1.1 cmt. n.1(d) (1987). As the Commis-

sion explained, this definition excluded toy guns. U.S. Sent’g

Comm’n Answers Questions Most Frequently Asked About the

Sent’g Guidelines, 1 Fed. Sent’g Rep. 423, 425–26 (1989)

3

(Question 36). So at first, the Commission rejected McLaugh-

lin’s definition.

Not until two years later did the Commission amend the

commentary: “Where an object that appeared to be a danger-

ous weapon was brandished, displayed, or possessed, treat the

object as a dangerous weapon.” U.S.S.G. § 1B1.1 cmt. n.1(d)

(1989) (emphases added).

The Commission claimed its comment was just “clar-

ify[ing] the definition of dangerous weapon.” U.S.S.G. app. C,

amend. 71 (1989). My colleagues take this claim at face value.

Maj. Op. 14. But calling a Guideline amendment a “clarifica-

tion” does not make it so. United States v. Menon, 24 F.3d 550,

567 (3d Cir. 1994) (rejecting a “clarifying amendment” that

punished a defendant “more harshly” than the original Guide-

line). Rather, we look to what the Commission did, not just to

what it said it did. United States v. Nasir, 17 F.4th 459, 472 (3d

Cir. 2021) (en banc) (Bibas, J., concurring).

By amending the commentary, the Commission impermis-

sibly expanded the Guidelines’ scope. See Tate, 999 F.3d at

388 (Murphy, J., concurring in the judgment). The original

comment followed the plain meaning. But this new comment

stretched the text to also reach objects that looked like danger-

ous weapons. In a later amendment, the Commission admitted

doing so. U.S.S.G. app. C, amend. 601 (Supp. 2000) (specify-

ing when “an object that is not an actual, dangerous weapon

should be treated as one” (emphases added)). And that is how

we understood this change when we recognized that the Guide-

lines commentary “equates the image of a ‘dangerous weapon’

with its reality.” United States v. Dixon, 982 F.2d 116, 121–24

4

(3d Cir. 1992) (grounding its holding in pre-Kisor deference).

In short, as even the Guidelines’ author admits, the commen-

tary sets forth a legal fiction, not a fair reading of the text.

C. Precedent confirms the text’s plain meaning

Without text or history on their side, my colleagues rest on

a single, inapt precedent—McLaughlin. McLaughlin read a

bank-robbery statute to encompass unloaded guns in part because

a gun is a weapon and in part because it is dangerous when

used as a bludgeon. 476 U.S. at 17–18. But unlike an empty

gun, a fake one can never fire bullets, so it is not “typically and

characteristically dangerous.” Id. at 17. And the government

never bore its burden to prove that Chandler’s replica was

heavy enough to club someone. Contra Maj. Op. 20 & n.16

(putting the burden to disprove the gun’s weight on the crimi-

nal defendant).

The majority seizes on McLaughlin’s other rationale: that

an unloaded gun is a “dangerous weapon” because guns pro-

voke fear and violence. 476 U.S. at 17–18. Yet McLaughlin

never tried to ground that claim in the text. Instead, it cobbled

together that functional meaning from the bank-robbery stat-

ute’s legislative history. Id. at 18 n.3. But this rationale shows

that McLaughlin did not lay down a sweeping rule, but just

construed a specific statute. After all, the specific legislative

history of an unrelated statute is irrelevant to these Guidelines’

meaning. It cannot universally justify stretching the meaning

of “dangerous weapon” to reach fake guns. Plus, legislative

history no longer carries the weight that it once did. And it can-

not muddy clear text. Milner v. Dep’t of Navy, 562 U.S. 562,

572 (2011). So I would cabin McLaughlin to the bank-robbery

5

statute and decline to extend its atextual approach to these

Guidelines.

The more instructive precedent deals with the enhance-

ment’s text before the 1989 commentary (upheld by bare pre-

Kisor deference) distorted it. Those cases confirm the text’s

plain meaning: As two of our sister circuits understood, the

enhancement “did not provide for an increase in the offense

level based upon the apparent possession of a dangerous

weapon.” United States v. Dzielinski, 914 F.2d 98, 102 (7th

Cir. 1990); accord United States v. Mahler, 891 F.2d 75, 76–

77 (4th Cir. 1989) (“[T]he Sentencing Commission did not

contemplate the use of a handgun replica in a robbery.”). Both

courts recognized that the proper response is not to stretch the

enhancement’s text, but to depart upward when warranted. See

id. (both sources). So the relevant precedent confirms the text’s

plain meaning, refutes my colleagues’ broad meaning, and dis-

pels their claim of ambiguity. The only ambiguity here comes

from the commentary and improper deference to it.

D. If there were any ambiguity, the rule of lenity would

trump Kisor deference

Even if the Guidelines were ambiguous, the key to the case

would be lenity, not deference. We get to Kisor’s second step

only when the regulation is ambiguous. But before deferring, we

must first “empty” the “legal toolkit.” Kisor, 139 S. Ct. at 2415.

As I have explained elsewhere, “[a] key tool in that judicial

toolkit is the rule of lenity.” Nasir, 17 F.4th at 474 (Bibas, J.,

concurring). And “[t]here is no compelling reason to defer to a

Guidelines comment that is harsher than the text.” Id. So when

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we read ambiguous Guidelines, the tie should go to liberty.

Here, though, the majority gives the tie to the agency.

Doubling down, my colleagues argue that applying the rule

of lenity here does not “make sense.” Maj. Op. 22. Yet they

understate lenity’s benefits and overstate its risks. “[T]he rule

of lenity serves our nation’s strong preference for liberty.”

Nasir, 17 F.4th at 473 (Bibas, J., concurring). And when used

to interpret ambiguous Guidelines, it checks over-punishment,

ensuring that “criminal punishment … represents the moral

condemnation of the community.” Id. at 474 (alteration in orig-

inal) (quoting United States v. Bass, 404 U.S. 336, 348 (1971)).

That benefit is no less present here than elsewhere.

My colleagues fear that lenity would make all “commen-

tary … superfluous.” Maj. Op. 22. Not so. The rule applies

only when the commentary “has a clear tilt toward harshness.”

Nasir, 17 F.4th at 474 (Bibas, J., concurring). So it never dis-

places neutral or defendant-friendly commentary.

They also worry that the rule of lenity “would seem to

trump the traditional tools of interpretation” and “render

[them] irrelevant.” Maj. Op. 21. That fear is baseless. The rule

allows for all other “traditional canons of statutory construc-

tion” to be applied first. Shular v. United States, 589 U.S. 154,

166 (2020) (Kavanaugh, J., concurring) (internal quotation

marks omitted). But deference to the Sentencing Commission

is not a traditional interpretative tool. Lenity is. So it must

come before deference.

The majority mistakenly finds the text ambiguous, then

chooses the harsher reading—the very thing barred by the rule

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of lenity. But our Court has long favored liberty over commen-

tary that “punish[es] the defendant more harshly than he would

have been” under our own “independent interpretation” of the

Guidelines. Menon, 24 F.3d at 567. If these Guidelines were

ambiguous, I would follow our preference for liberty and apply

lenity to foreclose the harsher reading.

II. THE DISTRICT COURT NEVER FOUND THAT CHAN-

DLER KIDNAPPED AND ROBBED THE MAILWOMAN

BECAUSE SHE WAS A GOVERNMENT EMPLOYEE

My colleagues also go astray on the other sentencing issue.

Though they read the government-employee enhancement cor-

rectly, they misapply it. As they note, it is not enough for a

defendant to know that the victim is a government employee.

That knowledge must also be part of the reason why the defend-

ant committed the crime or targeted the victim. Maj. Op. 26.

But the District Court said nothing about Chandler’s motive.

As my colleagues concede, “[t]he record with respect to the

District Court’s finding on Chandler’s motive is admittedly

scant.” Id. at 25–26. Even that is an overstatement—the court

made no such finding. All it said was that the “postal workers

… had their uniforms on and Mr. Chandler knew exactly what

he was doing.” Id. at 26 (alteration in original) (quoting JA 43–

44). That line suggests that it thought the enhancement requires

only knowledge, not motive. So it never found that the mail-

woman’s government employment motivated Chandler.

Rather than affirm this enhancement, we should remand for

resentencing. The District Court might well choose to canvass

the record evidence as my colleagues do, reading it as proof of

motive. Id. at 27. If it had done so, I would have voted to affirm

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this enhancement. But it did not, and we should not speak on

its behalf.

*****

Text is the touchstone of interpretation. Yet my colleagues

skirt the plain meaning of “dangerous weapon,” misread prec-

edent, find nonexistent ambiguity, and even then eschew len-

ity. And they justify the government-employee enhancement

by reading speech into the District Court’s silence. I respect-

fully dissent.

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