Petition for Writ of Certiorari — Tre Reshawn Tate, Petitioner v. United States
Supreme Court briefDec 13, 2021
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NO.
____________
IN THE UNITED STATES SUPREME COURT
______________________________________________________________________
TRE RESHAWN TATE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
______________________________________________________________________
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
______________________________________________________________________
Erin P. Rust
Assistant Federal Defender
FEDERAL DEFENDER SERVICES
OF EASTERN TENNESSEE, INC.
835 Georgia Avenue, Suite 600
Chattanooga, Tennessee 37402
(423) 756-4349
Attorney for Mr. Tre Tate
QUESTION PRESENTED FOR REVIEW
The United States Sentencing Guidelines (“USSG”) provides a three-point
enhancement under the robbery guideline, U.S.S.G. § 2B3.1, if an individual “possessed” a
“dangerous weapon” during the robbery. What constitutes a “dangerous weapon” is not
defined in the guideline itself, but is instead defined in the commentary thereto.
The question presented here is this:
Is the application note defining “dangerous weapon” overly broad under Kisor v.
Wilkie, 139 S. Ct. 2400 (2019) by defining “possession” of a “dangerous weapon” to include
merely pretending to possess one—by sticking one’s empty hand into one’s bag?
ii
PARTIES TO THE PROCEEDINGS
All parties appear in the caption of the case on the cover page.
RELATED CASES
There are no related cases.
All relevant opinions below are included in the Appendix filed herewith.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED FOR REVIEW ........................................................................... ii
PARTIES TO THE PROCEEDINGS ................................................................................... iii
RELATED CASES................................................................................................................ iii
TABLE OF CONTENTS .......................................................................................................iv
TABLE OF AUTHORITIES ................................................................................................... v
OPINIONS BELOW ............................................................................................................... 1
JURISDICTIONAL STATEMENT ........................................................................................ 2
PRAYER FOR RELIEF……………………………………………………………………...3
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .............................. 3
STATEMENT OF THE CASE AND FACTS ...................................................................... 4
REASONS FOR GRANTING OF THE WRIT .................................................................. 11
ARGUMENT…………………………………...…………………………….…………….12
I.
The guideline term “dangerous weapon” is limited to an object
capable of causing serious bodily injury, a meaning which cannot
be expanded by a guideline’s commentary to include a person
pretending his hand is a gun………………………………………………..12
II.
De novo review is appropriate here, but even if plain error review
applies, the guideline calculation error should be corrected…………….....18
CONCLUSION……………………………………………………………………………..21
iv
TABLE OF AUTHORITIES
Federal Court Cases:
Page
Auer v. Robbins, 519 U.S. 452 (1997)………………………………….…..………...…….13
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)…………..……………..……..13
Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984)………………………………………..……………...……….13
Henderson v. United States, 568 U.S. 266 (2013)…………………………...……………..20
Kisor v. Wilkie, 139 S. Ct. 2400 (2019)………………………………...…...…………passim
McLaughlin v. United States, 476 U.S. 16 (1986)……………………………………..passim
Molina-Martinez v. United States, 136 S. Ct. 1338 (2016)……….…………………..……19
Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018)………………….…..………19-20
Stinson v. United States, 508 U.S. 36 (1993)………………………………...………….….12
United States v. Baker, 559 F.3d 443 (6th Cir. 2009)………………………………...……20
United States v. Batista, 415 F. App'x 601 (6th Cir. 2011)………………….………….….20
United States v. Cabrera. 811 F.3d 801 (6th Cir. 2016)……………………………………19
United States v. Cavasoz, 950 F.3d 329 (6th Cir. 2020)……………………………..……..20
United States v. Fleming, 894 F.3d 764 (6th Cir. 2018)……………………..…………18-19
United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc)…………………….…12, 14
United States v. Hill, 963 F.3d 528 (2020)……………………………………………..16, 17
United States v. Johnson, 324 F.3d 264 (4th Cir. 1963)………………………….………….7
United States v. Loman, 551 F.2d 164 (7th Cir. 1977)…………………………………...…..7
United States v. Nasir, 982 F.3d 144 (3d Cir. 2020)……………………………......………20
United States v. Olano, 507 U.S. 725 (1993)………………………..…………….………..20
v
United States v. Prater, 766 F.3d 501 (6th Cir. 2014)…………………………...…..……..19
United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021)………….……….….…….11, 13, 20
United States v. Smith, No. 17-3368, 2019 WL 4594666
(6th Cir. Sept. 23, 2019)…………………………………………………....……20-21
United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018)……………………..……..12, 18
Statutes:
18 U.S.C. § 2113(a)…………………………………………..……………….………….2, 3
18 U.S.C. § 2113(d)…………………………………………..………..………….2, 3, 10, 14
28 U.S.C. § 1254(1)……………………………………………………………..…………..2
Rules:
Supreme Court Rule 13…...…………………..……………………………………..………2
Supreme Court Rule 29.4(a)………………………………………………..……………….2
Sentencing Guidelines:
U.S.S.G. § 1B1.1, cmt. (n.1(d)) (1987)…………………………………….………….4, 9, 14
U.S.S.G. § 1B1.1, cmt. (n.1(d)) (1989)…………………………………………………….15
U.S.S.G. § 1B1.1, cmt. (n.1(E))………………………………………...…………..4-5, 9, 15
U.S.S.G. § 1B1.1, cmt. (n.1(E)(ii)(II))………………………………………….....………...4
U.S.S.G. § 2B3.1………………………………………………..……...…………..ii, 4, 5, 11
U.S.S.G. § 2B3.1(b)(2)(E)…………………………………….……………..4, 5, 7, 8, 12, 14
U.S.S.G. § 2B3.1, cmt. (n.1)……………………………………………………...…………4
U.S.S.G. § 2B3.1, cmt. (n.2)………………………………...…………………..…….4, 5, 15
U.S.S.G. App. C Supp., amend. 110……………………………………………...…………9
vi
U.S.S.G. App. C, Vol I (Amend. 71)……………………………..…………..………….9, 15
U.S.S.G. App. C, Vol II (Amend. 601)……………………………………...…….5, 9, 15-16
Other Sources:
2 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law § 8.11(f) (1986)……….8
Black’s Law Dictionary (6th ed. 1990)………………………………………….………7, 17
Merriam-Webster, “dangerous” (available at
https://www.merriam-webster.com/dictionary/dangerous)........................................16
Merriam-Webster, “weapon” (available at
https://www.merriam-webster.com/dictionary/weapon........................................16-17
Merriam-Webster, “dangerous weapon” (available at
https://www.merriam-webster.com/legal/dangerous%20weapon..............................17
Random House Unabridged Dictionary (2d ed. 1993)………………………………………7
U.S.S.C. Answers Questions Most Frequently Asked About the Sentencing
Guidelines, 1 Fed. Sent. R. 423 (Apr. 1989)…………………………………………9
U.S.S.G. FY 2020 Sourcebook of Federal Sentencing Statistics,
Table 20 “Federal Offenders Sentenced Under Each Chapter
Two Guideline, Fiscal Year 2020”………………………………………...………..11
vii
OPINIONS BELOW
United States v. Tate, En Banc Denial, No. 20-5071, App. R. 49-1
(6th Cir. May 28, 2021)………………………………………………….Pet. Appx. 2
United States v. Tate, Opinion, No. 20-5071, App. R. 45-2
(6th Cir. May 28, 2021)……………………………………………..Pet. Appx. 3 - 30
United States v. Tate, Judgment, Case No. 3:19-cr-26, R. 28,
(E.D. Tenn. Jan. 7, 2020)………………………………………… Pet. Appx. 31 - 37
1
JURISDICTIONAL STATEMENT
Tre Tate pled guilty in federal court to one count of bank robbery, in violation 18
U.S.C. § 2113(a). He was sentenced by the District Court for the Eastern District of
Tennessee on January 7, 2020.
He appealed his sentence to the United States Court of
Appeals for the Sixth Circuit, which affirmed the sentence on May 28, 2021. Mr. Tate filed
a timely petition seeking en banc rehearing, which was denied on July 16, 2021.
This Court's jurisdiction is invoked under Title 28, United States Code, Section
1254(1).
Pursuant to Rule 13 of the Supreme Court, this Court’s March 19, 2020 COVID-
19 Order, and the Court’s July 19, 2021 COVID-19 Order, the time for filing a petition for
certiorari is 150 days from the order denying the petition for rehearing.
Accordingly, this
petition is timely filed.
Pursuant to Rule 29.4(a), appropriate service is made to the Solicitor General of the
United States and to Assistant United States Attorney Cynthia F. Davidson, who appeared
in the United States Court of Appeals for the Sixth Circuit on behalf of the United States
Attorney’s Office, a federal office which is authorized by law to appear before this Court on
its own behalf.
2
PRAYER FOR RELIEF
Petitioner, Tre Tate, respectfully prays that a writ of certiorari issue to review the
order of the United States Court of Appeals for the Sixth Circuit.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
18 U.S.C. § 2113(a):
Whoever, by force and violence, or by intimidation, takes, or attempts to take, from
the person or presence of another, or obtains or attempts to obtain by extortion any property
or money or any other thing of value belonging to, or in the care, custody, control,
management, or possession of, any bank, credit union, or any savings and loan association;
or
Whoever enters or attempts to enter any bank, credit union, or any savings and loan
association, or any building used in whole or in part as a bank, credit union, or as a savings
and loan association, with intent to commit in such bank, credit union, or in such savings
and loan association, or building, or part thereof, so used, any felony affecting such bank,
credit union, or such savings and loan association and in violation of any statute of the United
States, or any larceny-Shall be fined under this title or imprisoned not more than twenty years, or both.
18 U.S.C. § 2113(d):
Whoever, in committing, or in attempting to commit, any offense defined in
subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any
person by the use of a dangerous weapon or device, shall be fined under this title or
imprisoned not more than twenty-five years, or both.
3
STATEMENT OF THE CASE AND FACTS
Tre Tate pled guilty to one count of federal bank robbery and was sentenced under
U.S.S.G. § 2B3.1.
Even though he had no weapon with him, his guideline range was
enhanced under U.S.S.G. § 2B3.1(b)(2)(E) because the district court found that the act of
putting his hand inside his shoulder bag constituted “possess[ion]” of “a dangerous weapon.”
(Pet. Appx. at 4.) The district court reached this conclusion by relying upon the relevant
application notes, 1 which today define the term “dangerous weapon” as: “(i) an instrument
capable of inflicting death or serious bodily injury; or (ii) an object that is not an instrument
capable of inflicting death or serious bodily injury but (I) closely resembles such an
instrument; or (II) the defendant used the object in a manner 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)).
This expansive definition of “dangerous weapon” was not utilized by the
Commission when it first created the Sentencing Guidelines.
concurring) at 29.)
(Pet. Appx. (Murphy, J.,
“Dangerous weapon” was originally defined to include only “an
instrument capable of inflicting death or serious bodily injury.” U.S.S.G. § 1B1.1, cmt.
(n.1(d)) (1987). 2
The definition was later expanded—via commentary alone—to include
“objects that [are] not capable of inflicting death or serious bodily injury [but meet other
1
The application notes to the robbery guideline explain that “dangerous weapon” is
“defined in the commentary to 1B1.1 (Application Instructions).” U.S.S.G. § 2B3.1, cmt.
(n.1); see also (n.2) (incorporating by reprinting U.S.S.G. § 1B1.1, cmt. (n.1(E)(ii)(II)).
2
Today the definition of “dangerous weapon” is located at U.S.S.G. § 1B1.1, cmt. (n.1(E)).
4
requirements].” U.S.S.G. § 1B1.1, cmt. (n.1(E)); see also U.S.S.G. § 2B3.1, cmt. (n.2).
In the Reasons for Amendment accompanying the current iteration of this definition, the
Sentencing Commission explained that the definition was “amended to clarify under what
circumstances an object that is not an actual, dangerous weapon should be treated as one.”
U.S.S.G. App. C, Vol II (Amend. 601, Reasons for Amend. (2000)) (emphasis added).
Before the district court Mr. Tate objected to the three-point enhancement to his
guideline range under U.S.S.G. § 2B3.1(b)(2)(E), arguing that he “neither brandished nor
possessed a dangerous weapon in the course of the crime.”
(Pet. Appx. at 5; see also
Objection, R. 22, Page ID# 59-60.) “A firearm was never brandished or recovered.
There
are no indications of any actual firearm being involved in the case.” (Id. at Page ID# 60.)
His attorney further argued that the final subsection of the commentary’s definition of
“dangerous weapon” (applying to objects used in a manner that creates the impression that
the object was a dangerous weapon) did not apply because “[t]he teller’s account . . . is
absent of any description of gesturing, furtive movements, or a specific threat,” and that
“[p]lacing one’s hand in a bag does not rise to the level of an appearance of a gun.” (Id. at
Page ID# 61; see also TR Sent., r. 35, Page ID# 136.) Relying on this commentary, the
district court applied the enhancement. (Pet. Appx. at 5.)
On appeal, Mr. Tate argued that this expansive definition of “dangerous weapon”
was an unreasonable expansion of the guideline term via commentary, and as such was
impermissible under Kisor v. Wilkie, 139 S. Ct. 2400 (2019).
(See Pet. Appx at 5-6.) The
panel below issued a divided opinion as to the scope of the guideline phrase “possessed” a
“dangerous weapon” as used in the robbery guideline, U.S.S.G. § 2B3.1.
5
The majority,
applying de novo review, 3 looked to how the Supreme Court defined the term “dangerous
weapon” in a federal robbery statute a year prior to the Sentencing Commission’s
promulgation of the Guidelines.
476 U.S. 16, 17-18 (1986)).)
(Pet. Appx. 7-14 (discussing McLaughlin v. United States,
It also looked to case law that both preceded and post-dated
McLaughlin, explaining its belief that the term “dangerous weapon” as used in the robbery
guideline in fact incorporated the expansive view taken by some courts.
(Id. at 7-9.)
Thus, it held that, “the Guidelines themselves incorporate McLaughlin’s view of a
dangerous weapon.
As a result, the commentary Tate invokes ‘does not purport to add to
(or contradict) the text of the Guidelines,’ meaning ‘it poses no problem under [the Sixth
Circuit’s] precedent in Havis.’” (Id. at 11-12 (citation omitted).) “As such, the unambiguous
text of the Guidelines enhancement for dangerous weapons applies whether a robber is, or
merely pretends to be, armed.” (Id. at 10.) It concluded by emphasizing that its interpretation
of “dangerous weapon” was not based on the definition contained in the commentary, but
instead on the scope of the guideline text itself.
(Id. at 14.)
In contrast, Judge Murphy in his concurrence concluded that the guideline term
“dangerous weapon” has a limited meaning—which does not include individuals pretending
that their hand is a gun—and that the commentary is therefore an unlawful expansion of the
term.
(Pet. Appx. at 18 (Murphy, J., concurring).) He ultimately concurred in the result,
however, finding that plain error review applied and foreclosed relief in this case.
3
(Id.)
The majority explained that whether Tate’s argument “was unpreserved, and thus subject
to plain error review, is a fair point of debate.” (Pet. Appx. at 4 (citations omitted).) But,
it chose not to resolve that question, as it found that “Tate’s challenge fails even under . . .
de novo review.” (Id. (citation omitted).)
6
Judge Murphy explained that this case “turns on a straightforward question: Can the
phrase ‘possessed’ a ‘dangerous weapon’ in § 2B3.1(b)(2)(E) be reasonably read to cover a
robber who only pretends to have such a weapon by concealing his hand in a bag?”
(Id.
(citations omitted).) And, to answer this, he started by evaluating how an “ordinary English
speaker” would understand the terms.
(Id. at 21.) After looking to dictionary definitions
he concluded that, “[n]o ordinary English speaker—even one who has spent years reading
legal decisions—would say that a robber possesses a dangerous weapon when the robber
merely pretends to possess one.” (Id. at 18.) “It is even more unnatural to say that Tate
‘possessed’ his hand.”
(Id. at 23.)
He also considered the broader context of the guideline, and the state of law at the
time it was created, noting that “[w]hen the Commission first used the phrase, [under
prevailing case law], ordinary items regularly qualified as ‘dangerous weapons’ if the items
were ‘used in such a way as [was] likely to produce death or grievous bodily harm.’”
at 23 (citations omitted).)
(Id.
“It is perfectly natural to say that an aggressor used a chair or a
cane ‘as a weapon’ if the aggressor attacked or threatened someone with it.” (Id. (citing
United States v. Loman, 551 F.2d 164, 169 (7th Cir. 1977); United States v. Johnson, 324
F.3d 264, 266 (4th Cir. 1963)).
Thus, “the phrase need not be limited to things that we
typically call ‘weapons.’ ‘Weapon’ can reach ‘any’ object used or threatened to be used for
the purpose of inflicting bodily harm.”
(Pet. Appx. at 22-23 (Murphy, J., concurring)
(citing Random House Unabridged Dictionary, 2153 (2d ed. 1993); Black’s Law Dictionary,
394 (6th Ed. 1990))).
7
But, Judge Murphy explained, “[e]ven if we read ‘dangerous weapon’ in this broad
way, though, I still do not see how Tate ‘possessed’ a ‘dangerous weapon’ when he stuck
his hand into a bag to mislead a bank teller into thinking he had a gun.” (Id. at 23).
Thus,
while courts have long held that “a gun (loaded or unloaded) can certainly be described as a
‘dangerous weapon,’” (id. citing McLaughlin, 476 U.S. at 17–18; 2 Wayne R. LaFave &
Austin W. Scott, Substantive Criminal Law § 8.11(f) at 456 (1986)), here Tate did not have
a gun so that logic does not apply (see id.).
to ‘possess’ the gun [or weapon].”
And, “the guideline [at issue] “required Tate
(Id.) Judge Murphy then pondered, since Tate did not
possess a gun, “[w]hat, then, could qualify as Tate’s ‘weapon’ (even putting aside the word
‘dangerous’)?”
(Id.)
He explained that Tate’s hand alone could not qualify as a
“dangerous weapon” as most courts have refused to treat body parts as “dangerous
weapons.”
(Id.) This was “particularly true for this guideline, which prohibits a robber
from ‘possessing’ a dangerous weapon.” (Id. (citing U.S.S.G. § 2B3.1(b)(2)(E))).
The guideline phrase “possessed” a “dangerous weapon” was not ambiguous, and
even if some ambiguity existed, the commentary’s inclusion of merely pretending to possess
a gun by concealing one’s hand in one’s bag falls outside that zone of ambiguity.
(See id.
at 21-30.) This can be seen not only in how states defined the term by statute and in case
law, but also in how the Sentencing Commission itself would later modify this definition.
(Id. at 24-27, 29-30).
Judge Murphy emphasized that “even the Commission did not
believe that the guideline’s text could be read in the broad way that my colleagues interpret
it—at least not without an amendment.”
(Id. at 29.)
“The original definition of
‘dangerous weapon’ covered only ‘an instrument capable of inflicting death or serious bodily
8
injury’; it did not cover an object used to create the impression that one had such a weapon.”
(Id. (citing U.S.S.G. § 1B1.1 cmt. n.1(d) (1987).) Cases recognized this, as well as the
Sentencing Commission itself which “unofficially suggested that a ‘toy gun [did] not meet
the requirements of a . . .dangerous weapon’ and thus did not trigger the dangerous-weapon
enhancement.” (Id. (citing U.S.S.C. Answers Questions Most Frequently Asked About the
Sentencing Guidelines, 1 Fed. Sent. R. 423, 423, 425–26 (Apr. 1989) (Question 36).)
So, Judge Murphy explained, in 1989 the Sentencing Commission first expanded the
definition to include an object “that appeared to be a dangerous weapon,” and then later in
2000 expanded the definition further to its current form which includes “an object that is not
an instrument capable of inflicting death or serious bodily injury but . . . the defendant used
the object in a manner that created the impression that the object was such an instrument.”
U.S.S.G. § 1B1.1 cmt. n.1(E) (2000); (Pet. Appx. (Murphy, J., concurring) at 29-30);
U.S.S.G. App. C, amend. 71 (effective Nov. 1, 1989); U.S.S.G. App. C Supp., amend. 110
(effective Nov. 1, 1989) (applying to § 2B3.1). And, when making this final amendment,
“the Commission effectively acknowledged that the commentary defined dangerous weapon
to mean not a dangerous weapon: ‘The definition of ‘dangerous weapon’ in Application Note
1(d) of §1B1.1 also is amended to clarify under what circumstances an object that is not an
actual, dangerous weapon should be treated as one for purposes of guideline application.’”
(Pet. Appx. (Murphy, J. concurring) at 30 (citing U.S.S.G. App. C, Vol. II, amend. 601
(effective Nov. 1, 2000) (emphasis in Tate).)
At the same time, Judge Murphy explained that the majority’s reliance on
McLaughlin v. United States was misplaced, as that case addressed possession of an
9
unloaded gun, not pretending that one’s concealed hand was a weapon.
(Murphy, J. concurring) at 27.)
(Pet. Appx.
He explained that “[e]ven in the context of the bank-
robbery statute itself, courts have not read McLaughlin as broadly as the government needs
here.” (Id. at 28 (citing 18 U.S.C. § 2113(d).)
And, “[a]t day’s end, neither McLaughlin
nor any other precedent can justify the atextual conclusion that a concealed hand is a
‘dangerous weapon.’” (Id.) Thus, “[b]oth the plain meaning of ‘dangerous weapon’ and
the legal backdrop against which the Commission first used this phrase show that we should
take this commentary for what it is: an improper enlargement of the guideline’s scope.” (Id.
at 21.)
Because Judge Murphy’s view is more in line with Kisor v. Wilkie, and is faithful to
how the Sentencing Commission itself first defined “dangerous weapon” when it established
the Guidelines, Tate asks the Court to grant his petition for certiorari.
10
REASONS FOR GRANTING OF THE WRIT
This case presents an important question regarding the scope of the term “dangerous
weapon” as used in the United States Sentencing Guidelines’ robbery guideline.
This
question implicates Kisor v. Wilkie, 139 S. Ct. 2400 (2019) as well as the Sixth Circuit’s
holding in United States v. Riccardi, 989 F.3d 476, 479 (6th Cir. 2021), where the Courts
reemphasized the contours of an agency’s ability to define its own genuinely ambiguous
regulations.
In particular, the panel below issued a divided opinion centered around
whether the Guideline phrase “possessed” a “dangerous weapon” can “reasonably be read
to cover a robber who only pretends to have such a weapon by concealing his hand in a bag.”
(Pet. Appx. at 19 (Murphy, J., concurring); Pet. Appx. at 4.)
This issue is important because of the frequency with which the specific robbery
guideline at issue, U.S.S.G. § 2B3.1, is used.
In fiscal year 2020 alone, 1,297 people were
sentenced under § 2B3.1 as their primary guideline, with still others being sentenced under
it via a cross-reference.
U.S.S.G. FY 2020 Sourcebook of Federal Sentencing Statistics,
Table 20 “Federal Offenders Sentenced Under Each Chapter Two Guideline, Fiscal Year
2020.” Given the overstep here and the frequency with which this guideline is applied, this
is an important issue that warrants the attention of the Court.
This case presents a good vehicle to address this question, as both the majority and
the concurrence below engage in thorough analysis touching on the major points at issue.
It also presents the Court with the ability to address the Sixth Circuit’s overstep in deferring
to Sentencing Commission commentary that broadly expands the scope of a guideline term
in a frequently utilized guideline.
11
ARGUMENT
I.
The guideline term “dangerous weapon” is limited to an object capable of
causing serious bodily injury, a meaning which cannot be expanded by a
guideline’s commentary to include a person pretending his hand is a gun.
In United States v. Havis, the Sixth Circuit sitting en banc explained that the
commentary to the Guidelines cannot define the limits of a guideline term carte blanche.
927 F.3d at 386.
Instead, commentary, including application notes, are cabined by the
scope of the guideline itself. Id. (“[c]ommentary binds courts only ‘if the guideline which
the commentary interprets will bear the construction’” (quoting Stinson v. United States, 508
U.S. 36, 46 (1993))).
This limitation exists because “[u]nlike the Guidelines themselves . . . commentary
to the Guidelines never passes through the gauntlets of congressional review or notice and
comment.” Havis, 927 F.3d at 386.
Thus, if commentary adds to the guideline, instead
of merely interpreting it, “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 (citing United States v. Winstead, 890 F.3d 1082, 1092 (D.C. Cir.
2018)). An application note that expands the reach of a guideline beyond the scope of the
guideline term deserves no deference and is not binding. Havis, 927 F.3d at 387. Here, the
Sixth Circuit erred by upholding the district court’s reliance on an application note that went
far beyond interpreting the guideline term, but instead drastically expanded its scope.
Specifically, the Sixth Circuit erred by concluding that the meaning of “possessed” a
“dangerous weapon” as used in U.S.S.G. § 2B3.1(b)(2)(E) itself encompasses an individual
pretending his hand is a gun—even when no weapon is present.
12
However, pursuant to Havis, Kisor and Riccardi, both conclusions are erroneous.
In Kisor, a case that issued shortly after Havis, this Court explained that deference to an
agency’s interpretation of its own rules (often called Auer or Seminole Rock deference)
“retains an important role in construing agency regulations.” 139 S. Ct. at 2408 (citing
Auer v. Robbins, 519 U.S. 452 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410
(1945)). But, the Court explained, it was also “reinforce[ing the] limits,” of Auer deference,
as the doctrine “is potent in its place, but cabined in its scope.” Id.
And, in Riccardi, the
Sixth Circuit held that Kisor applies to the federal Sentencing Guidelines and its
commentary, requiring a fresh look at the impact of commentary.
989 F.3d at 485.
Before resorting to the commentary, three precursors must be met.
Ct. at 2415-16; Riccardi, 989 F.3d at 485-89.
Kisor, 139 S.
First, the regulation must be genuinely
ambiguous; second, the interpretation in the commentary must be a reasonable reading of
the guideline—it must address the zone of ambiguity the court identifies in the guideline
term, and (3) the Court must make an “independent inquiry into whether the character and
context of the agency interpretation entitles it to controlling weight.” Kisor, 139 S. Ct. at
2415-16.
“[B]efore concluding that a rule [i.e. guideline term] is genuinely ambiguous, a court
must exhaust all the ‘traditional tools’ of construction.” Id. (citing Chevron U. S. A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 843, n. 9 (1984)). “[I]f there is only
one reasonable construction of a regulation—then a court has no business deferring to any
other reading, no matter how much the agency insists it would make more sense.” Kisor,
139 S. Ct. at 2415.
In determining whether a term is genuinely ambiguous “a court cannot
13
wave the ambiguity flag just because it found the regulation impenetrable on first read.”
Kisor, 139 S. Ct. at 2415.
Instead “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.
Here, the term at issue, “dangerous weapon” is unambiguous, and limited to items
capable of inflicting death or serious bodily injury.
927 F.3d at 386.
See Kisor, 139 S. Ct. at 2415; Havis,
The Sixth Circuit erred by relying upon this Court’s McLaughlin cases,
which interpreted of the term “dangerous weapon” in a different, but related context, instead
of looking to how the Commission itself first explicitly defined “dangerous weapon.”
(Pet.
Appx. at 7; see id. (Murphy, J., concurring) at 27-28.)
In McLaughlin, decided just a year before the Sentencing Commission first
established the Guidelines, the Supreme Court interpreted the term “dangerous weapon” as
that term was used in 18 U.S.C. § 2113(d).
(Pet. Appx. at 7 (citing McLaughlin, 476 U.S.
at 17-18).) There the Court gave “dangerous weapon” an expansive meaning, by holding
that it encompassed the use of an unloaded gun during a robbery.
(Id.)
The Sixth Circuit
then presumed that because this Court decided McLaughlin just a year before the Sentencing
Commission established the Guidelines, the Sentencing Commission must have intended
“dangerous weapon” in U.S.S.G. § 2B3.1(b)(2)(E) to also have the same reach.
(Id.)
The problem with the panel majority’s reliance on McLaughlin is that the Sentencing
Commission specifically defined “dangerous weapon” narrowly, and without reference to
McLaughlin.
“Dangerous weapon” was originally defined to include only “an instrument
capable of inflicting death or serious bodily injury.” USSG § 1B1.1, cmt. (n.1(d)) (1987).
14
Thus, when first approving the Guidelines, Congress presumably understood the term
“dangerous weapon” in U.S.S.G. § 2B3.1(b)(2) to mean only objects capable of inflicting
death or serious bodily injury—not individuals who pretend their hand is a gun.
Since that time, the Commission has expanded “dangerous weapon” to include a
broader and broader range of items and conduct. But each of those expansions occurred
via commentary, and thus none were subjected to Congressional review.
U.S.S.G. App. C,
Vol I (Amend. 71 (1989)); 4 U.S.S.G. § 1B1.1, cmt. (n.1(E)); see also U.S.S.G. § 2B3.1,
cmt. (n.2).
And, because those expansions expanded, even contradicted, the original
meaning given the term by the Commission itself, those expansions cannot be read as
evidence that the Commission initially intended the term “dangerous weapon” to be more
expansive than the limited definition it actually used.
(See also Pet. Appx. (Murphy, J.,
concurring) at 27-28 (detailing how McLaughlin’s definition of “dangerous weapon” is still
narrower than that used in the commentary at issue here).)
To the contrary, when the Commission most recently redefined “dangerous weapon”
it explained it intended to expand the term to a broader range of conduct than it already
encompassed.
(Id.)
In 2000, the Commission explained that the definition was “amended
to clarify under what circumstances an object that is not an actual, dangerous weapon should
4
The definition of “dangerous weapon” had previously be redefined, via commentary, in a
way that expanded the term’s scope. In 1989, via Amendment 71, “dangerous weapon”
was defined as “an instrument capable of inflicting death or serious bodily injury,” and
“[w]here an object that appeared to be a dangerous weapon was brandished, displayed, or
possessed, treat the object as a dangerous weapon” was added. U.S.S.G. § 1B1.1, cmt.
(n.1(d)).
15
be treated as one . . . .”
added).
USSG App. C, Vol II (Amend. 601, Reasons for Amend.) (emphasis
But, by defining “dangerous weapon” (via commentary only) to include items that
are not “dangerous weapons,” the Commission overstepped its authority. In short, the Court
cannot assume that the Commission imported McLaughlin’s expansive definition of
“dangerous weapon” when it explicitly defined “dangerous weapon” as something far
narrower.
And, even if the Sentencing Commission did intent to import McLaughlin’s
definition (which was limited to an individual waiving around an unloaded firearm) that
definition itself did not go so far as to include an individual concealing his empty hand in a
bag.
(See Pet. Appx at 28 (Murphy, J., concurring) (explaining that “[e]ven in the context
of the bank-robbery statute itself, courts have not read McLaughlin as broadly as the
government needs here”).) The Commission told us what it intended “dangerous weapon”
to mean, and that did not include McLaughlin’s broader definition, and it certainly didn’t
reach people pretending their hands were guns.
The concurring judge instead has the better approach.
Judge Murphy, consistent
with Kisor and Riccardi, started with the ordinary meaning of the words used in the
guideline, looking to the dictionary definitions of the terms.
United States v. Hill, 963 F.3d 528, 532 (2020).
(Pet. Appx. at 21-22); see also
Per the Merriam-Webster dictionary,
“dangerous” means either “involving possible injury, pain, harm, or loss : characterized
by danger,” or “able or likely to inflict injury or harm.” 5
In turn, “weapon” means either
“something (such as a club, knife, or gun) used to injure, defeat, or destroy” or in a more
5
Available at https://www.merriam-webster.com/dictionary/dangerous (last visited Dec. 13,
2021).
16
figurative way “a means of contending against another” such as when a “[t]he pitcher’s slider
is his most dangerous weapon”. 6
When we combine these two words into the term
“dangerous weapon” the phrase means “an object that when used as an instrument of offense
is capable of causing serious bodily injury.” 7
Thus, the ordinary meaning of “dangerous
weapon” is an object capable of causing serious bodily injury.
The context within which the term “dangerous weapon” is used is also important to
determining its meaning. Kisor, 139 S. Ct. at 2415 (citation omitted); Hill, 963 F.3d at 533
(“we must examine the whole text and structure to decide how ‘a normal speaker of English’
would understand the words [“dangerous weapon”] in the ‘circumstances in which they were
used’” (citation omitted)). Here, as detailed by Judge Murphy, even when we look to the
generally understood legal use of “dangerous weapon” at the time the Guidelines were
promulgated, it was also limited to “any article which, in circumstances in which it is used,
attempted to be used, or threatened to be used, is readily capable of causing death or other
serious injury.” (Pet. Appx. at 20 (quoting Black’s Law Dictionary 1162 (6th ed. 1990).)
The traditional rules of construction permit only one reasonable meaning of
“dangerous weapon”—an object capable of causing serious bodily injury to another.
Given
that the guideline term is unambiguous, this Court need not resort to the application note at
all.
“If uncertainty does not exist, there is no plausible reason for deference. The regulation
6
Available at https://www.merriam-webster.com/dictionary/weapon (last visited Dec. 13,
2021).
7
Available at https://www.merriam-webster.com/legal/dangerous%20weapon (last visited
Dec. 13, 2021).
17
then just means what it means—and the court must give it effect, as the court would any
law.” Kisor, 139 S. Ct. at 2415.
But, even if “dangerous weapon” suffers from some ambiguity, the Sentencing
Commission’s attempt to drastically broaden the scope of the term via commentary is
unreasonable.
Kisor, 139 S. Ct. at 2415 (“[i]f genuine ambiguity remains, moreover, the
agency’s reading must still be ‘reasonable’” (citation omitted)).
The commentary
definition “must fall ‘within the bounds of reasonable interpretation’” of the guideline,
which is determined by “the zone of ambiguity the court has identified after employing all
its interpretive tools.”
Id. at 2416 (citation omitted).
Because “dangerous weapon” is
limited to instruments capable of causing serious injury, the Commission’s attempt to
expand that term to include individuals pretending their empty hand is a gun goes far beyond
any reasonable zone of ambiguity.
If the Commission wishes to expand the term “dangerous weapon” to include an item
that is “not an actual, dangerous weapon,” it must seek to amend the language of the
guideline itself by submitting the change for congressional review.
Winstead, 890 F.3d at 1092).
927 F.3d at 387 (citing
The Court should grant the petition for certiorari to address
this overstep of the Sentencing Commission and the Sixth Circuit.
II.
De novo review is appropriate here, but even if plain error review applies, the
guideline calculation error should be corrected.
Tate sufficiently preserved his argument that he should not receive the guideline
enhancement for “possessing” a “dangerous weapon,” even if his specific reasons asserted
below were not precisely what he asserts on appeal. (Pet. Appx. at 6 (explaining that
“[w]hether that distinction means Tate’s argument today was unpreserved, and thus subject
18
to plain error review is a fair point of debate” (citing United States v. Fleming, 894 F.3d 764,
771 (6th Cir. 2018)).)
Indeed, as the Sixth Circuit’s decision in United States v. Prater,
766 F.3d 501 (6th Cir. 2014), makes clear, Tate’s clear objection to the enhancement was
sufficient to preserve his claim, such that de novo review is applies.
Id. at 506-07
(concluding that, “albeit barely,” the first paragraph of Prater’s objection which asserted
only the general argument that he did not qualify for the Armed Career Criminal Act
enhancement was sufficient to preserve his specific argument asserted only on appeal as to
why his third-degree burglary convictions should not subject him to the ACCA).
At the
same time, Mr. Tate is distinct from the defendant in United States v. Cabrera. 811 F.3d 801
(6th Cir. 2016), where plain error review applied because no objection to his sentence was
raised before the district court at all. Id. at 808. Prater, not Cabrera, applies here.
Finally, even if the Court were to conclude that plain error review applies, it should
still correct the error. This Court “repeatedly has reversed judgments for plain error on the
basis of inadvertent or unintentional errors of the court or the parties below.” RosalesMireles v. United States, 138 S. Ct. 1897, 1906 (2018) (acknowledging that federal
sentencing often entails overlooked mistakes, which none-the-less should be addressed on
appeal).
And, a guideline calculation error is just the sort of error that meets the plain error
standard in the ordinary case. Molina-Martinez v. United States, 136 S. Ct. 1338, 1349
(2016) (a guideline calculation error effects an individual’s substantial rights because there
is “a reasonable probability that the district court would have imposed a different sentence
under the correct range”); Rosales-Mireles, 138 S. Ct. at 1907-08 (the risk that an individual
will serve a sentence longer than necessary due to a guideline calculation error is an
19
“unnecessary deprivation of liberty [that] particularly undermines the fairness, integrity or
public reputation of judicial proceedings”).
The only potential question here is whether the error is plain, and it is. “It is wellestablished in [the Sixth Circuit] that a district court's failure to use a properly-calculated
Guidelines range constitutes plain-error.” United States v. Batista, 415 F. App'x 601, 607
(6th Cir. 2011) (citing United States v. Baker, 559 F.3d 443, 454 (6th Cir. 2009) (additional
citations omitted). The district court’s reliance on commentary that expanded the meaning
of the phrase “possessed” a “dangerous weapon” is obvious under the rationales utilized in
Havis and Kisor.
And that is sufficient to find the error is plain.
United States v. Olano,
507 U.S. 725, 734 (1993); see United States v. Cavasoz, 950 F.3d 329, 337 n.3 (6th Cir.
2020) (“[B]inding case law need not address the same statute for the district court’s
interpretation of that statute to be plain error . . . [r]ather, binding case law must clearly
answer the question presented.”).
Here, Havis and Kisor made clear that courts “should not reflexively defer to an
agency’s interpretation” of its regulations, [and that] courts must also awaken “‘from [their]
slumber of reflexive deference’ to the [guidelines] commentary.” Riccardi, 989 F.3d at 485
(citing United States v. Nasir, 982 F.3d 144, 158, 177 (3d Cir. 2020) (Bibas, J., concurring
in part) (concluding that pre-Kisor cases upholding certain guideline commentary no longer
control because Kisor “cut back on what had been understood to be uncritical and broad
deference to agency interpretations of regulations”)).
Moreover, whether an error is plain
is measured by the state of the law at the time of appeal. See Henderson v. United States,
568 U.S. 266, 279 (2013); United States v. Smith, No. 17-3368, 2019 WL 4594666, at *3
(6th Cir. Sept. 23, 2019) (finding erroneous application of the career offender enhancement
20
became plain only while case was on appeal, and remanding because the career offender
guidelines were substantially higher than his correct range).
Even if the Court were to conclude that Mr. Tate did not preserve his challenge to
the guideline enhancement, the Court should still conclude that plain error occurred and that
remand for resentencing in required.
CONCLUSION
In consideration of the foregoing, Tre Reshawn Tate submits that the petition for
certiorari should be granted, the order of the Sixth Circuit Court of Appeals vacated, and the
case remanded for resentencing.
Respectfully submitted,
FEDERAL DEFENDER SERVICES
OF EASTERN TENNESSEE, INC.
By:_ /s/ Erin Rust
Erin P. Rust
Assistant Federal Community Defender
835 Georgia Avenue, Suite 600
Chattanooga, Tennessee 37402
(423) 756-4349
21
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.