Petition for Writ of Certiorari — Anderson Curtel Duke, Petitioner v. United States

Supreme Court briefFeb 7, 2022

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No. __________

In the Supreme Court of the United

States

-------------------------- ♦ --------------------------Anderson Duke,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

-------------------------- ♦ -------------------------ON PETITION FOR A WRIT OF

CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

-------------------------- ♦ -------------------------PETITION FOR WRIT OF CERTIORARI

-------------------------- ♦ -------------------------Michael L. DuBos

Counsel of Record

CJA-Appointed

BREITHAUPT, DUBOS

& WOLLESON, LLC

1811 Tower Dr.

Monroe, LA 71201

(318) 322-1202

(318) 322-1984

michael@bdw.law

February 4, 2022

Counsel for Petitioner

QUESTIONS PRESENTED

In Stinson v. United States, 508 U.S. 36 (1993), this Court found the Sentencing

Guidelines to be “the equivalent of legislative rules adopted by federal agencies.” Id. at

45. Thus, this Court applied the Seminole Rock doctrine, which provides that an

agency’s interpretation of its own regulations is to be given “controlling weight unless

it is plainly erroneous or inconsistent with the regulation.” Id. at 47 (citation omitted).

In Kisor v. Wilkie, 139 S Ct. 2400 (2019), this Court recognized the dangers posed by

reflexive judicial deference to an agency’s interpretation of its own regulations and ruled

that such deference should only be afforded if the underlying regulation is determined

to be “genuinely ambiguous,” and that a court must first “exhaust all the ‘traditional

tools of construction’” in analyzing the regulation in question. Id. at 2408 and 2415.

The circuits are openly split as to when Stinson deference is appropriate, and/or

how Kisor limits Stinson with respect to the Sentencing Guidelines’ commentary and

how it is to be interpreted and applied, if at all. The Third, Sixth, and D.C. circuits have

all applied Kisor, and held that courts owe no deference to Guidelines commentary when

the underlying Guidelines text is not ambiguous. At least five other circuits disagree.

Thus, Mr. Duke presents the following questions:

1. Should courts defer to Sentencing Guidelines commentary when there is no

ambiguity in the underlying text?

2. Has the Commission impermissibly expanded the definition of “controlled

substance offense” through the commentary by including “attempt” crimes when those

crimes are absent from the Guidelines definition found in § 4B1.2(b)?

PARTIES TO THE PROCEEDING BELOW

All parties are listed on the cover page:

Petitioner is Anderson Duke, defendant in the district court and appellant in the

court of appeals.

Respondent is the United States of America, plaintiff-appellee in the court of

appeals.

RELATED PROCEEDINGS

Proceedings directly related to this case are as follows:

•

United States v. Duke, No. 3:18-cr-00343-01DEW-KLH, U.S. District Court for the

Western District of Louisiana. Judgment

and sentence entered on August 3, 2020.

•

United States v. Duke, No. 20-30489, U.S.

Court of Appeals for the Fifth Circuit. Panel

decision issued September 14, 2021. Petition

for rehearing en banc denied on November

12, 2021.

TABLE OF CONTENTS

Question Presented......................................................................................................... i

Parties to the Proceeding Below ...................................................................................ii

Related Proceedings.......................................................................................................ii

Table of Contents .......................................................................................................... iii

Table of Authorities ....................................................................................................... v

Petition for Writ of Certiorari .......................................................................................1

Opinions Below ..............................................................................................................1

Jurisdiction ....................................................................................................................1

Sentencing Guidelines Provisions Involved..................................................................1

Introduction ...................................................................................................................2

Statement of the Case ...................................................................................................4

Legal Background ........................................................................................4

A. Proceedings Below ....................................................................................8

Reasons for Granting the Petition .............................................................................. 11

There Is A Deeply Entrenched Circuit Split Regarding How/If

Kisor Limits Stinson Resulting In Nationwide Disparities

In Sentencing ............................................................................................ 11

A. The Third, Sixth, and D.C. Circuits

Have Properly Refused To Defer To Guidelines

Commentary ....................................................................................... 11

B. Despite Kisor, At Least Five Other Circuits

Continue To Apply Stinson Deference ................................................ 13

II.

The Decision Below Conflicts With Kisor ................................................ 16

iii

A. The Fifth Circuit’s Reflexive Deference To

Guidelines Commentary Conflicts With This

Court’s Precedent ................................................................................ 16

B. Application Note 1 to §4B1.2 Is Invalid.............................................. 18

III. Reflexive Judicial Deference To Guidelines

Commentary Erodes The Separation Of Powers

And Due Process ....................................................................................... 20

IV. This Case Presents An Ideal Vehicle ....................................................... 23

A. This Issue Occurs Frequently Across The Country ........................... 23

CONCLUSION............................................................................................................. 24

APPENDIX A: Court of appeals order denying rehearing en banc

(November 12, 2021) ......................................................................... 1a

APPENDIX B: Court of appeals opinion

(September 14, 2021) ........................................................................ 2a

APPENDIX C: District Court Judgment

(August 3, 2020) ................................................................................ 6a

APPENDIX D: 2021 U.S.S.G. Provisions........................................ ....................... 12a

APPENDIX E: Amendment 528 to the U.S.S.G. .................................................... 22a

APPENDIX F: U.S. Code Provisions....................................................................... 24a

TABLE OF AUTHORITIES

Cases

Page

Abramski v. United States,

573 U.S. 169 (2014) ....................................................................................................... 22

Auer v. Robbins,

519 U.S. 452 (1997) ............................................................................................... passim

Bowles v. Seminole Rock & Sand Co., 14

325 U.S. 410 (1945) ............................................................................................... passim

Chevron U.S.A. v. Nat. Res. Def. Council, Inc.,

467, U.S. 837 (1984). ....................................................................................................... 8

Free Enter. Fund v. Public Co. Accounting Oversight Bd.,

561 U.S. 477 (2010) ....................................................................................................... 21

Guedes v. Bureau of Alcohol, Tobacco, Fire- arms & Explosives,

140 S. Ct. 789, 790 (2020) ............................................................................................. 22

Johnson v. BOKF Nat'l Ass'n,

15 F.4th 356, (5th Cir. 2021) ........................................................................................ 17

Kisor v. Wilkie,

139 S Ct. 2400 (2019) ............................................................................................ passim

Marbury v. Madison,

5 U.S. 137 (1803). .......................................................................................................... 20

McBoyle v. United States,

283 U.S. 25 (1931). ........................................................................................................ 22

Mistretta v. United States,

488 U.S. 361 (1989) .........................................................................................................21

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ......................................................................................................... 21

Peugh v. U.S.,

569 U.S. 530 (2013) ......................................................................................................... 2

Stinson v. United States,

508 U.S. 36 (1993) ................................................................................................. passim

U.S. v. Bellazerius,

24 F.3d 698 (5th Cir. 1994) ............................................................................................. 7

United States v. Bass,

404 U.S. 336 (1971). ...................................................................................................... 21

United States v. Broadway,

815 Fed Appx. 95 (8th Cir. 2020) ................................................................................. 14

United States v. Crum,

934 F.3d 963 (9th Cir. 2019) ......................................................................................... 14

United States v. Cruz-Flores,

799 F. Appx. 245 (5th Cir. 2020) .................................................................................. 17

United States v. Davis,

139 U.S. 2319, 2323 (2019) ........................................................................................... 22

Cases cont'd

Page

United States v. Goodin,

835 F. Appx. 771, 782 (5th Cir. 2021) ..................................................................... 16,18

United States v. Havis,

927 F.3d 382 (2019).................................................................................................. 12,19

United States v. Hightower,

25 F.3d 182 (3d Cir. 1994) ............................................................................................ 13

United States v. Lewis,

963 F.3d 16, 24 (1st Cir. 2020) ................................................................................ 14,15

United States v. Lightbourn,

115 F.3d 291 (5th Cir. 1997) ................................................................................. passim

United States v. Nasir,

17 F.4th 459 (3d Cir. 2021) ...................................................................................... 13,16

United States v. Richardson,

958 F.3d 151 (2d Cir. 2020) .......................................................................................... 14

United States v. Smith,

989 F.3d 575, 584 (7th Cir.), cert. denied, 142 S. Ct. 488 (2021)................................ 15

United States v. Tabb,

949 F.3d 81, (2d Cir. 2020) ........................................................................................... 13

United States v. Vivar-Lopez,

788 F. App'x 300, 301 (5th Cir. 2019) .......................................................................... 17

United States v. Wilkerson,

361 F.3d 717, 732 (2d. Cir. 2004) ................................................................................. 14

United States v. Winstead,

890 F.3d 1082 (D.C. Cir. 2018) ........................................................................... 11,12,19

Statutes and Regulations

5 U.S.C.

§ 553 ............................................................................................................................. 4,18

28 U.S.C.

§ 991(a) ............................................................................................................................. 4

§ 991(b)(1) ......................................................................................................................... 4

§ 994(h) .......................................................................................................................... 5,7

§ 994(p) ............................................................................................................................. 4

§ 994(a) – (f) ...................................................................................................................... 6

§ 994(x) ............................................................................................................................. 4

U.S. Sentencing Guidelines (2021)

§ 4B1.1 .................................................................................................................... passim

§ 4B1.2(b)................................................................................................................ passim

§ 2A2.1 ............................................................................................................................ 20

§ 2D1.1 ............................................................................................................................ 20

Statutes and Regulations Cont'd

Pages

§ 2K1.3 ............................................................................................................................ 20

§ 2X1.1 ............................................................................................................................ 20

Amendment 528..................................................................................................... 5-7,18-19

Other Authorities

U.S. Sentencing Commission,

Fiscal Year 2020 Overview of Federal Criminal Cases,

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/researchpublications/2021/FY20_Overview_Federal_Criminal_Cases.pdf ............................. 23

vii

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (App. 2a-5a) is unpublished but can be found

in 858 Fed.Appx. 770 (Mem). The sentencing order of the district court (App. 6a-12a) is

unreported.

JURISDICTION

The court of appeals entered judgment on September 14, 2021. App.1a. The

petition for rehearing en banc was denied on November 12, 2021. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

SENTENCING GUIDELINES PROVISIONS INVOLVED

Section 4B1.2 of the 2021 U.S. Sentencing Guidelines provides:

(b) The term “controlled substance offense” means an offense under

federal or state law, punishable by imprisonment for a term exceeding

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

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

possession of a controlled substance (or a counterfeit substance) with intent

to manufacture, import, export, distribute, or dispense.

Application Note 1 to § 4B1.2 provides:

1. Definitions.—For purposes of this guideline—

“Crime of violence” and “controlled substance offense” include the

offenses of aiding and abetting, conspiring, and attempting to commit such

offenses.

Additional provisions of the U.S. Code and the 2021 U.S. Sentencing

Guidelines are reproduced in Appendix D.

INTRODUCTION

Anderson Duke was classified as a career offender pursuant to U.S.S.G. §

4B1.1(a) based in part on a previous state conviction for attempted distribution of

marijuana. While §4B1.2 does not include inchoate or attempt offenses, Application

Note 1 to §4B1.2 modifies the definition of “controlled substance offense” to include

attempt crimes. Because of this, Mr. Duke was classified as a career offender, and he

received a Guidelines sentence range of 262 to 327 months and received a sentence of

288 months. Had Anderson Duke been sentenced for his crimes in Washington D.C.,

Ohio, or South Carolina, he would have faced a guideline range as low as 188 to 235

months.

Because Mr. Duke was sentenced in the Fifth Circuit, which

unconstitutionally applies “Stinson deference” and defers to the Sentencing

Commission’s interpretation of its own Guidelines, he instead received a significantly

greater sentence. By adhering to Stinson deference, the Fifth Circuit and others have

failed to apply the limitations this Court placed upon such judicial deference in Kisor.

As a result, these circuits have allowed the Sentencing Commission to unlawfully

expand the Guidelines text and have abdicated their duty as an independent check on

the Commission’s limited authority.

In doing so, these circuits have defeated one of the fundamental purposes of the

Sentencing Commission, which was formed by Congress to establish Sentencing

Guidelines as well as commentary regarding the applicability of the Guidelines. The

purpose of this sentencing scheme, as this Court has stated before, is to achieve

uniformity in federal sentencing decisions across the country. Peugh v. U.S., 569 U.S.

530, 531, 133 S. Ct. 2072, 2076, 186 L. Ed. 2d 84 (2013). The disparity in sentencing

among the various circuits due to their conflicting interpretations of §4B1.2(b) and its

commentary at issue defeat that purpose.

Three circuits have properly held that Stinson deference is warranted only when

an underlying text has been determined to be ambiguous after a court has exhausted

all the usual tools of construction to determine in its analysis. These circuits properly

afford no deference to the Commission’s commentary to §4B1.2, as there is no ambiguity

in the underlying text to justify deference.

The current circuit split is deeply entrenched. Tens of thousands of Americans

are sentenced every year, and those who, by happenstance, are sentenced in certain

geographic areas stand to face significantly harsher prison terms than they would have

faced if their crimes were committed in another circuit. Like Mr. Duke, many of these

individuals surrender significant portions of their life, while similarly situated

defendants in other jurisdictions benefit from their circuit’s rightful rejection of the

Stinson doctrine when interpreting and applying the Sentencing Guidelines

commentary.

It is unconscionable that significantly different prison sentences are being

imposed upon tens of thousands of people simply based solely on geographic locations.

Moreover, continued reflexive judicial deference to the Guidelines’ commentary is

unjustified when there is no ambiguity in the underlying Guidelines text, or when the

court has not exhausted all the tools of textual construction in its analysis of the text.

Consequently, this Court must act.

STATEMENT OF THE CASE

Legal Background

1. In Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), this Court

formalized the doctrine of judicial deference to an agency’s interpretation of its own

regulation, unless that interpretation “is plainly erroneous or inconsistent with the

regulation.”

Id at 414.

This deferential doctrine later became known as “Auer

deference” following Auer v. Robbins, 519 U.S. 452 (1997), when this Court affirmed the

practice of judicial deference to an agency’s interpretations of its own regulations.

2. The Sentencing Commission is an independent, federal agency of the Judicial

branch. Created by Congress via the Sentencing Reform Act in response to widespread

disparity in federal sentencing, the Sentencing Commission has a mandate to “establish

sentencing policies and practices for the Federal criminal justice system.” 28 U.S.C.

991(a), (b)(1). To that end, the Commission promulgates Sentencing Guidelines as well

as “general policy statements regarding application of the guidelines or any other aspect

of sentencing or sentence implementation.” Id.

Any amendments made by the Commission are strictly controlled by the

Administrative Procedures Act, which, just as it does for federal administrative

agencies, requires that notice of a proposed amendment be published in the Federal

amendments must be submitted to Congress, which has six months to review the

proposed amendment before it takes effect. 28 U.S.C. § 994(p) and (x); 5 U.S.C. § 553.

3. In 1987, the Commission promulgated the Career Offender Guideline.

U.S.S.G. § 4B1.1. An individual is deemed to be a “career offender” when he or she has

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

substance offense.

Id.

Career offenders are subjected to significantly increased

sentences.

In defining “controlled substance offense,” § 4B1.2(b) is modeled after 28 U.S.C.

§ 994(h) and defines “controlled substance offense” as a felony offense “that prohibits

the manufacture, import, export, distribution, or dispensing of a controlled substance

(or a counterfeit substance) or the possession of a controlled substance (or a counterfeit

substance) with intent to manufacture, import, export, distribute, or dispense.”

U.S.S.G. § 4B1.2(b). Just as with 28 U.S.C. § 994(h), this Guideline does not include

inchoate offenses, such as attempts to distribute a controlled substance.

Application Note 1 to §4B1.2(b) significantly expands the definition of “controlled

substance offense” to “include the offenses of aiding and abetting, conspiring, and

attempting to commit such offenses.”

Passed in 1995, Amendment 528 of the Sentencing Guidelines amends

Commentary to §4B1.1 in 1995 to “inser[t] additional background commentary in

§4B1.1 (Career Offender).” Amendment 528 to U.S.S.G. §4B1.1. While Amendment

528 served to expand the basis of the Commission’s purported authority for broadening

the definition of “controlled substance offense,” it does not contend that §4B1.2(b) is

ambiguous, or that the definitions added via the commentary are interpretative or

explanatory. Rather, Amendment 528 unequivocally states that it has expanded the

definition of “career offender” found in the Guidelines text, particularly §4B1.2(b), when

it notes that “the Commission has modified this definition in several respects . . ..”

(Emphasis added.) See U.S.S.G. 4B1.1, Background. See also Amendment 528 to

U.S.S.G. §4B1.1.

Amendment 528 also repromulgated Application Note 1 of the

Commentary to §4B1.2 without change. Application Note 1 of the Commentary to

§4B1.2 contains the definition which expanded or “modified” the definitions of “crime of

violence” and “controlled substance offense.”

4. In Stinson v. U.S., 508 U.S. 36 (1993), this Court applied Seminole Rock/Auer

deference to determine the weight that should be afforded to the commentary in the

Sentencing Guidelines Manual.

This Court found that “the guidelines are the

equivalent of legislative rules adopted by federal agencies” because both bodies, the

Commission and federal administrative agencies, exercise authority expressly

delegated to them by Congress.

Consequently, this Court determined that the

Commission’s commentary on its own Guidelines “is akin to an agency’s interpretation

of its own legislative rules.” Id. at 45. Thus, by applying similar reasoning to that which

it utilized in Seminole Rock and Auer, this Court gave rise to “Stinson deference,” ruling

that “commentary in the Guidelines Manual that interprets or explains a guideline is

authoritative unless it violates the Constitution or a federal statute, or is inconsistent

with, or a plainly erroneous reading of, that guideline.” Id at 38.

Notably, this Court also delineated the roles of the Commission’s commentary,

which may: interpret or explain how a guideline is to be applied; suggest circumstances

where a departure from the guideline may be warranted; and provide background

information, such as factors considered when the guideline was promulgated or the

impetus for the guideline. Id at 41 (citing U.S.S.G. §1B1.7.).

5. The U.S. Fifth Circuit relied upon commentary to U.S.S.G. §4B1.1 in United

States v. Lightbourn, 115 F.3d 291 (1997) and held that Application Note 1’s inclusion

of inchoate offenses for career offender classification is authoritative. Although drug

conspiracies were not initially listed as crimes which triggered career offender status,

the Fifth Circuit held that the definition of “controlled substance offense” was not

limited to offenses enumerated in § 4B1.2(b) and, via commentary, the Commission

could include offenses other than those enumerated in the Guidelines text. Id. at 293.

The Fifth Circuit readily acknowledged that the Commission had previously

acted beyond its scope of authority granted by 28 U.S.C. § 994(h) when it included drug

conspiracies in the offenses that trigger career offender status. Id. at 293 (citing U.S.

v. Bellazerius, 24 F.3d 698, 700-02 (5th Cir. 1994)). However, because the Commission

passed Amendment 528 after Bellazerius and cited to its “general guideline

promulgation authority” as set forth in 28 U.S.C. §994(a) – (f) rather than solely the

authority granted by 28 U.S.C. § 994(h), the Fifth Circuit reasoned that Application

Note 1 to §4B1.2 is authoritative. Id.

In United States v. Kendrick, 980 F.3d 432 (2020), the Fifth Circuit reaffirmed

Lightbourn and held that “The Guidelines’ commentary explains that a ‘controlled

substance offense include[s] the offenses of aiding and abetting, conspiring, and

attempting to commit such offenses.’” Id. at 444 (quoting Application Note 1 to §4B1.2)

(emphasis added by the court).

Notably, however, the Fifth Circuit’s decisions in Lightbourn and Kendrick make

no mention of Stinson, nor does the court conduct any analysis of the underlying

Guidelines text.

Instead, the Fifth Circuit has adopted a reflexive deference to

Guidelines commentary, a decision that is at odds with this Court’s ruling in Kisor.

6. In Kisor v. Wilkie, 139 S. Ct. 2400 (2019), this Court stressed that the Auer

doctrine had its limits. Specifically, this Court explained that a reflexive application of

Seminole Rock/Auer deference, that is, an almost automatic deferral to an agency’s

interpretation without first analyzing the text of the underlying regulation, is

inappropriate. Id. at 2414-2415. Rather, Auer deference should be afforded “only when

the language of the regulation is ambiguous.” Id. at 2415 (citing Christensen, 529 U.S.

at 588) (Emphasis added). Moreover, courts must exhaust all the ‘traditional tools’ of

construction” when analyzing an underlying regulation. Id. (quoting Chevron U.S.A. v.

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

This Court recognized the danger posed by reflexive deference to an agency’s

interpretation of its own regulations, as permitting an agency to freely interpret its own

regulations “would be to permit the agency, under the guise of interpreting a regulation,

to create de facto a new regulation.” Christensen, 529, U.S. at 588.

A. Proceedings Below

1. Petitioner, Anderson Duke, was convicted following a jury trial on three (3)

counts of possessing with the intent to distribute Schedule I and II controlled

substances.

2. Following his conviction, the Presentence Investigation Report classified Mr.

Duke as a “career offender” pursuant to U.S.S.G. § 4B1.1(a) based on prior state

convictions of Attempted Distribution of Marijuana (2006) and Distribution of

Oxycontin (2008).

This increased Mr. Duke’s offense level and Criminal History

Category to 34 and VI, respectively. This resulted in a Guideline range of 262-327

months, with Mr. Duke receiving a sentence of 288 months. Had Mr. Duke not been

designated as a “career offender,” he would have had an offense level and Criminal

History Category of 32 and V, respectively, resulting in a Guideline range of 188-235

months.

Mr. Duke objected to the inclusion of his conviction for Attempted Distribution

of Marijuana as a “controlled substance offense” and his ultimate classification as a

“career” offender, arguing, as relevant here, that the text of U.S.S.G. § 4B1.2(b) does not

include the attempt to commit the enumerated offenses in its definition of a “controlled

substance offence.” While the attempt to commit the offenses enumerated in U.S.S.G. §

4B1.2(b) is included in the Application Notes and Definitions, this commentary does not

interpret or explain the text of §4B1.2(b) and instead conflicts with the plain language

of the provision’s text by adding an entire category of crimes not included in the actual

Guidelines itself.

The district court overruled Mr. Duke’s objection and, using the Attempted

Distribution of Marijuana conviction, classified Mr. Duke as a career offender.

3. The Fifth Circuit affirmed Mr. Duke’s sentence, relying upon on its decisions

in Lightbourn and Kendricks as precedent to defer to Guidelines commentary as

authoritative.

In its opposition, to Petitioner’s appeal, the government relied on the court’s

decision in United States v. Miro, 29 F.3d 194, 198 (5th Cir. 1994), which, in turn, cites

to Stinson and states, “We are bound by the commentary when it interprets or explains

a guideline unless it violates the Constitution or a federal statute, or is inconsistent

with or a plainly erroneous reading of that guideline.” Id.

The government also asserted that Lightbourn controlled the appellate court’s

decision, and that none of the exceptions provided for in Stinson were present to justify

not deferring to the Commission’s commentary. U.S.S.G. § 4B1.2(b), the government

argued, is sweeping in its scope, such that various activities associated with controlled

substances are included in the definition of “controlled substance offense” despite not

being listed by the Guideline itself.

4. Petitioner moved for leave to file a petition for rehearing en banc out of time,

which was granted. As he had before the Fifth Circuit’s panel, Petitioner argued that

Application Note 1 conflicts with the plain text of § 4B1.2(b) by including crimes which

the text does not specifically list. By doing so, Petitioner argued, the Sentencing

Commission has unconstitutionally expanded the Guidelines to include inchoate

crimes. The court of appeals denied rehearing.

REASONS FOR GRANTING THE PETITION

There Is A Deeply Entrenched Circuit Split Regarding How/If Kisor

Limits Stinson, Resulting In Nationwide Disparities in Sentencing

Absent clarification from this Court, sentencing disparities between circuits

nationwide will persist, and the Commission’s stated purpose of achieving uniformity

in sentencing will continue to be defeated. For Petitioner and the tens of thousands of

other federal criminal defendants who will be sentenced, this tension has resulted in

them facing significantly harsher prison sentences than their peers based solely on the

location of their cases. Because courts are unable or unwilling to determine how Kisor

limits Stinson, the Commission cannot possibly fulfill its mandate to achieve federal

sentencing uniformity.

A. The Third, Sixth, and D.C. Circuits Have Properly Refused to Defer

to Guidelines Commentary

In United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018), the D.C. Circuit

determined that prior convictions for attempted drug distribution did not qualify as

predicate-controlled substance offenses because “attempts” were not included in the

Guideline text. Rather than reflexively deferring to the commentary, the court analyzed

the text of the underlying Guideline and noted that § 4B1.2(b) provides a precise list of

controlled substance offenses, which does not include inchoate offense. Id. at 1091.

Invoking the statutory interpretation maxim of “expressio unius est exclusion alterius,”

the court explained that the Commission “showed within § 4B1.2(b) itself that it knows

how to include attempted offenses when it attends to do so,” pointing out that the

Commission expressly included “attempted use” in its definition of a “crime of violence”

in § 4B1.2(a)(1). Id. at 1091. In other words, the court concluded, “If the Commission

wishes to expand the definition of “controlled substance offenses” to include attempts,

it may seek to amend the language of the guidelines by submitting the change for

congressional review.” Id. (citing Stinson at 44).

In an en banc opinion, the Sixth Circuit unanimously determined that the

Commission’s use of commentary to broaden the definition of “controlled substance

offense” in § 4B1.2(b) was improper. United States v. Havis, 927 F.3d 382 (2019). The

court underscored the importance of the congressional review, notice and comment

requirements for Guideline promulgation or amendments, describing that process as

serving to “safeguard the Commission from uniting legislative and judicial authority in

violation of the separation of powers.” Id. at 385-86. Because commentary to the

Guidelines is never subjected to these safeguards, accepting such comments as having

the same effect as the Guidelines themselves renders those safeguards meaningless.

Id. at 387.

The court in Havis also correctly observed that the Commission’s commentary in

this instance exceeded its typical role of resolving ambiguity in or offering an

interpretation of an underlying text, noting that “the Commission did not interpret a

term in the guideline itself—no term in §4B1.2(b) would bear that construction. Rather,

the Commission used Application Note 1 to add an offense not listed in the guideline.”

Id. at 386.

As in 553, the court explained that the Commission could include attempt crimes

as part of this definition if it so desired. Id. at 386. Furthermore, by using Application

Note 1 to add an offense not listed in the guideline, the Commission renders

meaningless the “institutional constraints that make the Guidelines constitutional in

the first place—congressional review and comment.” Id.

Similarly, the Third Circuit issued an en banc opinion in United States v. Nasir,

17 F.4th 459 (3d Cir. 2021) overruling previous circuit precedent in United States v.

Hightower, 25 F.3d 182 (3rd Cir. 1994). In Nasir, the defendant was sentenced as a

career offender under § 4B1.1 based on two prior convictions, one of which was for

attempting to possess with intent to distribute cocaine. Id. at 156. The court noted that

while its prior decision in Hightower was guided by the standard set forth in Stinson,

“after the Supreme Court’s decision last year in Kisor v. Wilkie (citations omitted), it is

clear that such an interpretation is not warranted.” Id. The court further explained

that before a regulation is determined to be “genuinely ambiguous,” which would trigger

Auer deference, it must first “exhaust all traditional tools of construction.” Id. (citing

Kisor at 2414-15).

B. Despite Kisor, At Least Five Other Circuits Continue To Apply

Stinson Deference

Despite the limitations that Kisor placed on reflexive judicial deference five other

circuits find themselves constrained by precedent or simply unwilling to apply this

Court’s holding in Kisor to the Guidelines.

While the Second Circuit has not explicitly explained how, if at all, Kisor affects

its rulings, it has soundly rejected any argument which would unsettle the deference to

Application Note 1 required by circuit precedent. See United States v. Wynn, 845 Fed.

Appx. 63 (2d Cir. 2021) (citing United States v. Tabb, 949 F.3d 81, (2d Cir. 2020) and

(United States v. Richardson, 958 F.3d 151 (2d Cir. 2020). Instead, the Second Circuit

continues to reflexively defer to Application Note 1 and its broad expansion of the

Guidelines, noting that “this Court is ‘bound by the decisions of prior panels until such

time as they are overruled either by an en banc panel of our Court or by the Supreme

Court.” Id. (quoting United States v. Wilkerson, 361 F.3d 717, 732 (2d. Cir. 2004).

The Eighth Circuit sounds a similar refrain. In United States v. Broadway, 815

Fed Appx. 95, 96 (8th Cir. 2020), the Eighth Circuit reaffirmed its deference to

commentary on § 4B1.2 and held that Application Note 1 warrants Auer/Seminole Rock

deference because the comment “is not a ‘plainly erroneous reading’” of the text of the

Guidelines. Id. The panel acknowledged how this ruling could conflict the framework

this Court established in Kisor, noting that while “Auer/Seminole Rock deference is

triggered only by ‘genuine ambigu[ity],’” it opined that it was in no position to overrule

precedent. Id. at 96 n.2.

The Ninth Circuit also found itself similarly restricted in United States v. Crum,

934 F.3d 963, 966 (9th Cir. 2019) (cleaned up). Despite noting its concern that the

Commission “expand[ed] the definition of ‘controlled substance offense’... without any

grounding in the text of § 4B1.2” and without the safeguard of congressional review, the

court felt “compelled by” circuit precedent to defer to the commentary. Id.

Meanwhile, the First Circuit has found “no inconsistency” between the

Guidelines and its commentary, and thus, Application Note 1 is authoritative. United

States v. Lewis, 963 F.3d 16, 24 (1st Cir. 2020). Despite the limits this Court placed on

judicial deference in Kisor, the panel in Lewis outright rejected reviewing its doctrine

of reflexive deference, noting that “we fail to find a sound basis for concluding with

sufficient confidence that our prior panels would have found in Kisor any reason to

“'change [their] collective mind[s].'” Id. at 24 (cleaned up).

While the court asserted

that prior circuit decisions did not stray “beyond the zone of genuine ambiguity in

deeming Application Note 1 consistent with § 4B1.2,” it also went on to acknowledge

the circuit split on this issue and admit that the underlying question “is close.” Id at

25. Given circuit precedence and the limits of a panel decision, the court further

asserted that to overturn precedent would cause the First Circuit to “lose the benefits

of stability and invite litigants to regard our law as more unsettled than it should be.”

Id.

For its part, the Seventh Circuit also firmly rejects the argument that

Commission commentary cannot expand the Guidelines definition of “controlled

substance offense” and instead adheres to its own Stinson-guided precedent, without

any mention of Kisor and the limits this Court has placed upon judicial deference.

United States v. Smith, 989 F.3d 575, 584 (7th Cir.), cert. denied, 142 S. Ct. 488 (2021).

Thus, at least three circuits have rightfully acknowledged the troubling practice

of reflexive judicial deference to Guidelines commentary and have noted that, postKisor, such deference is improper given the lack of ambiguity in § 4B1.2(b). Id., supra.

Furthermore, at least one circuit has declined to upset precedent for the sake of

preserving “stability.” Lewis at 25. Ironically, by seeking to preserve this supposed

stability, the First Circuit has only contributed to instability and discrepancy

nationwide in federal sentencing.

Absent a ruling from this Court specifically

addressing how Kisor limits deference to Guidelines commentary, the circuits will

remain split on this important issue and some circuits will continue to improperly afford

Seminole Rock/Auer deference to Guidelines commentary despite the utter lack of any

underlying, textual ambiguity to justify such deference.

II.

The Decision Below Conflicts With Kisor

Review is also necessary because the Fifth Circuit’s analysis of Guidelines

commentary is still guided by its own precedent, which does little to limit the deference

it affords the Commission’s commentary without conducting an exhaustive analysis of

the underlying text. Indeed, like the aforementioned circuits, the Fifth Circuit has

made it abundantly clear that, absent a Supreme Court ruling specifically addressing

the limits of judicial deference to the Guidelines’ commentary, it will continue to view

Kisor’s limitations as inapplicable as to Application Note 1.

A. The Fifth Circuit’s Reflexive Deference To Guidelines Commentary

Conflicts With This Court’s Precedence

The Fifth Circuit has held that Stinson still controls its reflexive deference to the

Guidelines’ commentary, and that its decision in Lightbourn is the circuit’s controlling

precedent. United States v. Goodin, 835 F. Appx. 771, 782 (5th Cir. 2021). Notably,

however, the panel in Goodin acknowledged the Third Circuit’s decision in Nasir and

its application of Kisor, stating, “If Goodin did not have the other two qualifying offenses

and we were not constrained by Lightbourn, our panel would be inclined to agree with

the Third Circuit.” Id. at 782 n.1. Unfortunately for Petitioner and other defendants

sentenced to longer prison terms than their counterparts in other circuits, the Fifth

Circuit has shown that it does not have any intention of overturning Lightbourn.

More explicitly, The Fifth Circuit’s stance in regard to Kisor’s effect on the

interpretation of the Guidelines and its commentary is clearly stated in two

unpublished opinions, wherein the court stated, “Kisor did not discuss the Sentencing

Guidelines...Because there is currently no case law form the Supreme Court or this

court addressing the effect of Kisor on the Sentencing Guidelines...” United States v.

Cruz-Flores, 799 F. Appx. 245, 246 (5th Cir. 2020) and United States v. Vivar-Lopez, 788

F. App'x 300, 301 (5th Cir. 2019). While the court noted that these unpublished opinions

should not be treated as precedent, the Fifth Circuit’s actions in readily applying Kisor

to civil matters while simultaneously disregarding any implication Kisor may have for

federal sentencing purposes show this to be an accurate description of its stance

regarding Kisor and its effect on the interpretation of the Sentencing Guidelines.

Indeed, in Johnson v. BOKF Nat'l Ass'n, 15 F.4th 356, (5th Cir. 2021), the court

tacitly acknowledged the requirements set forth in Kisor and conducted a thorough,

exhaustive analysis of regulations promulgated by the Office of the Comptroller of the

Currency (“OCC”), an agency tasked by Congress to implement the National Bank Act

of 1864, in order to determine what deference, if any, it should afford the OCC’s

interpretation of a certain regulation. Id. at 362-65.

While Kisor may not have explicitly tackled the issue of deference to the

Guidelines’ commentary, the Fifth Circuit’s selective application of Kisor is

fundamentally at odds with this Court’s analysis in Stinson. In no uncertain terms,

this Court stated that, “The Sentencing Commission promulgates the guidelines by

virtue of an express congressional delegation of authority for rulemaking, and through

the informal rulemaking procedures in 5 U.S.C. § 553. Thus, the guidelines are the

equivalent of legislative rules adopted by federal agencies...this type of commentary is

akin to an agency’s interpretation of its own legislative rules.” Stinson at 1919 (cleaned

up).

Thus, by determining that Kisor does not apply to the Guidelines and the

Commission’s commentary, the Fifth Circuit disregards the analysis used by this Court

in the very case the circuit relies upon to justify its sidestepping of Kisor. Goodin at 782

(“...the district court correctly held that we are bound by Supreme Court precedent,

[Stinson], and our circuit precedent, [Lightbourn].”)(citations omitted).

B. Application Note 1 Is Invalid

This Court has determined that courts have a duty to conduct an analysis of the

“plain meaning” of a given regulation before declaring it ambiguous and therefore

deserving of judicial deference to an agency’s interpretation of that regulation. Kisor at

2419 and 2415. Under this analysis, the judiciary owes no deference to Application Note

Petitioner was classified as a “career offender” pursuant to U.S.S.G. §4B1.1(a)

based upon state convictions for “controlled substance offenses.” U.S.S.G. §4B1.2(b)

enumerates the offenses which constitute “controlled substance offense.” This list does

not include inchoate crimes or the crime of “attempting to commit” the crimes listed.

Rather, Application Note 1 modifies the definition of “controlled substance offense” in

§4B1.2(b) by including inchoate offenses such as “attempting to commit such offenses.”

Notably, Amendment 528 makes clear that there is no ambiguity in §4B1.2 which

Application Note 1 is attempting to clarify, and that the commentary is also neither

interpretative nor explanatory. Instead, Application Note 1 is a clear modification of

§4B1.2(b) to expand the text, and the Sentencing Commission has admitted as much in

Amendment 528 when it readily declared that it “has modified this definition in several

respects...” (Emphasis added). Thus, the Sentencing Commission offers no justification

for deference to Application Note 1 of §4B1.2 and instead acknowledges that, via

commentary, it has modified the very text of the Guidelines.

As this Court stated in Kisor, deference is only necessary where the rule or

regulation in question is determined to be “genuinely ambiguous” after “exhaust[ion] of

all the traditional tools of construction.” Id. at 2415 (cleaned up). Consequently, absent

that ambiguity, there is nothing to justify deference. Id. Here, there is no ambiguity

whatsoever in the text of §4B1.2. Inchoate crimes are unequivocally absent from the

list which defines “controlled substance offense.” As the court noted in Havis, “the

Commission did not interpret a term in the guideline itself,” but instead “used

Application Note 1 to modify the text and to add an offense not listed in the guideline.”

Havis, 927 F.3d at 386.

The Commission also cannot be said to simply be unable to amend the

Guidelines, or to be otherwise unaware of such an omission. As the court in Winstead

aptly pointed out, the Commission has otherwise shown that it is willing and able to

include inchoate offenses when it intends to do so.

Winstead, 890 F.3d at 1091.

§4B1.2(a)(1), a section of the very same Guideline which defines “controlled substance

offense,” expressly includes the “attempted use” of violence in its definition of a “crime

of violence.” (Emphasis added). Attempt is also expressly included in other areas of the

Guidelines, such as in §2A2.1, §2D1.1, §2K1.3, and §2X1.1. 1

These Guidelines

specifically include “attempt” crimes in their very titles and prescribe sentencing

guidelines accordingly. Thus, if the Commission wanted to include inchoate or attempt

crimes in its definition of “controlled substance offense,” it would have done so by use of

the proper procedures. Until the Commission follows proper procedures in order to

amend the Guidelines, allowing it to expand the Guidelines via commentary is

improper.

Consequently, the judicial deference the Fifth Circuit and other circuits afford

Application Note 1 is misplaced. There is no ambiguity in the underlying Guideline to

justify this deference, and by expanding the definition of the Guidelines via

commentary, the Commission has unlawfully bypassed the rule-making procedures it

is otherwise required to follow.

III.

Reflexive Judicial Deference To Guidelines Commentary Erodes The

Fundamental Principles Of Separation Of Powers And Due Process

The judiciary has a duty to determine the meaning and application of the law.

Marbury v. Madison, 5 U.S. 137, 177 (1803). This duty flows from the need for an

independent judiciary, which serves as a check and balance to the executive and

legislative branches. The legislature criminalizes conduct and sets statutory penalties,

the executive prosecutes crimes and can recommend a sentence, while the judiciary

sentences defendants according to applicable statutory framework. United States v.

Bass, 404 U.S. 336, 348 (1971).

These provisions are reproduced in Appendix D.

Administrative agencies are “intrusted by the Congress with broad control over

activities which in their detail cannot be dealt with directly by the Legislature.”

Morgan v. United States, 304 U.S. 1, 14, 58 S. Ct. 773, 775, 82 L. Ed. 1129 (1938). By

exercising delegated legislative power, an administrative agency “wield[s] vast power

and touches almost every aspect of daily life.” Free Enter. Fund v. Public Co. Accounting

Oversight Bd., 561 U.S. 477, 499 (2010).

Given this considerable power and

responsibility, the Constitution requires that Congress delineates the “boundaries of

[this] delegated authority.” Mistretta v. United States, 488 U.S. 361, 372-73 (1989).

Accordingly, this Court has recognized on numerous occasions the importance of

limiting the judiciary’s deference to the very same agencies it has an obligation to check,

which would necessarily include the Commission. Kisor, 139 S. Ct. at 2438 (Gorsuch,

J., concurring) (“Auer represents no trivial threat to these foundational [separation of

power] principles.”); Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 119 (2015) (Thomas J.,

concurring) (“Seminole Rock...represents a transfer of judicial power to the Executive

Branch, and it amounts to an erosion of the judicial obligation to serve as a ‘check’ on

the political branches”); Christensen at 588 (Deferring to an agency’s interpretation

without proper analysis of an underlying regulation would “permit the agency, under

the guise of interpreting a regulation, to create de facto a new regulation.”).

Here, a body this Court has recognized as the equivalent of an administrative

agency is being afforded unfettered deference when the very liberty of the people being

sentenced is at stake. Because of this, deference “has no role to play when liberty is at

stake.

Under our Constitution, “[only] the people’s elected representatives in the

legislature are authorized to ‘make an act a crime.’” Guedes v. Bureau of Alcohol,

Tobacco, Fire- arms & Explosives, 140 S. Ct. 789, 790 (2020) (Gor- such, J., statement

regarding denial of certiorari) (citing United States v. Davis, 139 U.S. 2319, 2323

(2019)). The judiciary especially has a crucial role in safeguarding the fundamental

principle of liberty. Before a person is deprived of his or her liberty, the judiciary “owe[s]

them an independent determination that the law actually forbids their conduct.” Id.;

see also Abramski v. United States, 573 U.S. 169, 191 (2014) (“courts bear an ‘obligation’

to determine independently what the law allows and forbids.”) emphasis added). Thus,

when it comes to matters of sentencing—that is, matters by which the State deprives

an individual of his or her liberty, this Court has a heightened duty to independently

analyze the underlying laws. This duty flows from the judiciary’s fundamental purpose

as a check to the other two branches.

This matter concerns the right of due process as well. Due process requires that

“a fair warning should be given to the world in language that the common world will

understand, of what the law intends to do if a certain line is passed. To make the

warning fair, so far as possible the line should be clear.” McBoyle v. United States, 283

U.S. 25, 27 (1931).

The procedure which typically controls how the Commission

promulgates amendments to the Sentencing Guidelines is the means by which this “fair

warning” requirement of due process is satisfied, as it provides notice of proposed

amendments and affords an opportunity of review and comment. Because it bypasses

the “notice and comment” procedure normally required for amendments to the

Guidelines, as well as congressional review, allowing commentary without question or

scrutiny to automatically have the full weight of laws carefully prescribed by Congress

violates the right of due process, as defendants are never given a “fair warning,”

regarding commentary.

IV.

This Case Presents An Ideal Vehicle

A. This Issue Occurs Frequently Across the Country

Mr. Duke is not alone. By the Commission’s own count, over 60,000 people were

sentenced in fiscal year 2020. Fiscal Year 2020 Overview of Federal Criminal Cases,

U.S. Sentencing Commission (Aril 2021).2 Of those 60,000 people, 1,216 individuals

were deemed “career” offenders in 2020 alone. Id. at 7.

Drug related offenses were the second most common federal crime, accounting

for over 25% of all total federal criminal offenders. Id. at pg. 4. Going back to and

including the year 2016, almost 100,000 individuals have been sentenced for drug

offenses. Id. at 5.

This case is an ideal opportunity for this Court to determine when, in light of

Kisor, Stinson deference is appropriate. Mr. Duke has maintained throughout these

proceedings that the Fifth Circuit’s reliance upon Lightbourn is improper. Moreover,

the circuit split regarding Kisor’s effect on courts’ analyses of Guidelines text is now

deeply entrenched. As some of the circuits which still adhere to Stinson deference have

pointed out, only a decision by this Court can address the current nationwide disparity

in sentencing.

2 It should be noted that this figure presents a significant decrease of 15.6% from the number of cases in

2019, much of which is attributable to the ongoing COVID-19 pandemic. For reference, in 2019, over

76,000 people were sentenced in federal court.

CONCLUSION

The issues presented herein are ripe for this Court’s consideration and,

consequently, this Court should grant Mr. Duke’s petition. Alternatively, if the Court

grants another petition which presents substantially similar issues and is on a similar

filing schedule, the Court should hold this case pending a decision on the merits.

WHEREFORE, Petitioner, Anderson Duke, respectfully prays that this Court

grant his petition and that it hold that Application Note 1 to §4B1.2 is an improper

modification of the Sentencing Guidelines, and that, consequently, no judicial deference

should be afforded to it. Petitioner further prayers that the opinion of the lower court

be overturned, and that this case be remanded for further proceedings consistent with

this Court’s ruling.

Respectfully submitted,

____________________________

Michael L. DuBos