Petition for Writ of Certiorari — Damon Ramon Martinez, Petitioner v. United States
Supreme Court briefMar 14, 2022
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NO. _________________
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2021
DAMON RAMON MARTINEZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Tenth Circuit
PETITION FOR A WRIT OF CERTIORARI
VIRGINIA L. GRADY
Federal Public Defender
HOWARD A. PINCUS
Asst. Federal Public Defender
Counsel of Record for Petitioner
633 17th Street, Suite 1000
Denver, Colorado 80202
(303) 294-7002
QUESTION PRESENTED
This Court has applied so-called Seminole Rock or Auer deference,
developed in the context of an agency’s interpretation of its regulations, to
commentary the United States Sentencing Commission issues to is noticeand-comment guidelines. In Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019),
the Court clarified that there cannot be any Seminole Rock deference unless
a court first determine that a regulation is “genuinely ambiguous.”
Section 4B1.2 of the guidelines defines “crime of violence” to “mean”
certain enumerated offenses, or offenses that have as an element the use,
attempted use or threatened use of physical force. The commentary states
this also includes attempts and conspiracies to commit crimes of violence.
The circuits are split 8-4 as to whether this commentary is entitled to
deference, with many adhering to their pre-Kisor precedent that it is and
refusing to reconsider that precedent.
The question presented here is:
Does the Sentencing Commission’s commentary
impermissibly expand the unambiguous definition of
“crime of violence” in U.S.S.G. § 4B1.2 to include attempts
and conspiracies to commit crimes of violence?
i
STATEMENT OF RELATED CASES
United States v. Martinez, No. 18-cr-00522-WJM (D. Colo.)
Judgment entered October 16, 2019.
United States v. Martinez, No. 19-1389 (10th Cir.)
Judgment entered June 23, 2021; rehearing denied December 14, 2020.
ii
TABLE OF CONTENTS
PAGE
QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
STATEMENT OF RELATED CASES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
FEDERAL RULES INVOLVED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
REASONS FOR GRANTING THE WRIT
This case presents an important question of Seminole
Rock/Auer deference in the context of the federal sentencing
guidelines that requires this Court’s intervention to resolve.. . . . . 11
A.
The courts of appeals are deeply split on the
question presented, with most persisting in
precedent issued before Kisor that wrongly defers
to commentary even though the guideline text is
clear, and that split is likely to persist.. . . . . . . . . . . . . . . . 13
iii
B.
The question presented is of exceptional
importance, as it implicates whether a great many
defendant are receiving significantly higher
sentences than they should, and also raises serious
administrative-law and constitutional concerns.. . . . . . . 21
C.
This case is a good vehicle to consider the question
presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
APPENDIX
Decision of the United States Court of Appeals for the Tenth
Circuit in United States v. Martinez, 860 F. App’x 584
(10th Cir. June 23, 2021).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A1
Oral ruling of the United States District Court for the District of
Colorado. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A6
Order of the Tenth Circuit denying rehearing en banc. . . . . . . . . . . . A9
U.S.S.G. § 2K2.1 and commentary. . . . . . . . . . . . . . . . . . . . . . . . . . . . A10
U.S.S.G. § 4B1.2 and commentary. . . . . . . . . . . . . . . . . . . . . . . . . . . . A20
iv
TABLE OF AUTHORITIES
Page
CASES
Auer v. Robbins, 519 U.S. 452 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). . . . . . . . . . . 4, 6, 15
Braxton v. United States, 500 U.S. 344 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . 20
Burgess v. United States, 553 U.S. 124 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . 14
Colautti v. Franklin, 439 U.S. 379 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives,
140 S. Ct. 789 (2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
James v. United States, 550 U.S. 192 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Kisor v. Wilkie, 139 S. Ct. 2400 (2019). . . . . . . . . . . i, 4, 5, 11, 12, 13, 15, 23, 24
Mistretta v. United States, 488 U.S. 361 (1989). . . . . . . . . . . . . . . . . . . . . . 23, 25
People v. Laurson, 15 P.3d 791 (Colo. App. 2000). . . . . . . . . . . . . . . . . . . . . 27
People v. Lehnert, 163 P.3d 1111 (Colo. 2007) (en banc).. . . . . . . . . . . . . . . . 27
Peugh v. United States, 569 U.S. 530 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Stinson v. United States, 508 U.S. 36 (1993). . . . . . . . . . . . . . . . . . . . 5, 6, 18, 23
United States v. Campbell, 22 F.4th 438 (4th Cir. 2022). . . . . 17, 18, 19, 20, 29
v
United States v. Crum, 934 F.3d 963 (9th Cir. 2019),
cert. denied, 140 S. Ct. 2629 (2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
United States v. Deiter, 890 F.3d 1203 (10th Cir. 2018). . . . . . . . . . . . . . . . . . 28
United States v. Goodin,
835 F. App’x 771 (5th Cir. 2021) (unpublished). . . . . . . . . . . . . . . . . . . 20
United States v. Havis, 907 F.3d 439 (6th Cir. 2018),
vacated by grant of rehearing en banc. . . . . . . . . . . . . . . . . . . . . . . . 24, 25
United States v. Havis,
927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam).. . . . . . 16, 17, 25, 26
United States v. Lewis, 963 F.3d 16 (1st Cir. 2020),
cert. denied, 141 S. Ct. 2826 (2021). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Lewis, No. 18-1916 (1st Cir. Oct. 2, 2020) (order). . . . . . . . 20
United States v. Lovato, 950 F.3d 1337 (10th Cir. 2020), rehearing and
rehearing en banc denied, (10th Cir. June 23, 2020) (order),
cert. denied, 141 S. Ct. 2814 (2021). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Lovelace, No. 19-1100,
(10th Cir. Oct. 19, 2019) (order). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Celso Martinez,
602 F.3d 1166 (10th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 14, 15
United States v. Martinez,
860 F. App’x 584 (10th Cir. June 23, 2021).. . . . . . . . . . . . . . . . . . . . . . . . 1
United States v. Meritt, 924 F.3d 809 (8th Cir. 2019). . . . . . . . . . . . . . . . . . . . 19
United States v. Nasir, 982 F.3d 144 (3d Cir. 2020) (en banc).. . . . . . 17, 18, 26
vi
United States v. Richardson, 958 F.3d 151 (2d Cir.),
cert. denied, 141 S. Ct. 423 (2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Sabillon-Umana, 772 F.3d 1328 (10th Cir. 2014). . . . . . . . . 22
United States v. Smith, 989 F.3d 575 (7th Cir.),
cert. denied, 142 S. Ct. 488 (2021). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Sorenson, 19-30082 (9th Cir. Nov. 3, 2020) (order). . . . . . . 20
United States v. Tabb, No. 18-338 (2d Cir. June 20, 2021) (order). . . . . . . . . 20
United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018). . . . . . . . . . . . . . . 16
STATUTORY PROVISIONS
5 U.S.C. § 553. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5 U.S.C. § 801.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
18 U.S.C. § 922(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
18 U.S.C. § 924(e)(2)(B)(I).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
18 U.S.C. § 3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 944(o). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
28 U.S.C. § 994(p). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
28 U.S.C. § 994(x).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
28 U.S.C. § 1254(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
vii
28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Colo. Rev. Stat. § 18-2-101(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Colo. Rev. Stat. § 18-2-201(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
OTHER
The Federalist No. 47 (James Madison) (J. Cooke ed. 1961).. . . . . . . . . . . . . 24
Baron de Montesquieu, Spirit of the Laws (T. Evans ed., 1777) (1978).. 24-25
United States Sentencing Comm’n, 2019 Annual Report (2020). . . . . . . . . . 21
U.S.S.G. § 2K1.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
U.S.S.G. § 2K2.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
U.S.S.G. § 2K2.1(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6
U.S.S.G. § 2K2.1(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6
U.S.S.G. § 2K2.1, comment. (n.1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3, 7, 17
U.S.S.G. § 2L1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
U.S.S.G. § 2S2.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
U.S.S.G. § 2X6.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
U.S.S.G. § 3B1.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
U.S.S.G. § 4B1.1(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
viii
U.S.S.G. § 4B1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 14
U.S.S.G. § 4B1.2(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 27
U.S.S.G. § 4B1.2(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7
U.S.S.G. § 4B1.2, comment. (n.1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ix
PRAYER
Petitioner, Damon Ramon Martinez, respectfully prays that a Writ of
Certiorari be issued to review the opinion of the United States Court of
Appeals for the Tenth Circuit that was handed down on June 23, 2021.
OPINIONS BELOW
The unreported decision of the United States Court of Appeals for the
Tenth Circuit, see United States v. Martinez, 860 F. App’x 584 (10th Cir.
June 23, 2021), is found in the Appendix at A1. The oral decision of the
United States District Court for the Colorado on the guideline issue raised
here is found in the appendix at A6.
JURISDICTION
The United States District Court for the District of Colorado had
jurisdiction over this criminal action pursuant to 18 U.S.C. § 3231. The
United States Court of Appeals for the Tenth Circuit had jurisdiction under
28 U.S.C. § 1291.
This Court's jurisdiction is premised upon 28 U.S.C. § 1254(1). The
Tenth Circuit denied Mr. Martinez’s petition for rehearing en banc on
December 13, 2021. A6. Ninety days from that date is Sunday, March 1,
2022, making this petition due on the next business day of Monday, March
14, so this petition is timely.
GUIDELINE PROVISIONS INVOLVED
This petition concerns two provisions of the United States Sentencing
Guidelines, and an application note to each provision. Section 2K2.1 of the
Sentencing Guidelines provides in relevant part:
(a) Base Offense Level (Apply the Greatest):
*
*
*
(2) 24, if the defendant committed any part of the instant
offense subsequent to sustaining at least two felony
convictions of either a crime of violence or controlled
substance offense;
*
*
*
(4) 20, if -(A) the defendant committed any part of the instant
offense subsequent to sustaining one felony
conviction of either a crime of violence or a
controlled substance offense; or . . . .
Application Note 1 to that guideline provides in relevant part:
1. Definitions. -- For purposes of this guideline:
*
*
*
2
“Crime of Violence” has the meaning given that term in
§ 4B1.2(a) and Application Note 1 of the Commentary to
§ 4B1.2.
Section 4B1.2 of the Sentencing Guidelines provides in relevant part:
(a) The term “crime of violence” means any offense under
federal or state law, punishable by imprisonment for a term
exceeding one year, that -(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
(2) is murder, voluntary manslaughter, kidnapping,
aggravated assault, a forcible sex offense, robbery, arson,
extortion, or the use or unlawful possession of a firearm
described in 26 U.S.C. § 5845(a) or explosive material as
defined in 18 U.S.C. § 841(c).
Application Note 1 to Section 4B1.2 provides in relevant part:
1.
Definitions. -- For purooses of this guideline -“Crime of violence” and “controlled substance offense”
include the offenses of aiding and abetting, conspiring,
and attempting to commit such offenses.
3
STATEMENT OF THE CASE
In Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), this
Court addressed the meaning of an administrative regulation. Although
this Court deemed that meaning to be clear, id. at 414, it proceeded to state
that “the ultimate criterion is the administrative interpretation, which
becomes of controlling weight unless it is plainly erroneous or inconsistent
with the regulation,” id. This Seminole Rock deference -- more recently
referred to as Auer deference, after this Court’s decision in Auer v.
Robbins, 519 U.S. 452 (1997) -- became the definitive formulation of the
weight accorded an agency’s interpretation of its own rule.
This deference was meant to operate only if the governing regulation
was ambiguous. But this crucial limitation was often ignored. As this
Court recently recognized in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), it had
itself sent “mixed messages,” id. at 2414. Just as the other federal courts
often did, this Court too upheld “agency interpretations sometimes
without significant textual analysis of the underlying regulation.” Id.
This Court granted review in Kisor to decide whether to overrule
Auer. Although it declined to do so, the Court in Kisor “reinforced some of
4
the limits inherent in the Auer doctrine.” Id. at 2415. Chief among them is
that “a court should not afford Auer deference unless the regulation is
genuinely ambiguous.” Id. at 2415. In emphasizing such limits, this Court
recognized that the Seminole Rock description of deference to agency
interpretation unless the interpretation is “plainly erroneous or
inconsistent” with the regulation -- which is the “most classic formulation
of the test” -- “may suggest a caricature of the doctrine, in which deference
is reflexive.” Id. at 2414-15.
This Court imported the Seminole Rock formulation into the context
of the United States Sentencing Guidelines in Stinson v. United States, 508
U.S. 36 (1993). The guidelines themselves are promulgated by the United
States Sentencing and are subject to the notice-and-comment provisions of
the Administrative Procedure Act (APA), 5 U.S.C. § 553. See 28 U.S.C.
§ 994(x). The proposed amendments are then submitted to Congress,
which has six months to review them before they take effect. 28 U.S.C.
§ 994(p). In both ways, this resembles the rulemaking of Executive Branch
agencies. 5 U.S.C. § 801. The Sentencing Commission also issues
commentary about the Guidelines, which is not subject to notice-and5
comment, or to approval, rejection or modification by Congress. It was one
such commentary that was at issue in Stinson.
This Court explained in Stinson that the guidelines “are the
equivalent of legislative rules adopted by federal agencies.” Stinson, 508
U.S. at 45. And it treated the commentary “as akin to an agency’s
interpretation of its own legislative rules.” Id. It thus applied Seminole
Rock deference to the commentary. Id. (quoting Seminole Rock, 325 U.S. at
414).
This case involves commentary that is inconsistent with guideline
text. Damon Martinez pleaded guilty to being a felon in possession of a
firearm, contrary to 18 U.S.C. § 922(g). The relevant sentencing guideline
for that offense is § 2K2.1. It provides for a base-offense level of 24 if the
possession occurs after two or more convictions for either a crime of
violence or a controlled-substance offense, U.S.S.G. § 2K2.1(a)(2), and a
base-offense level of 20 if it occurs after only a single such conviction, id.,
§ 2K2.1(a)(4).
Section 2K2.1 does not itself define what is a crime of violence.
Instead, application note 1 to that guideline incorporates the definition of
6
the term in the career-offender context. See U.S.S.G. § 2K2.1, comment.
(n.1). The note states that “‘Crime of violence’ has the meaning given that
term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.”
Id.
Section 4B1.2(a), in turn, defines crimes of violence as being
completed offenses. It says the term “means” any state or federal offense,
punishable by more than a year in prison, that is either an enumerated
offense, U.S.S.G. § 4B1.2(a)(2), or that “has an element the use, attempted
use, or threatened use of physical force against the person of another,” id.,
§ 4B1.2(a)(1).
Robbery is one of the enumerated offenses in § 4B1.2(a)(2). In the
district court, Mr. Martinez agreed that his Colorado robbery conviction
was therefore a crime of violence. But he urged that neither of his
convictions for inchoate offenses under Colorado law -- one for attempted
robbery, and the other for conspiracy to commit menacing -- qualified as a
crime of violence. As to each, he insisted that the commentary
impermissibly expanded the guideline text. And so, he continued, his
base-offense level should be 20 based on his prior conviction for the
7
completed robbery, and not the 24 assigned by the presentence report,
which also counted as crimes of violence his prior convictions for the
inchoate offenses.
Mr. Martinez acknowledged that his position was foreclosed in the
Tenth Circuit by United States v. Celso Martinez, 602 F.3d 1166 (10th Cir.
2010). That case, like this one, was a felon-in-possession case. The version
of § 4B1.2(a)(2) that applied there listed burglary of a dwelling as a crime of
violence, id. at 1173, and the district court increased Mr. Celso Martinez’s
guideline range by treating his Arizona convictions for attempted seconddegree burglary as crimes of violence, id. at 1168. The Tenth Circuit
rejected the contention that Application Note 1 to § 4B1.2 was inconsistent
with the guideline text because it treated all attempts to commit crimes of
violence (and similar inchoate offenses) as crimes of violence. In doing so,
the court of appeals did not engage in a textual analysis of the guideline
definition of crime of violence to determine whether it was ambiguous. Id.
at 1174. Instead, the court asked only whether it was possible to reconcile
the guideline definition and the application note. Id. The Tenth Circuit
concluded that this was possible, as to enumerated offenses, by viewing the
8
application note as a “definitional provision” that showed that when the
guideline speaks of a particular offense it is using a “shorthand” that also
includes associated inchoate offenses, so as not to “clutter[] the guideline”:
. . . . the note may be used as a definitional provision. It tells us
when the guideline uses the word for a specific offense, that
word is referring to not just the completed offense, but also
“aiding and abetting” the offense, “conspiring” to commit the
offense, and “attempting” to commit the offense. Rather than
cluttering the guideline with, say, “burglary, aiding and
abetting burglary, conspiring to commit burglary, and
attempting to commit burglary,” the Sentencing Commission
uses the shorthand expression “burglary.”
Id.
The district court in this case overruled Damon Martinez’s objection
to his Colorado attempted-robbery conviction being considered a guideline
crime of violence on the authority of Celso Martinez. Because Mr. Martinez
conceded that his robbery conviction under Colorado law qualified as a
guideline crime of violence, this left him with two such prior convictions,
enough to set his base-offense level at 24. The district court therefore
deemed his similar objection to the conspiracy-to-commit-menacing
conviction, and his other independent arguments for why that conviction
was not a crime of violence, to be moot.
9
From the base-offense level of 24, the district court imposed a fourlevel enhancement and a three-level reduction in offense level for
acceptance of responsibility, for a total-offense level of 25. In Criminal
History Category V, this yielded an advisory guideline range of 100-120
months. Had the court instead agreed with Mr. Matrtinez that the baseoffense level was 20, his total-offense level would have been 21, and his
advisory guideline range would have been 70-87 months. The district
court varied downward from the range of 100-120 months that it believed
applied and sentenced Mr. Martinez to 58 months in prison.
On appeal, the Tenth Circuit rejected Mr. Martinez’s argument that
the commentary improperly expanded the guideline text by including
inchoate offenses on the authority of Celso Martinez. A5. The Tenth
Circuit then denied his petition for rehearing en banc to reconsider Ccelso
Martinez. A9.
10
REASONS FOR GRANTING THE WRIT
This case presents an important question of Seminole Rock/Auer
deference in the context of the federal sentencing guidelines that
requires this Court’s intervention to resolve.
The definitions of “crime of violence” and “controlled substance
offense” in U.S.S.G. § 4B1.2 have profound implications for sentences
imposed in a large number of federal criminal cases every year. The
definitions are used to determine who is a career offender, which in most
cases results in a markedly higher guideline range. The definitions are also
imported into other guidelines where they can cause a large increase in
offense level and guideline range, as they did here. Mr. Martinez’s offense
level was increased by four levels, and his guideline range increased by
more than 40% at the bottom of the range (from 70 months to 100 months)
based on two prior convictions for inchoate offenses that he argued were
not crimes of violence.
This should have been an easy case for Mr. Martinez after Kisor v.
Wilkie, 139 S. Ct. 2400 (2019). The guideline text speaks of “crime of
violence,” as well as “controlled substance offense,” only in terms of
completed offenses. The commentary nevertheless provides that these
11
terms include as well attempts and conspiracies to commit a crime of
violence.
The obvious conclusion after Kisor is that the case for deference to the
commentary fails out of the gate. With no ambiguity in the guideline text,
much less “genuine” ambiguity, Kisor, 139 S. Ct. at 2414, 2415, there is no
“possibility of deference” to the expansion of the text that the commentary
works by including inchoate offenses, id. at 2414. Indeed, two en banc
circuits have unanimously reached this conclusion, one as to the guideline
definition of “crime of violence” and one as to its definition of “controlled
substance offense.”
But the courts of appeals are actually split 8-4 against this conclusion.
This is largely because they are relying on pre-Kisor authority. There is
little hope this split will resolve on its own. Even in the wake of contrary
decisions, at least four circuits have declined to convene en banc to change
their prior precedent.
Only this Court’s intervention can provide uniformity on the
question presented. The resolution of the question is consequential not just
because of the many extra years in prison that defendants will serve under
12
the current majority position unless this Court acts. Resolving the question
is also important because it will inform the courts of appeals’ approach to
other guideline commentary, and because the overly broad deference of
most circuits to guideline commentary raises serious constitutional
concerns. This Court should therefore accept this case for review.
A.
The courts of appeals are deeply split on the question
presented, with most persisting in precedent issued
before Kisor that wrongly defers to commentary even
though the guideline text is clear, and that split is likely to
persist.
What this Court recognized as the “mixed messages” it had sent as to
when there can be deference to an agency’s interpretation of its own noticeand-comment rule, Kisor, 139 S. Ct. at 2414, led most court of appeals to
ignore a necessary prerequisite for any deference to commentary to the
United States Sentencing Guidelines. They typically did not address the
threshold inquiry this Court reiterated in Kisor. That is, they did not try to
determine at the outset whether the guideline itself was genuinely
ambiguous. Instead, they deferred to commentary even when the relevant
guideline was not ambiguous at all.
13
The Tenth Circuit’s opinion in this case is a paradigmatic example of
this. Like most such cases, it involved the definition of either “crime of
violence” or “controlled substance offense” in § 4B1.2. The Tenth Circuit in
United States v. Celso Martinez, 610 F.3d 1066 (10th Cir. 2010), made no
effort to decide whether there was ambiguity as to whether § 4B1.2(a)(2)
included both completed enumerated crimes of violence and their attempts
(or other inchoate offenses), before affording Application Note 1 deference.
Nor would a determination of ambiguity have been possible. By
stating what the term crime of violence “means,” U.S.S.G. § 4B1.2(a), the
definition in the guideline text excludes anything else. “As a rule, a
definition that declares what a term means excludes any meaning that is
not stated.” Colautti v. Franklin, 439 U.S. 379, 392 n.10 (1979); see also
Burgess v. United States, 553 U.S. 124, 130 (2008) (same). An attempt to
commit an offense and the completed offense are also not the same, an
obvious point that this Court stressed in the Armed Career Criminal Act
context in James v. United States, 550 U.S. 192, 197 (2007).
Rather than make the necessary threshold determination of whether
there was genuine ambiguity in the guideline text, the Tenth Circuit took a
14
very different approach. It asked only whether it was possible to reconcile
the text and the application note. Celso Martinez, 602 F.3d at 1174. And it
concluded they could be reconciled by ascribing an unexpressed intent -and one at odds with a normal reading of text, as reflected in cases like
Colautti and Burgess -- to the guideline. Id. The Tenth Circuit theorized
that Application Note 1 showed that when the Sentencing Commission
wrote completed crimes in the guideline it was using them as “shorthand”
for inchoate offenses like attempting to commit the listed offenses, or
conspiring to commit them. Id.
This is a good demonstration of how pliable the classic Seminole
Rock formulation that agency interpretation not be “plainly erroneous or
inconsistent with the regulation,” Bowles v. Seminole Rock & Sand Co., 325
U.S. 410, 414 (1945), has been in the context of the Sentencing Guidelines.
What the Tenth Circuit and other circuits have used in this area -- and
what, as will be seen, most continue to use -- reflects “a caricature of the
doctrine, in which deference is reflexive.” Kisor, 139 S. Ct. at 2414-15.
Even before Kisor, two circuits had not been misled by this Court’s
mixed messages on Seminole Rock/Auer deference, and had refused to
15
defer to commentary in the absence of a threshold determination that the
guideline was ambiguous. In United States v. Winstead, 890 F.3d 1082,
1091 (D.C. Cir. 2018), the D.C. Circuit recognized the decisions of several
other circuits deferring to Application Note 1 of § 4B1.2. But it held such
deference to be impermissible in light of the clear guideline text. It noted
that the guideline had a detailed definition of “controlled substance
offense,” the provision of § 4B1.2 at issue there, and that the commentary
“adds a crime, ‘attempted [drug] distribution,” that is not included in the
guideline. Id. at 1090. Seminole Rock deference, the court explained,
“surely” does not allow for such a consequential impact on defendants
“with no grounding in the guidelines themselves.” Id. at 1092.
The en banc Sixth Circuit also unanimously reached the same
conclusion before Kisor. United States v. Havis, 927 F.3d 382 (6th Cir. 2019)
(en banc) (per curiam). Like this case, Havis involved U.S.S.G. § 2K2.1,
which incorporates in its commentary the definitions of “crime of violence”
and “controlled substance offense” in § 4B1.2 and its application note 1.
The en banc court easily determined that § 4B1.2 specifically identified what
crimes qualify as controlled-substance offenses, and that “none are attempt
16
crimes.” Id. at 386. Application Note 1, it explained, “did not interpret a
term in the guideline itself -- no term in § 4B1.2(b) would bear that
construction.” Id. Rather, the effect of the note was impermissible “to add
an offense not listed in the Guideline.” Id. (emphasis in original).1
After Kisor, two other courts of appeals have agreed with the D.C.
and Sixth Circuits. The en banc Third Circuit did so unanimously in United
States v. Nasir, 982 F.3d 144, 156-60 (3d Cir. 2020) (en banc) (Part II.D of
opinion); id. at 177 (Bibas, J., concurring and joining Part II.D of the en banc
opinion); id. at 179 (Matey, J., concurring and joining en banc opinion in
full); id. at 190 (Porter, J., concurring as to Parts I and II.D of en banc
opinion and dissenting as to Part II.E). And the Fourth Circuit recently did
As noted, the career-offender definitions are imported into U.S.S.G.
§ 2K2.1 through its Application Note 1. The application note provides that
“crime of violence” and “controlled substance” are to be given their
meaning in § 4B1.2 and that guideline’s Application Note 1. U.S.S.G.
§ 2K2.1, comment. (n.1). Neither the Tenth Circuit in Celso Martinez nor
the en banc Sixth Circuit in Havis thought this changed the analysis and
they were right. Application Note 1 to § 4B1.2 has legitimate currency only
if it is a permissible interpretation of that guideline’s text. And as the court
cogently explained in Havis, requiring courts “to defer to commentary on
other commentary [] would carry an even more tenuous connection to the
guideline text.” United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019) (en
banc) (per curiam) (emphasis in original).
1
17
so in United States v. Campbell, 22 F.4th 438, 443-44 (4th Cir. 2022). In
doing so, it observed that if there were any doubt that the plain text of
§ 4B1.2 required the conclusion that Application Note 1 was inconsistent
with the guideline, and so was not entitled to deference, this Court’s
decision in Kisor “renders this conclusion indisputable.” Id. at 444.
In his concurrence in Nasir, Judge Bibas aptly summarized the
general state of the law in the circuits that (Winstead and Havis excepted)
had obtained in the wake of Stinson v. United States, 508 U.S. 36 (1993).
“For decades,” he wrote, “we and every other circuit” followed Stimson
and “gave nearly dispositive weight to the Sentencing Commission’s
commentary, not the Guidelines’ plain text.” Nasir, 982 F.3d at 177 (Bibas,
J., concurring). But, he continued, courts “must look at things afresh.” Id.
As he put it, this Court in Kisor “awoke us from our slumber of reflexive
deference.” Id.
Or so one would have hoped. Unfortunately, a majority of the courts
of appeals continue to sleep. The Fourth Circuit in Campbell observed that
the First, Second, Seventh, Eighth and Eleventh Circuits “have continued to
hold that inchoate crimes like attempt and conspiracy qualify as controlled
18
substance offenses under U.S.S.G. § 4B1.2(b).” Campbell, 22 F.4th at 443
(citing United States v. Lewis, 963 F.3d 16, 21-22 (1st Cir. 2020), cert. denied,
141 S. Ct. 2826 (2021); United States v. Richardson, 958 F.3d 151, 154-55 (2d
Cir.), cert. denied, 141 S. Ct. 423 (2020); United States v. Smith, 989 F.3d 575
(7th Cir.), cert. denied, 142 S. Ct. 488 (2021); United States v. Meritt, 924
F.3d 809, 811-12 (8th Cir. 2019)). And as noted, so has the Tenth Circuit. It
refused without a poll a request for initial rehearing en banc to revisit Celso
Martinez soon after Kisor issued, see United States v. Lovelace, No. 191100, slip op. at 1 (10th Cir. Oct. 19, 2019) (order); and it refused postopinion petitions for rehearing en banc to do so, again without a poll, in
both United States v. Lovato, 950 F.3d 1337 (10th Cir. 2020), rehearing and
rehearing en banc denied, slip op. at 1 (10th Cir. June 23, 2020) (order), cert.
denied, 141 S. Ct. 2814 (2021), and this case, A9.
The two remaining circuits -- the Fifth and the Ninth -- must be
added to the list of those that have stuck with pre-Kisor authority to reject
the position Mr. Martinez presses here. As the Fourth Circuit observed,
panels of those courts have indicated they would hold Application Note 1
to be contrary to § 4B1.2, and therefore not entitled to deference, were they
19
not constrained by contrary circuit precedent. Campbell, 22 F.4th at 443
(citing United States v. Crum, 934 F.3d 963, 966 (9th Cir. 2019), cert. denied,
140 S. Ct. 2629 (2020) and United States v. Goodin, 835 F. App’x 771, 782 n.1
(5th Cir. 2021) (unpublished)).
All told, then, four circuits follow the approach of Kisor. Eight do
not. This split, covering every circuit that hears criminal cases, is not just
a wide one, but one likely to persist without this Court’s intervention. Of
the eight circuits that have persisted in their deference to the commentary
after Kisor, at least four, including the Tenth Circuit, have refused to reexamine their prior precedent by convening en banc. United States v.
Lewis, No. 18-1916 (1st Cir. Oct. 2, 2020) (order); United States v. Tabb, No.
18-338 (2d Cir. June 20, 2021) (order); United States v. Sorenson, 19-30082
(9th Cir. Nov. 3, 2020) (order).
Ordinarily, of course, this Court does not involve itself in the
resolution of guidelines issues, and is content to rely on the Sentencing
Commission’s “statutory duty ‘periodically to review and revise’ the
Guidelines.” Braxton v. United States, 500 U.S. 344, 348 (1991) (quoting 28
U.S.C. § 944(o)). But that is an unsatisfactory option here, and not only
20
because this is not a typical question of what a guideline means or because
it implicates the validity of the Commission’s exercise of authority (both in
the specific context here and generally). It is also because the Commission
has not had a quorum since 2019. See United States Sentencing Comm’n,
2019 Annual Report 3 (2020). The Commission thus cannot possibly fix the
problem. In the meantime, every year a large number of defendants are
unlawfully subjected to higher advisory guideline ranges and, as a
consequence, to longer terms (likely by many years) in prison.
B.
The question presented is of exceptional importance, as it
implicates whether a great many defendant are receiving
significantly higher sentences than they should, and also
raises serious administrative-law and constitutional
concerns.
The issue this petition presents is one of great importance. The
sentencing guidelines are calculated in each of the some 70,000 criminal
cases in which a sentence is imposed in a typical year. Ensuring the proper
approach to guideline commentary, and ensuring that there is not reflexive
deference under Stinson, will have consequences in a very large number of
cases, influencing the ultimate sentence even though the guidelines are
21
advisory. See Peugh v. United States, 569 U.S. 530, 541 (2013) (advisory
“sentencing scheme aims to achieve uniformity by ensuring that sentencing
decisions are anchored by the Guidelines”); United States v. SabillonUmana, 772 F.3d 1328, 1333 (10th Cir. 2014) (Gorsuch, J.) (noting that
guidelines affect sentences and “‘[i[ndeed, that is their very raison d’etre’”)
(quotation omitted).
Nowhere is this more significant than in the context of the careeroffender definitions in § 4B1.2. Those definitions, of course, are used in
determining who is to be sentenced as a career offender, which usually
results in large increases in offense level, and also sets the criminal-history
category in all cases at the highest level of VI. U.S.S.G. § 4B1.1(b). The
result will often be an increase in the advisory guideline of many years or
even decades. As well, the definitions are used to increase the offense level
for many who are not career offenders. Besides the present context of
§ 2K2.1, in which there are sizable increases in offense level where the
unlawful firearm conduct occurs after one or more prior convictions for a
crime of violence and/or a controlled-substance offense, there are
numerous other guidelines that import the definitions to raise offense
22
levels and the ultimate guideline range. See U.S.S.G. §§ 2K1.3, 2L1.2, 2S2.1,
2X6.1, 3B1.5.
The too-ready deference to commentary, without inquiry as to
whether there is genuine ambiguity that might allow it, is problematic for
other reasons too. For starters, there is the basis for this Court’s conclusion
of the constitutionality of the Sentencing Commission, which sits in the
judicial branch, as an “independent agency” that “wields rulemaking
power.” Mistretta v. United States, 488 U.S. 361, 393, 395 (1989). This
Court in Mistretta relied on the fact that the Commission’s “rulemaking is
subject to the notice and comment requirements of the Administrative
Procedure Act.” Id. at 394. But unlike with the Guidelines themselves, the
governing statute does not call on Congress to review and approve of
Commission commentary. Stinson, 508 U.S. at 40, 46 n.5.
Without the limitations on Seminole Rock deference -- including
“[f]irst and foremost,” Kisor, 139 S. Ct. at 2415, the prerequisite of genuine
ambiguity in the guideline text -- it would violate the APA and the
separation of powers required by the Constitution to defer to Commission
commentary. For absent uncertainty of the meaning of a guideline, there
23
is, as with any agency interpretation of a regulation passed with delegated
power, “no plausible reason for deference. The regulation then just means
what it means -- and the court must give it effect, as the court would any
other law.” Kisor, 139 S. Ct. at 2415. Deference to guideline commentary
comports with the APA and the separation of powers only when Kisor’s
requirements are met, as those requirements are what ensure that “courts
retain a firm grip on the interpretive function.” Id. at 2421.
That deference in the guideline context affects how long people will
spend in prison only heightens these concerns. See Guedes v. Bureau of
Alcohol, Tobacco, Firearms and Explosives, 140 S. Ct. 789, 790 (2020)
(Gorsuch, J., statement regarding denial of certiorari) (agency deference
“has no role to play where liberty is at stake”). As Judge Thapar wrote in
his panel concurrence in Havis, “applying Auer” to “extend” a person’s
“time in prison” should cause alarm bells” to go off. United States v.
Havis, 907 F.3d 439, 450 (6th Cir. 2018), vacated by grant of rehearing en
banc. “The whole point of separating the federal government’s powers in
the first place was to protect individual liberty.” Id. (citing The Federalist
No. 47, at 324 (James Madison) (J. Cooke ed. 1961); Baron de Montesquieu,
24
Spirit of the Laws 199 (T. Evans ed., 1777) (1978)). “It is one thing to let the
Commission . . . promulgate Guidelines that influence how long
defendants remain in prison.” Id. at 451. But “[i[t is entirely another to let
the Commission interpret the Guidelines on the fly and without notice and
comment -- one of the limits that the Supreme Court relied on in finding
the Commission constitutional in the first place.” Id. (citing Mistretta, 488
U.S. at 412; id. at 413-27 (Scalia, J., dissenting)).
The limits Kisor stressed ensure the Commission commentary does
not add to the guidelines, but only interprets them in a permissible
manner. It is important that this Court ensure that these limits are enforced
in the guidelines context. Otherwise, “the institutional constraints that
make the Guidelines constitutional in the first place -- congressional review
and notice and comment -- would lose their meaning.” Havis, 927 F.3d at
386-87.
25
C.
This case is a good vehicle to consider the question
presented.
This case is a good vehicle to resolve the issue presented. Mr.
Martinez preserved the issue and argued it in a petition for rehearing en
banc, urging the Tenth Circuit to revisit its pre-Kisor precedent.
The decision on the merit should also result in a decrease in his
guideline range. After Kisor, the answer to the question of whether the
Commission has impermissibly expanded the text of the relevant guideline
should be an easy one to resolve in Mr. Martinez’s favor. This is reflected
in the fact that en banc Third and Sixth Circuits -- a total of thirty-three
circuit judges, see Nasir, 17 F.4th at 461 (sixteen judges); Havis, 927 F.3d at
383 (seventeen judges) -- have unanimously ruled in the way Mr. Martinez
urges. So, his Colorado attempted-robbery conviction could not qualify as
a crime of violence as an enumerated offense under § 4B1.2(a)(2).
Nor could it be counted as a crime of violence under the elements
clause of § 4B1.2(a)(1). That subsection requires a conviction, punishable
by more than a year in prison, that “has as an element the use, attempted
use, or threatened use of physical force against the person of another.”
26
U.S.S.G. § 4B1.2(a)(1). But attempt liability in Colorado requires only that
there be a substantial step that is “strongly corroborative of the firmness of
actor’s purpose to commit the commission of the offense.” Colo. Rev. Stat.
§ 18-2-101(1). This need not involve the use of force, or its attempted or
threatened use. So, planning to rob someone, and arranging to lure
someone to the place of the intended robbery, can be attempted robbery in
Colorado. See People v. Laurson, 15 P.3d 791, 794 (Colo. App. 2000)
(describing such conduct), 797 (holding that several events that occurred
over several days could have constituted a substantial step towards
aggravated robbery); see also People v. Lehnert, 163 P.3d 1111, 1115 (Colo.
2007) (en banc) (“searching out a contemplated victim [or] reconnoitering
the place contemplated for commission of a crime” can each be a
substantial step). Because Colorado attempted robbery does not
categorically satisfy the force clause of § 4B1.2(a)(1), it is not a crime of
violence. 2
Colorado is not unusual in this respect. As the Tenth Circuit has
noted, in the context of the Armed Career Criminal Act, whose elements
clause for the term “violent felony” is identical to that of § 4B1.2(a)(1) for
“crime of violence,” except that it also reaches juvenile adjudications, see 18
U.S.C. § 924(e)(2)(B)(i), “conspiracy and attempt crimes . . . are generally
2
27
The district court did not reach the question of whether Mr.
Martinez’s prior conviction for conspiracy to commit felony menacing with
a deadly weapon qualified as a crime of violence. But for the same reasons,
it cannot possibly satisfy the enumerated-offense clause, which reaches
only completed crimes. And as conspiracy liability punishes a criminal
agreement, Colo. Rev. Stat. § 18-2-201(1), it does not involve the use,
attempted use or threatened use of physical force that is required by the
guideline’s force clause. See also United States v. Deiter, 890 F.3d 1203,
1214 (10th Cir. 2018) (noting that, like attempt, conspiracy “criminalize[s]
mere preparatory conduct”).
In short, Mr. Martinez was wrongly sentenced under a too-high
guideline range in contravention of Kisor. Unless this Court intervenes, a
great many others will suffer a similar fate.
not violent felonies because they criminalize mere preparatory conduct.”
United States v. Deiter, 890 F.3d 1203, 1214 (10th Cir. 2018).
28
CONCLUSION
This Court should grant Mr. Martinez a writ of certiorari.
Respectfully submitted,
VIRGINIA L. GRADY
Federal Public Defender
/s/ Howard A. Pincus
HOWARD A. PINCUS
Assistant Federal Public Defender
Counsel of Record
633 17th Street, Suite 1000
Denver, Colorado 80202
(303) 294-7002
29
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.