Petition for Writ of Certiorari — Lenair Moses, Petitioner v. United States

APPENDIX

1a

APPENDIX A

_________

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______

No. 21-4067

_______

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LENAIR MOSES, A/K/A BONES,

Defendant-Appellant.

_______

Appeal from the United States District Court

for the Eastern District of North Carolina,

at Raleigh.

Louise W. Flanagan, District Judge.

(5:19-cr-00339-FL-1)

_______

Argued: October 29, 2021

Decided: January 19, 2022

_______

Before NIEMEYER and KING, Circuit Judges, and

Thomas T. CULLEN, United States District Judge

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for the Western District of Virginia, sitting by

designation.

_______

Affirmed by published opinion. Judge Niemeyer

wrote the opinion, in which Judge Cullen joined.

Judge King wrote a separate opinion dissenting in

part and concurring in the judgment.

_______

ARGUED: Marshall Hood Ellis, HORNTHAL,

RILEY, ELLIS & MALAND, LLP, Elizabeth City,

North Carolina, for Appellant. David A. Bragdon,

OFFICE OF THE UNITED STATES ATTORNEY,

Raleigh, North Carolina, for Appellee.

ON BRIEF: G. Norman Acker, III, Acting United

States Attorney, Jennifer P. May-Parker, Assistant

United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Raleigh, North Carolina, for

Appellee.

_______

OPINION

_______

NIEMEYER, Circuit Judge:

In this appeal, we determine the enforceability of

and the weight to be given the official commentary of

the Sentencing Guidelines.

And to make that

determination, we must consider whether we are

required to continue to apply the rules set forth in

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

held that Guidelines commentary, even when the

related Guideline is unambiguous, is authoritative

and therefore binding on courts unless the

commentary is inconsistent with law or the Guideline

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itself, id. at 38, 43, 44, or whether Stinson was

overruled by the Supreme Court’s recent decision in

Kisor v. Wilkie, 139 S. Ct. 2400 (2019), which limited

controlling deference to an executive agency’s

reasonable interpretation of its own regulations to

where “the regulation is genuinely ambiguous,” id. at

2415 (emphasis added).

Thus, under Stinson,

Guidelines commentary would be authoritative and

binding regardless of whether the Guideline to which

it is attached is ambiguous, whereas under Kisor,

Guidelines commentary would receive such deference

only if the Guideline is “genuinely ambiguous.” The

distinction is meaningful to federal courts’ continued

reliance on Guidelines commentary when sentencing

criminal defendants.

In the case before us, after Lenair Moses was

convicted of two counts of drug trafficking, the district

court sentenced him as a career offender under

U.S.S.G. § 4B1.1, based on two prior drug-trafficking

convictions. Moses argues, however, that the conduct

involved in one of the prior convictions that was

counted as a predicate was actually part of the same

course of conduct as his current offenses and therefore

should have been considered “relevant conduct” under

§ 1B1.3, rather than as part of his criminal history,

thereby resulting in a substantially lower Guidelines

sentencing range.

Application Note 5(C) to § 1B1.3, however, defines

the line between a defendant’s conduct involved in a

prior conviction and his relevant conduct, stating that

“conduct associated with a sentence that was imposed

prior to” the conduct of the instant offense “is not

considered” to be relevant conduct.

(Emphasis

added).

Therefore, if Application Note 5(C) is

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authoritative and binding, the conduct associated

with Moses’s prior offense — an offense for which he

was convicted and sentenced years before he

committed the instant offenses — was properly found

not to be conduct relevant to his current offenses.

Moses argues, however, that Kisor controls whether

Application Note 5(C) is binding and that when

Kisor’s limitations on deference are applied,

“Application Note 5(C) is not entitled to controlling

weight.” Accordingly, he contends that the district

court erred in relying on Application Note 5(C) to

sentence him as a career offender.

Upon consideration of the unique role served by the

Sentencing Commission and its Guidelines Manual

and a careful reading of both Stinson and Kisor, we

conclude that Kisor did not overrule Stinson’s

standard for the deference owed to Guidelines

commentary but instead applies in the context of an

executive agency’s interpretation of its own legislative

rules. While we recognize that our conclusion is not

shared by at least two circuits — see United States v.

Nasir, 17 F.4th 459, 469-72 (3d Cir. 2021) (en banc);

United States v. Riccardi, 989 F.3d 476, 484-86 (6th

Cir. 2021) — we believe that subjecting Guidelines

commentary to the Kisor framework would deny

courts the benefit of much of the Guidelines

commentary that both Congress and the Sentencing

Commission intended courts to apply when

sentencing defendants.

Indeed, the Guidelines

themselves state that the failure to follow commentary

could result in “an incorrect application of the

guidelines” and subject sentences to “possible reversal

on appeal.” U.S.S.G. § 1B1.7. Because we conclude

that Stinson continues to apply unaltered by Kisor

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and that Application Note 5(C) must be afforded

binding effect under Stinson, we also conclude that

the district court did not err in applying the careeroffender enhancement when calculating Moses’s

advisory Guidelines range. In addition, we reject

Moses’s alternative argument that the district court’s

downward variance sentence of 120 months’

imprisonment was substantively unreasonable.

Accordingly, we affirm the judgment of the district

court.

I

In October 2018, Lenair Moses sold $20 worth of

crack cocaine to a confidential informant in an “open

air drug market” in Raleigh, North Carolina. Six days

later, he again sold $20 worth of crack cocaine to a

confidential informant in the College Park area of

Raleigh. The total quantity of crack cocaine sold by

Moses in these transactions was 0.49 grams. Moses

pleaded guilty to two counts charging him with the

distribution of a quantity of cocaine base, in violation

of 21 U.S.C. § 841(a)(1).

In the presentence report prepared for Moses’s

sentencing, the probation officer determined that,

based on the quantity of drugs distributed, Moses’s

base offense level was 12. But concluding that Moses

qualified as a career offender under U.S.S.G.

§ 4B1.1(a), the probation officer increased his offense

level from 12 to 32. The two predicate convictions

identified for finding Moses to be a career offender

were (1) a 2009 North Carolina felony conviction for

possession with intent to sell or deliver cocaine and

(2) a 2013 North Carolina felony conviction for the

same offense. After reducing Moses’s offense level by

3 levels for his acceptance of responsibility, the

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probation officer reached a total offense level of 29. He

also determined that Moses had a criminal history

score of 23 based on his long record of prior

convictions, which included two juvenile adjudications

for making terroristic threats; a felony firearm

conviction; a felony conviction for engaging in a

robbery conspiracy; a misdemeanor conviction for

assault by pointing a gun; two other misdemeanor

convictions for simple assault; a felony conviction for

conspiracy to commit robbery with a dangerous

weapon; and a felony conviction for interfering with

an electronic monitoring device. Moses’s criminal

history score of 23 far exceeded the 13 criminal history

points necessary for Criminal History Category VI,

the maximum under the Guidelines. The combination

of an offense level of 29 and Criminal History

Category VI resulted in an advisory sentencing range

of 151 to 188 months’ imprisonment. Had Moses’s

offense level not been enhanced by his career-offender

status, however, the resulting sentencing range would

have been 21 to 27 months’ imprisonment.

Moses objected to the career-offender designation,

arguing that his 2013 North Carolina felony

conviction for possession with intent to sell or deliver

cocaine should not have been counted as a predicate

conviction for purposes of the career-offender

enhancement but rather that the conduct associated

with that prior conviction should have been taken as

“relevant conduct” to the instant offenses under

U.S.S.G. § 1B1.3, resulting in a much lower

sentencing range. He pointed to § 4B1.2(c), § 4A1.1,

and § 4A1.2(a)(1), arguing that those provisions,

taken together, require a prior predicate conviction to

have been “for conduct not part of the instant offense.”

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U.S.S.G. § 4A1.2(a)(1) (emphasis added). But, he

argued, the conduct associated with his 2013 drugtrafficking conviction did indeed constitute “part of

the instant offense” because it qualified as “relevant

conduct” under § 1B1.3, which provides that, for

certain types of offenses (including drug offenses),

relevant conduct includes conduct that was “part of

the same course of conduct or common scheme or plan

as the offense of conviction.” Id. § 1B1.3(a)(2); see also

id. § 4A1.2 cmt. n.1 (stating that “[c]onduct that is

part of the instant offense means conduct that is

relevant conduct to the instant offense under the

provisions of § 1B1.3”). In short, according to Moses,

“the conduct underlying the 2013 incident [was] ‘part

of the instant offense,’ and the sentence imposed for

that conduct . . . is not a ‘prior sentence’ that can be

“relied upon to enhance [his] sentence [as a career

offender] under § 4B1.1.”

Alternatively, Moses objected to the sentence

proposed in the presentence report on the ground that

it was substantively unreasonable, and he requested

a “substantial downward variance.” He pointed to

potential irregularities with his 2009 felony drug

conviction and argued that “no one should have to

spend 12+ years in prison for selling less than 1/2

gram of a controlled substance.”

The government argued that the probation officer

had properly counted Moses’s 2013 conviction as a

predicate conviction for career-offender status

because Moses had been convicted and sentenced for

the 2013 conduct well before he committed the instant

offenses and had indeed been incarcerated from

August 2014 through March 2018. It was not until

October 2018, seven months after his release, that he

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sold the cocaine involved in the instant convictions.

Based on this, the government argued that Moses’s

time in prison “between the 2013 offense and the

instant conduct in this case” meant that there was not

a “sufficient connection” for the two to be considered

as part of the same course of conduct or a common

scheme or plan. For support, it relied on Application

Note 5(C) to § 1B1.3, which states that “offense

conduct associated with a sentence that was imposed

prior to the acts or omissions constituting the instant

federal offense (the offense of conviction) is not

considered as part of the same course of conduct or

common scheme or plan as the offense of conviction.”

U.S.S.G. § 1B1.3 cmt. n.5(C) (emphasis added).

The government also opposed Moses’s request for a

downward variance, noting that Moses had continued

to commit crimes “despite serving at least two lengthy

prison sentences” in state custody. It argued that

Moses had shown “no remorse for his actions” and that

“only a significant criminal sentence will prevent him

from committing crimes in the future.”

At sentencing, the district court confirmed with

Moses’s counsel that his position was that the court

“should disregard [Application] Note 5(C).” But the

court then rejected that argument and concluded that

the 2013 conviction qualified as a prior predicate

conviction, rather than as relevant conduct. While the

court thus overruled Moses’s objection to his careeroffender status, it nonetheless imposed a downward

variant sentence of 120 months’ imprisonment,

stating that “[s]ome of the defendant’s arguments

resonate . . . as to why a variance should be imposed,”

including the “amount of the drug” involved in the

instant offenses.

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From the district court’s judgment dated

February 9, 2021, Moses filed this appeal, challenging

both the court’s reliance on Application Note 5(C) to

§ 1B1.3 in concluding that the career-offender

enhancement was applicable and the substantive

reasonableness of a 120-month sentence for

distributing one-half a gram of crack cocaine.

II

Moses contends that while the district court

concluded that his 2013 drug-trafficking conviction

was one of two predicate convictions that qualified

him as a career offender, that conviction was actually

based on conduct relevant to his current drugtrafficking convictions. Defining the line between

conduct constituting a prior conviction and conduct

relevant to the current offense, Application Note 5(C)

to U.S.S.G. § 1B1.3 states that “offense conduct

associated with a sentence that was imposed prior to

the acts or omissions constituting the instant federal

offense (the offense of conviction) is not considered as”

relevant conduct. (Emphasis added). If Application

Note 5(C) were binding, then Moses’s argument that

he does not qualify as a career offender would have to

be rejected, as both parties acknowledge.

But Moses urges us to conclude that the district

court erred in applying Application Note 5(C), relying

on the Supreme Court’s recent decision in Kisor,

which, he argues, “chang[ed] the analysis that Stinson

once gave us with respect to Guidelines commentary.”

He argues that under the Kisor deference standard,

Application Note 5(C) cannot be considered as

authoritative and that, as a result, his sentence must

be vacated and his case remanded to enable the

district court to determine, without applying

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Application Note 5(C), whether his 2013 conduct

qualifies as relevant conduct under § 1B1.3(a)(2).

Stinson, which was decided before Kisor, directly

addressed the enforceability of and weight to be given

Guidelines commentary, such as Application Note

5(C), recognizing that “commentary explains the

guidelines and provides concrete guidance as to how

even unambiguous guidelines are to be applied” in

sentencing criminal defendants. Stinson, 508 U.S. at

44 (emphasis added). It further observed that the

commentary provides “the most accurate indication[]

of how the [Sentencing] Commission deems that the

guidelines should be applied,” id. at 45, and it held

accordingly that, subject to some exceptions, the

commentary is “authoritative,” “binding,” and

“controlling,” id. at 38, 42-43, 45-47.

Kisor, on the other hand, addressed whether the

Court should overrule Auer v. Robbins, 519 U.S. 452

(1997), which had broadly authorized judicial

deference to an agency’s interpretation of its own

rules. Conducting its analysis against a backdrop of

concerns that executive agencies were using such rule

interpretations to circumvent the notice-andcomment procedures required by the Administrative

Procedure Act (“APA”), 5 U.S.C. § 553, the Kisor

Court nonetheless declined to overrule Auer. See

139 S. Ct. at 2408. The Court did, however, “cabin[]

Auer’s scope” with respect to the deference owed to an

agency’s interpretation of its own rules. Id. at 2418.

Specifically, the Court held that a “court should not

afford Auer deference unless the regulation is

genuinely ambiguous,” id. at 2415 (emphasis added),

and that even if a genuine ambiguity were found, the

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agency’s interpretation still “must come within the

zone of ambiguity,” id. at 2415-16.

Moses now contends that Kisor changed the analysis

that Stinson previously provided with respect to the

enforceability and weight of Guidelines commentary.

And when Kisor is applied here, he maintains,

Application Note 5(C) is not owed controlling

deference.

After considering the distinct contexts and actual

holdings of Stinson and Kisor, we conclude that even

though the two cases addressed analogous

circumstances, Stinson nonetheless continues to

apply when courts are addressing Guidelines

commentary, while Kisor applies when courts are

addressing executive agency interpretations of

legislative rules.

We begin with the recognition that Congress

enacted the Sentencing Reform Act of 1984, 18 U.S.C.

§ 3551 et seq., and 28 U.S.C. §§ 991-998, to replace “a

system of indeterminate sentencing” with one that

made “all sentences basically determinate.” Mistretta

v. United States, 488 U.S. 361, 363, 367 (1989). To

this end, Congress created the United States

Sentencing Commission “and charged it with the task

of ‘establish[ing] sentencing policies and practices for

the Federal criminal justice system.’”

Stinson,

508 U.S. at 40-41 (quoting 28 U.S.C. § 991(b)(1)). The

Commission was “established as an independent

commission in the judicial branch of the United

States,” with seven voting members, at least three of

whom must be federal judges, appointed by the

President with the advice and consent of the Senate,

28 U.S.C. § 991(a) (emphasis added), making it

“unquestionably . . . a peculiar institution within the

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framework of our Government,” Mistretta, 488 U.S. at

384. Congress charged the Commission with the task

of promulgating guidelines “for use of a sentencing

court in determining the sentence to be imposed in a

criminal case,” 28 U.S.C. § 994(a)(1), and directed

that the Commission’s guidelines “establish a

sentencing range” “for each category of offense

involving each category of defendant,” id. at

§ 994(b)(1). Congress also charged the Commission

with additional tasks, including, among others: (1) to

“establish sentencing policies and practices” that

“provide certainty and fairness . . . [and] avoid[]

unwarranted

sentencing

disparities

among

defendants with similar records who have been found

guilty of similar criminal conduct,” id. § 991(b)(1)(B);

(2) to “promulgate and distribute to all courts of the

United States . . . general policy statements regarding

application of the guidelines,” id. § 994(a)(2); and

(3) to “issue instructions to probation officers

concerning the application of Commission guidelines

and policy statements,” id. § 995(a)(10).

To fulfill the tasks assigned to it by Congress, the

Sentencing Commission promulgated and published

the “United States Sentencing Commission

Guidelines Manual,” the first version of which went

into effect on November 1, 1987. The Guidelines

Manual includes Guidelines, policy statements, and

official commentary, all of which are interrelated and

serve specific functions in fulfilling the Commission’s

designated tasks. Before the first Guidelines Manual

went into effect, a proposed version of it was published

in the Federal Register for public comment and

submitted to Congress for review. See Notice of

Sentencing Guidelines and Policy Statements for the

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United States Courts as submitted to Congress,

together with Certain Technical, Conforming, and

Clarifying

Amendments,

52 Fed. Reg.

18,046

(May 13, 1987); see also 28 U.S.C. § 994(x) (requiring

the Commission to comply with the notice-andcomment procedures of 5 U.S.C. § 553 with respect to

“the promulgation of guidelines”); id. § 994(p)

(requiring the Commission to submit “amendments to

the guidelines” to Congress). While the Commission

has taken the position that it can promulgate and

amend policy statements and official commentary, as

distinct from Guidelines, without using this noticeand-comment

and

congressional-submission

procedure, it nonetheless follows the practice of

providing, “to the extent practicable, comparable

opportunities for public input on proposed policy

statements

and

commentary

considered

in

conjunction with guideline amendments,” and it also

“endeavor[s] to include amendments to policy

statements and commentary in any submission of

guideline amendments to Congress.” United States

Sentencing Commission, Rules of Practice and

Procedure 6-7 (as amended Aug. 18, 2016). Thus, the

Commission, in practice, generally follows the same

process for adopting and amending policy statements

and commentary as it uses for the promulgation and

amendment of the Guidelines themselves.

Of particular relevance here, one of the

Commission’s original Guidelines — the text of which

remains unchanged from when it was first published

and submitted to Congress for review, see 52 Fed. Reg.

at 18,110 — addresses the “Significance of

Commentary,” providing that “[t]he Commentary that

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accompanies the guideline sections may serve” three

functions:

First, it may interpret the guideline or explain

how it is to be applied. Failure to follow such

commentary could constitute an incorrect

application of the guidelines, subjecting the

sentence to possible reversal on appeal.

Second, the commentary may suggest

circumstances which, in the view of the

Commission, may warrant departure from the

guidelines. Such commentary is to be treated as

the legal equivalent of a policy statement.

Finally, the commentary may provide

background information, including factors

considered in promulgating the guideline or

reasons underlying promulgation of the

guideline. As with a policy statement, such

commentary may provide guidance in assessing

the reasonableness of any departure from the

guidelines.

U.S.S.G. § 1B1.7 (emphasis added) (citation omitted).

Following the promulgation of the first Guidelines

Manual and as district judges around the country

began sentencing criminal defendants under the new

scheme, questions arose about the legal force of both

the policy statements and the official commentary. In

response, the Supreme Court held in Williams v.

United States, 503 U.S. 193 (1992), that “[w]here . . .

a policy statement prohibits a district court from

taking a specified action, the statement is an

authoritative guide to the meaning of the applicable

Guideline,” such that “[a]n error in interpreting such

a policy statement could lead to . . . an incorrect

application of the sentencing guidelines.” Id. at 201

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(emphasis added) (cleaned up). And about a year

later, the Court in Stinson held that its “holding in

Williams dealing with policy statements applies with

equal force to the commentary before us here.”

508 U.S. at 43 (emphasis added). The Court gave

several reasons for reaching that conclusion. It noted

that “[a]lthough the Sentencing Reform Act [did] not

in express terms authorize the issuance of

commentary,” that Act had been amended subsequent

to the promulgation of the first Guidelines Manual to

“refer to it.” Id. at 41 (citing 18 U.S.C. § 3553(b)(1)

(providing that “[i]n determining whether a

circumstance

was

adequately

taken

into

consideration [so as to preclude a departure], the court

shall consider only the sentencing guidelines, policy

statements, and official commentary of the Sentencing

Commission” (emphasis added))). The Court also

emphasized that § 1B1.7 provides for the use of

commentary and delineates the distinct “functions”

that “commentary may serve,” id., which includes

“explain[ing] the guidelines and provid[ing] concrete

guidance as to how even unambiguous guidelines are

to be applied in practice,” id. at 44. Moreover, the

Court recognized that “[a]ccording [a] measure of

controlling authority to the commentary is consistent

with the role the Sentencing Reform Act contemplates

for the Sentencing Commission.” Id. at 45.

In sum, the Sentencing Commission, as a unique

government institution located in the Third Branch,

promulgated the Guidelines Manual to guide and

cabin the sentencing discretion of individual district

judges.

And to address the multifarious

circumstances that can be relevant to each individual

defendant and statutory sentencing objectives, see

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28 U.S.C. § 994(a)(1), (2); § 994(c); and § 994(d), the

Guidelines Manual is structured with interrelated

layers of explanation consisting of Guidelines, policy

statements, and official commentary. In this context,

therefore, the policy statements and commentary are

especially meaningful in understanding the

Guidelines, regardless of whether any Guideline is

ambiguous. The only limitation to the binding effect

of commentary occurs, as the Supreme Court held,

when the commentary “violates the Constitution or a

federal statute, or is inconsistent with, or a plainly

erroneous reading of, [the] guideline.”

Stinson,

508 U.S. at 38. And it defined “inconsistent” strictly

such that it is generally understood to mean that

“following one will result in violating the dictates of

the other.” Id. at 43; see also United States v. Allen,

909 F.3d 671, 674 (4th Cir. 2018).

Over the years, district judges have routinely

consulted commentary to understand and apply the

Guidelines, and they never felt themselves restrained

in doing so by any notion that commentary was

binding only when the Guideline was ambiguous or

when the commentary purported to resolve a textual

ambiguity. Indeed, Stinson explicitly recognized that

commentary can be useful even when a Guideline is

“unambiguous.” 508 U.S. at 44. And the Stinson

Court’s deference to the particular commentary at

issue did not depend on a determination that it was a

reasonable interpretation of a genuine ambiguity. In

Stinson, the Guideline at issue was one that defined

the term “crime of violence” as including any felony

that “involves conduct that presents a serious

potential risk of physical injury to another.” Id. at 38

(quoting U.S.S.G. § 4B1.2(1) (Nov. 1992)). That term,

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however, was explained in an application note “not

[to] include the offense of unlawful possession of a

firearm by a felon.” Id. at 39 (quoting § 4B1.2 cmt.

n.2). In upholding “the commentary [as] a binding

interpretation of the phrase ‘crime of violence,’” the

Court “recognize[d] that the exclusion of the felon-inpossession offense from the definition of ‘crime of

violence’ may not be compelled by the guideline text.”

Id. at 47. But because the application note did “not

run afoul of the Constitution or a federal statute, and

it [was] not plainly erroneous or inconsistent with” the

Guideline, it was binding on the federal courts in their

calculation of defendants’ sentencing ranges. Id.

(cleaned up).

Unlike the formally published Guidelines Manual

that includes not only Guidelines and policy

statements but also official commentary, all three of

which were, in practice, generally promulgated by the

notice-and-comment and congressional-submission

procedure and which operate together as a reticulated

whole, executive agency interpretations have been

made more casually and broadly through, for

example, the issuance of letters, opinions, press

releases, and legal briefs without the notice-andcomment procedures of rulemaking. In addition,

while both the Sentencing Commission and an

executive agency are in a broad sense agencies, their

purposes and roles are quite distinct. The Sentencing

Commission is judicial in nature, and its Guidelines

Manual, including its policy statements and

commentary, is directed at providing guidance to

district judges tasked with the duty of imposing an

individualized sentence on a criminal defendant. See

United States v. Booker, 543 U.S. 220, 245 (2005). In

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contrast, the role of other federal agencies is typically

executive. Their interpretations seek not just to

inform and guide but also to regulate the broad range

of people covered by the particular agency’s

jurisdiction, and they do so without the express

authorization of Congress. These differences justify a

distinct approach in considering Guidelines

commentary, on the one hand, and an agency’s

interpretation of its legislative rules, on the other.

And treating the two differently is entirely consistent

with Kisor.

In Kisor, the issue presented to the Court was

whether it should overrule its prior decisions in Auer

and Bowles v. Seminole Rock & Sand Co., 325 U.S.

410, 414 (1945), both of which provided that agencies’

interpretations of their own rules should be given

controlling deference, even though the interpretations

did not go through the notice-and-comment procedure

that the APA requires for the promulgation of rules.

It was perceived by some that “Auer . . . [had]

obliterate[d] a distinction Congress thought vital and

supplie[d] agencies with a shortcut around the APA’s

required procedures for issuing and amending

substantive rules that bind the public with the full

force and effect of law.” Kisor, 139 S. Ct. at 2434

(Gorsuch, J., concurring in the judgment).

Nonetheless, the Kisor Court declined to overrule

Seminole Rock and Auer. But it did, understandably,

impose substantial restrictions on courts’ reliance on

agencies’ interpretations of their rules.

First, the Court held that “a court should not afford

Auer deference unless the regulation is genuinely

ambiguous” and that, “before concluding that a rule is

genuinely ambiguous, a court must exhaust all the

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traditional tools of construction” by “carefully

consider[ing] the text, structure, history, and purpose

of a regulation, in all the ways it would if it had no

agency to fall back on.” Kisor, 139 S. Ct. at 2415

(emphasis added) (cleaned up). Second, it held that

even where the regulation is found to be genuinely

ambiguous, “the agency’s reading must still be

reasonable,” meaning that “it must come within the

zone of ambiguity the court has identified after

employing all its interpretive tools.” Id. at 2415-16

(cleaned up). And third, it held that even if the agency

has reasonably read a genuinely ambiguous rule, a

court still “must make an independent inquiry into

whether the character and context of the agency

interpretation entitles it to controlling weight.” Id. at

2416.

It readily appears that Kisor, considered on its own

terms, does not apply to the Sentencing Commission’s

official commentary in the Guidelines Manual. While

the Court explicitly cabined the scope of deference

afforded by Seminole Rock and Auer, there is scant

suggestion in Kisor that the Court thought that those

cases applied to the enforceability of and weight to be

given to Guidelines commentary.* Nor did Stinson

itself so indicate. To be sure, the Stinson Court did

look at the Seminole Rock line of cases as providing a

*

We recognize that a footnote in the Kisor plurality opinion did

include a citation to Stinson as part of a string cite of 16 cases

supporting the proposition that the Court’s “pre-Auer[] decisions

applying Seminole Rock deference are legion.” 139 S. Ct. at 2411

n.3 (plurality opinion). But close consideration of Stinson shows,

as discussed herein, that while the Court drew from Seminole

Rock, it did not conclude that the doctrine applied to the official

commentary of the Guidelines.

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helpful “analogy” when it “articulate[d] the standard

that governs the decision whether particular

interpretive or explanatory commentary is binding.”

508 U.S. at 43-45. Yet, even while looking to those

cases in fashioning its standard, the Stinson Court

acknowledged that “the analogy is not precise,” id. at

44, and that became even clearer with the remainder

of the Court’s analysis.

Moreover, Kisor deference, as the Kisor Court

explained, comes into play only when agencies are

interpreting their regulations. But the Sentencing

Guidelines provide a broader role for commentary, as

recognized in Stinson. See 508 U.S. at 44. As the

Guidelines themselves provide, commentary was

provided not only to interpret Guidelines but also to

“explain how [they are] to be applied.” U.S.S.G.

§ 1B1.7 (emphasis added). And as the Stinson Court

explained, commentary “provides concrete guidance

as to how even unambiguous guidelines are to be

applied in practice,” 508 U.S. at 44, and it helps

ensure that each Guideline is applied in a manner

most “consistent with the Guidelines Manual as a

whole as well as the authorizing statute,” id. at 45; see

also Allen, 909 F.3d at 674 (“The Guidelines

necessarily are structured at a level of generality that

permits their application to the many varied facts and

circumstances presented in the sentencing process. In

this context, the commentary puts ‘flesh on the bones’

of the Guidelines” (citation omitted)). Indeed, the

commentary’s particularized role in this regard

supported Stinson’s holding that commentary is

authoritative and binding, regardless of whether the

Guideline is ambiguous, except when inconsistent

21a

with the Constitution, federal statute, or the

Guideline.

Taking the issue more broadly, a central

overarching purpose of the Sentencing Reform Act

and its creation of “an independent commission in the

judicial branch” was for that commission to “establish

sentencing policies and practices for the Federal

criminal justice system that . . . provide certainty and

fairness in meeting the purposes of sentencing” and

that “avoid[] unwarranted sentencing disparities

among defendants with similar records who have been

found guilty of similar criminal conduct.” 28 U.S.C.

§ 991(a), (b)(1)(B) (emphasis added).

And the

Sentencing Commission promulgated commentary

specifically to satisfy that purpose, relying on its

commentary to amplify and explain how the

Guidelines are to be applied. See U.S.S.G. § 1B1.7.

Were we now to relegate commentary to a status

where it could be considered only when the relevant

Guideline is genuinely ambiguous, we would negate

much of the Commission’s efforts in providing

commentary to fulfill its congressionally designated

mission. Doing so would impose such a burden on the

use of commentary that, in many cases, district judges

would be unable to consult it, thus denying them the

benefits of the substantive explanation that both

Congress and the Commission intended for them to

have.

In addition, the application of Kisor to

Guidelines commentary would undoubtedly lead to

substantial litigation and divisions of authority

regarding the extent to which each Guideline is

“genuinely ambiguous,” even after “all the traditional

tools of construction” have been “exhaust[ed].” Kisor,

139 S. Ct. at 2415 (cleaned up). The surely resulting

22a

circuit splits would substantially increase the extent

to which the advisory sentencing ranges for similarly

situated offenders would be calculated differently —

sometimes dramatically so — depending on the circuit

in which they were convicted. Such a result would

vitiate the core purpose of the Sentencing Reform Act.

Finally, it is noteworthy that Kisor did not purport

to overrule Stinson, and it is not our role to say it did.

See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)

(“Despite what [one circuit judge] aptly described as

[the] ‘infirmities, and . . . increasingly wobbly, motheaten foundations’ [of a prior Supreme Court

decision,] . . . [t]he Court of Appeals was correct in

applying [it] despite [its] disagreement with [the prior

decision], for it is this Court’s prerogative alone to

overrule one of its precedents” (emphasis added)

(cleaned up)); see also Payne v. Taslimi, 998 F.3d 648,

654 (4th Cir. 2021), cert. denied, No. 21-617, 2021

WL 5869448 (U.S. Dec. 13, 2021) (“[A]s an inferior

court, the Supreme Court’s precedents do constrain

us[,] . . . . [and] [i]t is beyond our power to disregard a

Supreme Court decision, even if we are sure the

Supreme Court is soon to overrule it”).

At bottom, we hold that Guidelines commentary is

authoritative and binding, regardless of whether the

relevant Guideline is ambiguous, except when the

commentary “violates the Constitution or a federal

statute, or is inconsistent with, or a plainly erroneous

reading of,” the Guideline. Stinson, 508 U.S. at 38.

And having concluded that Stinson continues to

provide “the standard that governs the decision

whether particular interpretive or explanatory

commentary is binding,” id. at 43, we readily conclude

23a

that Application Note 5(C) is owed controlling

deference.

While § 1B1.3(a)(2) specifies that, with respect to

certain offenses, including drug-trafficking offenses,

“all acts and omissions . . . that were part of the same

course of conduct or common scheme or plan as the

offense of conviction” are relevant conduct for

purposes of sentencing a defendant, Application Note

5(C) explains that “offense conduct [that was]

associated with a sentence that was imposed prior to

the acts or omissions constituting the instant federal

offense (the offense of conviction) is not considered as

part of the same course of conduct or common scheme

or plan as the offense of conviction.” U.S.S.G.

§ 1B1.3(a)(2) & cmt. n.5(C) (emphasis added).

Application Note 5(C) thus “provides concrete

guidance as to” § 1B1.3(a)(2)’s application and, in

particular, ensures that the relevant conduct

guideline is applied in a manner “consistent with the

Guidelines Manual as a whole.” Stinson, 508 U.S. at

44-45.

It certainly “does not run afoul of the

Constitution or a federal statute, and it is not plainly

erroneous or inconsistent with” § 1B1.3. Id. at 47

(cleaned up). As a result, Application Note 5(C)

authoritatively excludes from relevant conduct the

2013 conviction for which Moses had been sentenced

prior to the acts and omissions constituting his

offenses of conviction here. We therefore reject

Moses’s argument that the district court erred by

relying on Application Note 5(C) to § 1B1.3 when it

calculated his advisory sentencing range under the

Guidelines.

24a

III

Moses also contends that even if the district court

correctly calculated his advisory sentencing range as

151 to 188 months’ imprisonment, his 120-month

sentence of imprisonment was substantively

unreasonable given that the instant federal crimes for

which he was being sentenced involved his

distribution of “less than one-half of a gram of crack

cocaine.” He refers to language in Booker stating that

the Guideline system retains “a strong connection

between the sentence imposed and the offender’s real

conduct,” 543 U.S. at 246, and he argues that “[a]

sentence imposed through rote application of the

career offender enhancement has nothing to do with

an offender’s real conduct.” He also claims that the

career-offender enhancement has been the subject of

“serious criticism from courts and relevant

commentators over the years.”

The presentence report prepared for Moses’s

sentencing calculated his sentencing range, after

application of the career-offender enhancement of

§ 4B1.1, as 151 to 188 months’ imprisonment. At the

sentencing hearing, Moses objected vigorously to that

proposal as too severe for the conduct involved,

stating:

[A]t the end of the day, we’re talking about less

than a half gram of a drug, and . . . does that

really warrant over 12 years in prison? Our

position is it doesn’t, even with somebody with

a bad record. And we’re asking you to go below

that amount in sentencing him here today.

In asking the court for a downward variance, however,

Moses did not propose a specific sentence. Rather,

when asked by the court “where [he] [thought] the

25a

Court should go,” his counsel stated, “I leave that to

your discretion. Again, I’ve been careful about trying

not to put a number there because I’m not sure what

that number is, personally. But I think it’s less than

151, [and] I think it’s more than 30. And ultimately

I’ll leave that up to you and your wisdom.”

The district court agreed with Moses and granted

him a downward variance, stating, “what I’m thinking

about is the motion for downward variance premised

on the amount of the drug and the other arguments

the defendant raises with respect to the 2009

conviction.” The court then sentenced Moses to 120

months’ imprisonment, which, it said, was “sufficient

but not greater than necessary.”

Because the district court granted Moses precisely

what he requested, it is bold, perhaps even

inappropriate, for him now to ask us to conclude that

the district court abused its discretion by failing to

impose a greater variance. Yet, Moses does just that,

although he provides scant support for the argument.

In the Sentencing Reform Act, Congress specifically

directed the Sentencing Commission to ensure “that

the guidelines specify a sentence to a term of

imprisonment at or near the maximum term

authorized for categories of defendants in which the

defendant is” (1) at least 18 years old, (2) “has been

convicted of a felony that is” a crime of violence or a

controlled substance offense, and (3) “has previously

been convicted of two or more prior felonies” for a

crime of violence or a controlled substance offense.

28 U.S.C. § 994(h) (emphasis added). Of course, even

with that congressional directive, the district court

was also required to consider all of the § 3553(a)

sentencing factors in selecting a sentence “sufficient,

26a

but not greater than necessary, to comply with the

purposes” of sentencing, as articulated in the

Sentencing Reform Act. 18 U.S.C. § 3553(a).

In this case, the district court imposed a sentence

consistent with these statutory directives, specifically

taking into account, among other things, the

requirements for career-offender status, the small

quantity of crack cocaine involved in the instant

offenses, Moses’s arguments regarding his 2009

convictions, and his very serious criminal history.

After conducting an individualized assessment, the

court selected a sentence of imprisonment that was 31

months lower than the bottom of the advisory

guidelines range.

Given the level of deference that we owe to district

courts’ sentencing judgments and the presumption of

reasonableness that attaches to sentences within or

below the Guidelines’ advisory sentencing range, see

United States v. Susi, 674 F.3d 278, 289 (4th Cir.

2012), we cannot conclude that the district court

imposed a substantively unreasonable sentence here.

The judgment of the district court is accordingly

AFFIRMED.

27a

KING, Circuit Judge, dissenting in part and

concurring in the judgment:

I write separately to briefly explain my

disagreement with my friends of the panel majority in

this appeal.

On January 7, 2022, another panel of this Court

published a unanimous opinion in United States v.

Campbell, No. 20-4256 (4th Cir. Jan. 7, 2022),

authored by our good colleague Judge Motz. The legal

analysis of the panel majority in this case conflicts

with the Campbell precedent in concluding that the

Supreme Court’s decision in Kisor v. Wilkie, 139 S. Ct.

2400 (2019), is inapplicable. Crucially, no panel of

this Court is entitled to circumscribe or undermine an

earlier panel decision. See McMellon v. United States,

387 F.3d 329, 333 (4th Cir. 2004) (en banc) (“When

published panel opinions are in direct conflict on a

given issue, the earliest opinion controls, unless the

prior opinion has been overruled by an intervening

opinion from this court sitting en banc or the Supreme

Court”); see also United States v. Williams, 808 F.3d

253, 261 (4th Cir. 2015); Payne v. Taslimi, 998 F.3d

648, 654 (4th Cir. 2021). Moreover, I am entirely

persuaded of the correctness of the analysis set forth

by Judge Motz in the Campbell decision.

I therefore dissent from those aspects of the panel

majority’s opinion that conflict with Campbell.

Nevertheless, because I agree with the result reached

by the panel majority, I concur in the judgment.

28a

APPENDIX B

_________

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

_______

UNITED STATES OF AMERICA,

Plaintiff,

v.

LENAIR MOSES,

Defendant.

_______

Docket No. 5:19-cr-339

_______

New Bern, North Carolina

February 9, 2021

Sentencing

_______

TRANSCRIPT OF SENTENCING HEARING

BEFORE THE HONORABLE

LOUISE WOOD FLANAGAN

UNITED STATES DISTRICT JUDGE.

_______

APPEARANCES:

For the Plaintiffs: United States Attorneys’ Office

By: Aakash Singh

29a

150 Fayetteville Street, Suite

2100

Raleigh, NC 27601

(919) 856-4500

For the Defendant: Hornthal, Riley, Ellis & Maland

By: Marshall H. Ellis

301 East Main Street

Elizabeth City, NC 27909

(252) 335-0871

Court Reporter:

Tracy L. McGurk, RMR, CRR

413 Middle St.

New Bern, NC 28560

(419) 392-6626

Proceedings recorded by mechanical stenography,

transcript produced by notereading.

_______

(Commenced at 10:28 a.m.)

THE COURT: All right. Good morning again. Mr.

Moses comes before the Court for sentencing for the

crimes of distribution of crack cocaine on two separate

occasions. And we were together at some point

recently, and there was a desire to file more briefing,

and so the matter returns itself to the Court for

sentencing with benefit of the additional briefing of

the parties.

I note on the record your involvement in the crimes

at issue is detailed in the presentence report

describing circumstances in and around Raleigh,

North Carolina. Your criminal history started at the

age of 15, and there were many times you came to the

30a

attention of law enforcement at that fairly young age,

and it continues through your teenage years and into

your 20s and into your 30s. And you are in the highest

criminal history category with 23 points. That’s a lot

of points. There are other arrests on your record that

don’t influence the scoring, but they’re discussed.

Your family background is given to me, your health,

your education, your employment history, financial

circumstances.

Now, the probation office believes the total offense

level is a 29 and that the Court should be advised to

consider a sentence of between 151 to 188 months.

You face up to 20 years in prison. Your behavior can

be supervised, according to the statute, for between

three years to the rest of your life. The fine could be

as much as $1 million per count.

All right. When we got together in October of last

year, the government indicated it wanted an

opportunity to file a response to defendant’s

sentencing memorandum, particularly the arguments

advanced for a downward variance due to

circumstances surrounding the 2009 conviction. All

right.

And defendant filed a reply on -- the

government filed its response December 30th,

bringing to the Court’s attention the plea colloquy for

the 2009 conviction. And the defendant filed a reply

fairly recently relying upon correspondence with the

clerk of Wake County Superior Court.

All right. We’ll start with you, Mr. Ellis, and let me

hear you further on your arguments.

MR. ELLIS: Yes, ma’am. Obviously the first thing

I have done is try to argue that we don’t think he

should be treated as a career offender. I feel like I

31a

thoroughly briefed that at that point. You’re familiar

with my argument. I don’t want to belabor that.

In the alternative, though, we do think there are a

number of bases here that should result, will

hopefully result in a downward variance.

The first of those -THE COURT: So you’re saying I should disregard

Note 5C?

MR. ELLIS: That’s correct, Your Honor. Yes,

ma’am. I think that’s the only way that I could get

you to agree with me that he’s not a career offender.

THE COURT: And a lot of what you’ve argued is

going to return under 3553.

But let me go to the government now. Do you agree

I should ignore Note 5C.

MR. SINGH: Your Honor, we do not agree that you

should ignore that. We believe that -- if I may just

pull this up, Your Honor. We believe that the

defendant is a career offender and that there is

evidence to show that for a number of reasons, Your

Honor, outside of the fact that there are the requisite

convictions that are outlined by the sentencing

guidelines that have been met here. As Your Honor

pointed out -- so that’s first and foremost, the

definitional criteria for career offender is met.

On top of that, as Your Honor mentioned, the

defendant’s first criminal conviction came in 1998.

The defendant was 15 years old at that time. The

offense conduct that we’re here for today occurred in

2018. That was 20 years later, and the defendant was

age 35 at the time it occurred. In between 1998 and

2018, as outlined in the presentence report, the

32a

defendant acquired on at least 20 separate occasions

a criminal conviction of either a misdemeanor or

felony category. That’s 20. Which means that if you

were to average that out, the defendant sustained a

criminal conviction once for every year between his

first conviction and this most recent one that we’re

here for today. So the government would argue, Your

Honor, that first, the defendant meets the criteria of

a career offender based on the criteria outlined in the

guideline, but even as a more commonplace

understanding of what a career and offender are, the

defendant certainly meets the common sense

definitions of a career offender. He has maintained a

career of criminality.

I would also note, Your Honor, that in addition to

four convictions in the defendant’s record for

distribution related crimes of narcotics, there are also

three other significant crimes that I would like to

bring to your attention. There’s a conspiracy to

commit robbery with a dangerous weapon; that’s one

of the convictions that was at issue with the

defendant’s memo. That is paragraph 24 of the

presentence report, Your Honor. And I think that this

conspiracy with robbery with a dangerous weapon

conviction is significant for this Court’s attention

because it resulted in the murder of an individual by

the name of Charmeka Harris. That’s also outlined in

the presentence report.

Additionally, Your Honor, the defendant sustained

a conviction for a robbery conspiracy in Pennsylvania

sometime prior to the 2008 conviction I just

mentioned.

33a

Finally, before that, Your Honor, the defendant had

a conviction in Pennsylvania for what they’ve referred

to as possession of firearms without a license.

In addition to the four drug distribution counts that

are identified in the presentence report as well as

these violent crimes I mentioned, the defendant also

has three separate convictions for assault or assaultrelated convictions. One in particular is an assault by

pointing gun conviction which enhances the level of

violence, obviously, that the defendant has regularly

portrayed.

Finally, Your Honor, I would turn your attention to

paragraphs 32 and 33 of the presentence report.

Paragraph -- I’m sorry; I meant to say paragraph 33

and 36, I believe. My own handwriting is terrible.

Paragraph 36 indicates that the defendant

committed the instant offense while serving a

criminal justice sentence. This is significant, Your

Honor, as paragraph 33 indicates that his most recent

conviction prior to the instant offense was a conviction

for interference with electronic monitoring.

In

addition to the significance of such a conviction, the

defendant sustained two supervision violations while

serving the sentence for interference with electronic

monitoring.

Finally, Your Honor, for your consideration,

paragraph 29 of the presentence report which

indicates the defendant sustained probation

violations for possession with the intent to sell or

distribute, the nature of such of these violations

including engaging in new criminal conduct.

So, Your Honor, I’ll be clear; I’m not the attorney

that charged this case. I have reviewed the materials,

34a

and I’ve looked at the presentence report, and I think

it is extremely clear that the defendant has

consistently engaged in a pattern of criminal behavior

from the age of 15 in the year 1998. He has escalated

the severity and significance of those crimes over

time. These crimes have not occurred in a vacuum;

these crimes have resulted in victims, real victims,

victims who are not here before the Court to testify

because they are no longer alive. There are narcotics

that have consistently been pushed into the

community as a result of the defendant’s actions.

This is not a defendant who is shown or has

indicated in any way whatsoever that he intends to

turn his life around. There are consistent indications

that at times he’s been on supervision he has not

taken advantage of that opportunity. He has violated.

He’s been revoked. He’s been before state court many

times.

So, Your Honor, the defendant is certainly a career

offender. The defendant has made a career of

committing crimes not only in the Eastern District of

North Carolina, but also in the state of Pennsylvania.

He’s been given opportunities. And the significant

violent nature of his record as well as the consistent

pattern of drug distribution warrants a sentence that

promotes respect for the law, that adequately deters

like behavior and plainly protects the community

from further crimes of this defendant.

And

accordingly, Your Honor, the government would

respectfully recommend a sentence toward the top of

the guidelines for this very significant record. Thank

you, Your Honor.

THE COURT: Okay. Thank you. I’ll hear further

from you, Mr. Ellis.

35a

MR. ELLIS:

Yes, ma’am.

Regarding the

government’s argument about his career offender

status, to me what I just heard right then is Mr. Moses

has a bad record. I think that would be the way I

would summarize what I just heard. And I want to be

really clear today. We’re not sitting here arguing that

he has a good record by any stretch of the imagination.

We’re arguing a few distinct things that have nothing

to do with that, quite frankly, in our opinion.

One is whether he meets the legal definition of

career offender under the guidelines. Then second,

what ultimately is the sentence that’s sufficient but

not greater than necessary to serve the goals of

sentencing here.

And when you answer that question, as the Court’s

well aware, you’re looking at a number of factors

under 3553(a). One of which is, indeed, his history

and characteristics, but another of which are the

nature and circumstances of this case.

This case, Your Honor, involves 0.49 grams of a

controlled substance. I realize that’s illegal. He pled

guilty to it. He accepted responsibility. He has to be

punished for it. The question for us here today,

though, is ultimately what is the appropriate amount

of punishment for that conduct? I realize his record

does play a part in that. We know that. We know that

he’s going to get more than 24 to 30 months here

today. We’re not saying that’s not the right result. We

are very much standing on the position though that

151 months is entirely more than necessary to serve

the goals of sentencing in this case.

When you look at -- obviously spoke about the nature

and circumstances of this offense, but I do want to

touch on a couple things about his history and

36a

characteristics. And I know the COURT did get a

couple of character letters from him that we

submitted last week, and they do speak highly of Mr.

Moses, and there is hope for him, and that there is a

chance for him.

He has had jobs in the past, as the presentence

report outlines. He had a job at the time this

happened. Now, obviously he’s got to do better about

keeping a job and working towards supporting his

family.

Family, on that note, is important to him. His

mother is here today to support him. She drove down

to be here. And he has children that he cares about

greatly and wants to be there for them.

Now, all that said, again, he knows that he’s done a

lot of wrong in his life and that his record is not

exemplary by any stretch of the imagination. He’s

prepared to tell you that himself here in a minute.

Once again, at the end of the day, we’re talking

about less than a half gram of a drug, and the does

that really warrant over 12 years in prison? Our

position is it doesn’t, even with somebody with a bad

record. And we’re asking you to go below that amount

in sentencing him here today.

THE COURT: Where do you think the Court should

go?

MR. ELLIS: I leave that to your discretion. Again,

I’ve been careful about trying not to put a number

there because I’m not sure what that number is,

personally. But I think it’s less than 151, but I think

it’s more than 30. And ultimately I’ll leave that up to

you and your wisdom.

37a

THE COURT: Well, he meets the legal definition of

a career offender. I’m specifically overruling the

defendant’s objection, which would also address the

argument that the 2013 conviction constitutes

conduct that’s part of the instant offense. It doesn’t.

It paints a picture of someone going back to the same

community after a term of incarceration and doing the

same thing, selling drugs. But just because the

offenses involve the sale of crack cocaine in the same

neighborhood, that doesn’t mean he was engaging in

a common scheme or single spree.

So if I had sustained the objection, the advice would,

as you say, be very dramatically different. The advice

I would receive is a sentence of no more than 30

months. And as defendant himself acknowledges,

that’s not a sentence that’s sufficient.

But there is one, you argue, that is less than 151

months. And so that’s what I’m thinking about is the

motion for downward variance premised on the

amount of the drug and the other arguments the

defendant raises with respect to the 2009 conviction.

Right?

So you’re saying there’s no evidence the defendant

received and reviewed discovery about the drug

offense that was the subject of that case.

MR. ELLIS: That’s correct, Your Honor.

THE COURT: And that conviction is wrapped up in

a guilty plea for a much more serious offense. So it’s

sort of an afterthought.

MR. ELLIS: Yes, Your Honor.

THE COURT: Does the government want to be

heard further on that?

38a

MR. SINGH: Very briefly, Your Honor. Thank you.

Your Honor, my understanding is one of the pieces of

exhibits that was provided to the Court and defense

as part of the government’s brief was the transcript

from the plea, as Your Honor mentioned, the plea

colloquy in state court. Your Honor, I would bring

your attention to page 11, line 23 of said transcript in

which the state -- the defendant’s counsel for his state

case advised to the effect that he did receive the

discovery in the case at issue.

I would also point to page 10, line 22 in which the

assistant district attorney provides a factual basis for

the robbery conviction as well as the drug conviction.

At that point the judge in the state case asked defense

counsel to be -- if he wants to be heard on the record,

to which defense counsel responds, “Not on the facts,

Your Honor.”

I would also note, Your Honor, that soon thereafter

on the same transcript the defense counsel asks the

judge to “accept the plea agreement and give him that

sentence,” and that was in relation to a 32 to 48 month

agreed-upon sentence as part of that plea deal for the

robbery conspiracy with the drug conviction.

So I think, Your Honor, there’s enough on the record

to show that the defendant knew what he was

pleading to. It seems that based on the record that

the discovery was provided, that he was aware of what

he pled to; it was discussed on the record.

And I would just say, Your Honor, as to the point

about the relatively low drug weight, I think where

charging documents indicate a specific threshold drug

amount, then that corresponds with the punishment

sought in that case. And here it corresponds with how

the charging was done. The defendant committed the

39a

violation that was alleged. The weight of it I

understand can be a significant factor in determining

the appropriate punishment, but the extent of the

defendant’s criminal activity as it pertains to crack

distribution is something that I see he has priors for

dating back to 2008. It’s something that he’s done to

sustain his livelihood, and he has done so without

considering the effect on his neighbors and others in

the community. And so the small amount does not

change the fact that he was, in fact, doing it and that

it had a negative effect and that it was illegal and that

he knew it to be illegal at the time.

THE COURT: Do you have and address of the

matters set forth in the defendant’s reply and his

discussion with the clerk?

MR. SINGH: Your Honor, I’m sorry?

THE COURT: Have you read the reply?

MR. SINGH: Have I read it? Yes, Your Honor. I’ve

read it based on what AUSA Sandling had sent me,

and I’ve reviewed her notes and the brief. I’d have to

review some things for specific questions, but I’m

generally familiar, Your Honor.

THE COURT: Well, do you want to amplify on what

you’ve brought to my attention in the reply?

MR. ELLIS: Yes, Your Honor. Thank you. Once

again, to their response that he received discovery

concerning -- or I should say that the transcript shows

he received discovery concerning those drug offenses,

that it just doesn’t tell the whole story. Once again,

Mr. Kelly, George Kelly, who I spoke with at length

about this leading up to today and even prior to that

in October, maintains that he was never appointed to

represent Mr. Moses on those drug charges, and he

40a

was solely appointed to represent him on the murder

charge. And once he got the favorable plea offer to

plead down the murder charge to conspiracy to

commit a robbery, it was further conditioned that Mr.

Moses plead guilty to those drug charges when he

didn’t really know anything about them. But again,

as I explained in the reply, it was something that

didn’t matter to him at the time, so he was advised to

take it. He did take it. He pled guilty and was

sentenced to that largely because of the robbery

conviction and not anything to do with the drugs.

You’re familiar with my argument, I can tell. Thank

you.

THE COURT:

anything?

Does your client want to say

MR. ELLIS: He does, Your Honor.

THE DEFENDANT: Your Honor, I can’t say that I

had a good run coming up, you know, as my record

shows. I broke the law. I apologize. I’m an

embarrassment to my family. There’s certain things

I can’t do with my kids because of my actions. But

there’s nothing I can really say that may sway your

judgment today. My record speaks for itself. But all

I can say, I tried, tried to do what I can for my kids,

Your Honor.

THE COURT: Well, you’ve got to try differently

when you get out of prison. So you’ve got to try in

ways that are legal, and you’ve got to think about who

you associate with. And I’m sure you have been a

great disappointment to your mother.

So what are you going to do when you get out of

prison this time to not disappoint your family and to

be successful on your end?

41a

THE DEFENDANT: I’ll do more with my family.

THE COURT: Pull that microphone in front of you.

What are you going to do to make a living legally?

THE DEFENDANT: I’ll go back to my moving job

that I had when I came in. Like, I was taking care of

my kids when I was out there, going to work every

day, taking care of my kids. I made a mistake. I can’t

change it. But -THE COURT: Okay. So you were moving. Were

you being -- were taxes being withheld from your

wages, or were you receiving the money under the

table?

THE DEFENDANT: I was getting paid cash every

day.

THE COURT: Okay. Well, so you need to think

about a job that has maybe more of -- more benefits

than that, more of a future. What are you interested

in doing?

THE DEFENDANT: I want to own a food truck.

THE COURT: Food what?

THE DEFENDANT: I want to own a food truck.

THE COURT: You want to own a food truck. Okay.

So you want to work in the food industry?

THE DEFENDANT: Yeah.

THE COURT: Did you graduate from high school?

THE DEFENDANT: Yes.

THE COURT: Okay. Have you had any courses

after high school in any subject?

THE DEFENDANT: Not really.

THE COURT: No? Okay. Well, I suggest you work

for somebody who has a food truck and learn the

42a

business before you go off and try to do it on your own.

But that might be a very good career. And a moving

job too, but being paid cash and not having regular

hours, not having the potential for insurance or -- you

know, you need to think about that, don’t you?

THE DEFENDANT: I was getting regular hours. I

just didn’t have a bank account, though, where I was

getting the actual taxes coming out of my check.

THE COURT: And you were selling drugs at the

same time?

THE DEFENDANT: No.

THE COURT: No? Okay. Where are you going to

live when you get out?

THE DEFENDANT: Probably with my mother.

THE COURT: Okay. And you know you’re going to

have to pick different friends?

THE DEFENDANT: Yeah.

THE COURT: What else do you think you need to

change?

THE DEFENDANT:

altogether.

Change my environment

THE COURT: So is it a good idea to go live with

your mother?

THE DEFENDANT: The environment where I

caught my crime at, my mother does not stay nowhere

near it.

THE COURT: Okay.

THE DEFENDANT: I was going out of my way to

go commit crimes, then go back home.

43a

THE COURT: Okay. Anything else you need to

change or not change that is going to be important to

your success when you get out of prison?

THE DEFENDANT: I just need to change my whole

outlook on life, period. I’ve got to do what’s best for

me and my family.

THE COURT: Because you’re no good to them going

to prison. And they might want you to buy things; you

might feel like you need to. But if you’re buying things

for them with drug money, those are things that they

shouldn’t have. When you get out of prison, you’ve got

to look out for yourself to be any good for them. Right?

THE DEFENDANT: Yeah.

THE COURT: Right. Okay. Well, it’s a sad set of

circumstances here. I do think there’s basis for some

variance below 151 months. I’m going to sentence you

to 120 months. I think a ten-year sentence is

sufficient but not greater than necessary. That’s 120

months on Counts One and Two to be served together.

And three years of supervised release when you get

out of prison.

Some of the defendant’s arguments resonate with

the Court as to why a variance should be imposed, and

relating to circumstances concerning the 2009

conviction, and circumstances of the instant offense.

You can’t break any law during those three years of

supervised release that you’re going to serve when you

get out of prison. And you can’t possess a weapon, and

you can’t possess drugs. Any question about that?

THE DEFENDANT: No, Your Honor.

THE COURT: There are some other standard

conditions and some special ones. For you, drug

44a

treatment and testing, consenting to warrantless

searches, cooperate in the collection of DNA. You’ve

got a lot of children you need to support. And I want

you to provide regular reports about your efforts to get

a job and keep a job when you get out of prison.

There’s a $200 special assessment.

I’m not going to impose a fine.

I’m not going to deny you federal benefits.

In prison I want you to have the most intensive

treatment program for addiction or dependency, and I

also want you to get further education and vocational

training. And I want you to get some mental health

treatment to help you make some better decisions and

think about the consequences of your actions. I think

you need to talk to somebody to get some help on that

too.

I recommend Butner, if that’s what you’d like. And

is that what he would like?

MR. ELLIS: Thank you, Your Honor.

THE COURT: No guarantee that’s where you’ll go.

If you don’t get there the first time, as your sentence

gets closer and closer to being finished, they’ll move

you closer and closer to home.

You’ll get good behavior time if you behave well in

prison. Did you know that?

THE DEFENDANT: Yes.

THE COURT: You can get close to two months a

year off the sentence. And you’ll get credit for time

served.

All right. I’ll tell you how you can appeal in a

minute. Anything further for your client?

45a

MR. ELLIS: No, Your Honor. Thank you.

THE COURT: For your client?

MR. SINGH: Nothing, Your Honor. Thank you.

THE COURT:

probation office?

Thank you.

Anything from the

THE PROBATION OFFICER: No, Your Honor.

THE COURT: You can appeal if you think, Mr.

Moses, there’s something really wrong with the

sentence or conviction, but you do need to move

quickly. A defendant usually only has 14 days to do

that. If you can’t afford the cost of an appeal, you can

apply for permission to appeal for free. And if you

request, the clerk will fill out the appeal paperwork

for you.

Any questions, sir, about the judgment, what I

expect, or your appeal rights?

THE DEFENDANT: No, Your Honor.

THE COURT: Okay. Good. I’ll put you back in the

custody of the Marshal’s Service. Thank you all.

MR. ELLIS: Thank you Your Honor.

MR. SINGH: Thank you.

THE COURT: And good luck, Mr. Ellis, in your new

position.

MR. ELLIS: Thank you, Your Honor.

(Concluded at 10:56 a.m.)

- - -

46a

CERTIFICATE

I certify that the foregoing is a correct transcript

from the record of proceedings in the above-entitled

matter.

/s/ Tracy L. McGurk

4/14/2021

Tracy L. McGurk, RMR, CRR

Date

47a

APPENDIX C

_________

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______

No. 21-4067

(5:19-cr-00339-FL-1)

_______

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LENAIR MOSES, A/K/A BONES,

Defendant-Appellant.

_______

NEW CIVIL LIBERTIES ALLIANCE,

Amicus Supporting Rehearing Petition.

_______

Filed: March 23, 2022

_______

ORDER

_______

The court denies the petition for rehearing en banc.

A requested poll of the court failed to produce a

majority of judges in regular active service and not

48a

disqualified who voted in favor of rehearing en banc.

Chief Judge Gregory, Judge Motz, Judge King, Judge

Wynn, and Judge Thacker voted to grant rehearing en

banc. Judge Wilkinson, Judge Niemeyer, Judge Agee,

Judge Diaz, Judge Harris, Judge Richardson, Judge

Quattlebaum, Judge Rushing, and Judge Heytens

voted to deny rehearing en banc.

The court further denies the motion for rehearing

before the panel. Judge Niemeyer and Judge Cullen

voted to deny panel rehearing, and Judge King voted

to grant panel rehearing.

Judge Niemeyer wrote an opinion supporting the

denial of rehearing en banc. Judge Motz wrote an

opinion dissenting from the denial of rehearing en

banc and voting to grant rehearing en banc, in which

Judges King, Wynn, and Thacker joined. Judge Wynn

wrote an opinion voting to grant rehearing en banc, in

which Judges Motz, King, and Thacker joined.

Entered at the direction of Judge Niemeyer.

For the Court

/s/ Patricia S. Connor, Clerk

49a

NIEMEYER, Circuit Judge, supporting the denial of

rehearing en banc:

At the root of this case lies the question of whether

the Supreme Court’s decision in Kisor v. Wilkie,

139 S. Ct. 2400 (2019), overruled its earlier decision

in Stinson v. United States, 508 U.S. 36 (1993), for

determining the enforceability of and weight to be

given the official commentary of the Sentencing

Guidelines.

Stinson held that Guidelines

commentary, even when the related Guideline is

unambiguous, is authoritative and binding on courts,

unless the commentary is inconsistent with law or the

Guideline itself. Id. at 38, 43, 44. Kisor, on the other

hand, limited controlling deference to an executive

agency’s reasonable interpretation of its own

regulations to where “the regulation is genuinely

ambiguous.” 139 S. Ct. at 2415 (emphasis added).

Thus, under Stinson, Guidelines commentary would

be authoritative and binding regardless of whether

the Guideline to which it is attached is ambiguous,

whereas under Kisor, Guidelines commentary would

receive such deference only if the Guideline were

“genuinely ambiguous.” The distinction is meaningful

to federal courts’ continuing reliance on Guidelines

commentary when sentencing criminal defendants.

The panel concluded that until the Supreme Court

expresses its view on the point, we should not hold

that the Court has overruled one of its earlier

opinions, recognizing the Court’s instruction that “it

is this Court’s prerogative alone to overrule one of its

precedents.” State Oil Co. v. Khan, 522 U.S. 3, 20

(1997); see also Payne v. Taslimi, 998 F.3d 648, 654

(4th Cir. 2021) (“It is beyond our power to disregard a

Supreme Court decision, even if we are sure the

50a

Supreme Court is soon to overrule it”), cert. denied,

142 S. Ct. 716 (2021).

Accordingly, the panel

concluded that in determining the enforceability of

and weight to be given Guidelines commentary —

which was the precise issue before the Court in

Stinson, but not in Kisor — we should continue to

apply Stinson.

While this case was pending in this court and the

panel opinion was being prepared, another case,

United States v. Campbell, 22 F.4th 438 (4th Cir.

2022), was also pending before another panel as the

opinion was being prepared. The opinion in Campbell,

however, was filed several days before the opinion in

this case.

Campbell held that a prior conviction for a

“controlled substance offense,” as that term is defined

in U.S.S.G. § 4B1.2(b), does not include a conviction

for “attempting to commit such [an] offense[],” as

stated in the commentary to that Guideline. U.S.S.G.

§ 4B1.2 cmt. n.1 (emphasis added).

The court

concluded that the commentary was “plainly”

inconsistent with the Guideline because “an attempt

offense . . . is not a ‘controlled substance offense,’” as

the latter is defined in the Guideline itself. Campbell,

22 F.4th at 444. Applying the guidance of Stinson

“that commentary to the Sentencing Guidelines `is

authoritative unless it . . . is inconsistent with . . .

[the] guideline,’“ the court therefore held that the

commentary before it was unenforceable.

Id.

(emphasis added) (quoting Stinson, 508 U.S. at 38).

The Campbell court also provided additional but

conditional support to its holding, stating that “if

there were any doubt that under Stinson the plain text

requires this result,” then Kisor would also support it,

51a

id. (emphasis added), as the Kisor Court held that a

court is not to afford controlling deference to an

agency’s interpretation of its own regulation unless

the regulation is found to be “genuinely ambiguous

after exhausting all the traditional tools of

construction,” id. at 445 (cleaned up) (quoting Kisor,

139 S. Ct. at 2415). Considering those traditional

tools, the Campbell court found that the Guideline

unambiguously excluded attempt offenses. Id. As a

result, there was no need to explore the conflict

between Stinson and Kisor, and it was not explored.

In his dissent from the panel opinion in this case,

Judge King stated,

The legal analysis of the panel majority in this

case conflicts with the Campbell precedent in

concluding that the Supreme Court’s decision

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

inapplicable. Crucially, no panel of this Court

is entitled to circumscribe or undermine an

earlier panel decision. See McMellon v. United

States, 387 F.3d 329, 333 (4th Cir. 2004) (en

banc).

23 F.4th 347, 359 (4th Cir. 2022) (King, J., dissenting

in part and concurring in the judgment) (emphasis

added). The McMellon court, however, held more

narrowly that “when there is an irreconcilable conflict

between opinions issued by three judge panels of this

court, the first case to decide the issue is the one that

must be followed, unless and until it is overruled by

this court sitting en banc or by the Supreme Court.”

387 F.3d at 334 (emphasis added).

While there is some tension between the analyses in

the two opinions relating to the reach of Kisor, there

is a legitimate question about whether the panel

52a

opinion here is in “irreconcilable conflict” with

Campbell. Campbell, after all, relied only on Stinson

for its holding — reasoning that its conclusion was

“require[d]” by Stinson, 22 F.4th at 444 — as did the

panel in this case, and Campbell’s discussion of Kisor

was not only conditional but was given because Kisor’s

application would lead to the same result. Campbell

did not address, nor did it need to address, the tension

between Stinson and Kisor, even as it relied on

Stinson. In this case, the panel did explore the

tension, holding that Stinson continues to apply.

I submit therefore that whether there is an

irreconcilable conflict between this case and Campbell

is both an open and a debatable question, as it does

not appear that resolution of the tension would alter

the outcomes, as both cases applied Stinson. Thus,

the tension between this case and Campbell would be

better addressed in a future case where the issue

becomes meaningful to that case’s disposition. In the

meantime, we would welcome the Supreme Court’s

advice on whether Stinson or Kisor controls the

enforceability of and weight to be given Guidelines

commentary, an issue that could have far-reaching

results. But for now, I believe it wise to postpone

addressing the issue until it is presented to us directly

in a future case. Therefore, I vote against rehearing

this case en banc.

53a

DIANA GRIBBON MOTZ, Circuit Judge, with whom

Judges KING, WYNN and THACKER join, dissenting

from the denial of rehearing en banc and voting to

grant rehearing en banc:

I respectfully dissent from the denial of rehearing en

banc and vote to grant rehearing en banc. As Judge

King correctly noted in his dissent from the panel

opinion, a central holding in this case — that Kisor v.

Wilkie, 139 S. Ct. 2400 (2019), does not apply to the

Sentencing Guidelines’ Commentary — directly

conflicts with an earlier panel opinion of our court,

United States v. Campbell, 22 F.4th 438 (4th Cir.

2022). I continue to believe that Campbell was

correctly decided, but merits aside, resolving intracircuit conflicts is a quintessentially proper basis for

en banc rehearing. See Fed. R. App. P. 35(b)(1)(A). I

fear the court’s failure to resolve this conflict now

risks stoking confusion over the state of our

precedent.

Absent resolution via en banc rehearing, it is worth

remembering that the en banc court (with only a

single judge dissenting on the question) has long

expressly held that “[w]hen published panel opinions

are in direct conflict on a given issue, the earliest

opinion controls, unless the prior opinion has been

overruled by an intervening opinion from this court

sitting en banc or the Supreme Court.” McMellon v.

United States, 387 F.3d 329, 333 (4th Cir. 2004) (en

banc) (emphasis added). That remains the law. See,

e.g., United States v. Runyon, 994 F.3d 192, 201

(4th Cir. 2021) (Niemeyer, J.) (relying on McMellon to

reject litigant’s request to overturn panel precedent).

Campbell was argued, decided, and published before

Moses. The two cases are in direct and irreconcilable

54a

conflict on a given issue, i.e., whether Kisor applies to

the Commentary to the Sentencing Guidelines. 1

Compare Campbell, 22 F.4th at 444 (holding that

Kisor v. Wilkie applies to the Commentary), with

Moses, 23 F.4th at 349 (“Stinson continues to apply

unaltered by Kisor.”).

And contrary to Judge

Niemeyer’s suggestion that Campbell’s discussion of

Kisor is dicta; in fact Campbell’s discussion of Kisor is

an alternative holding. See Campbell, 22 F.4th at 444

(noting that if there is “doubt” as to the correctness of

our holding “under Stinson,” Kisor “renders this

conclusion indisputable.”). “[A]lternative holdings are

not dicta.” Gestamp South Carolina, LLC v. NLRB,

769 F.3d 254, 262 n.4 (4th Cir. 2014). Thus, under our

well-established en banc precedent in McMellon,

unless and until the Supreme Court or this court

sitting en banc say otherwise, the panel opinion in the

case that is first argued, decided, and published

controls. Campbell is that opinion.

1

Judge Niemeyer places great emphasis on McMellon’s use of

the word “irreconcilable.” See ante at *5. A glance at McMellon

reveals that we there used “irreconcilable conflict” and “direct

conflict” interchangeably. See 387 F.3d at 333-34. In any case,

it is quite clear that Campbell and Moses are directly and

irreconcilably in conflict on an issue at the heart of each case.

55a

WYNN, Circuit Judge, with whom Judges MOTZ,

KING, and THACKER join, voting to grant rehearing

en banc:1

To the extent that there is an irreconcilable conflict

between our opinions in United States v. Campbell,

22 F.4th 438 (4th Cir. 2022), and United States v.

Moses, 23 F.4th 347 (4th Cir. 2022), we all agree that

Campbell, as the earlier published opinion, must

control. See McMellon v. United States, 387 F.3d 329,

333 (4th Cir. 2004) (en banc) (“When published panel

opinions are in direct conflict on a given issue, the

earliest opinion controls, unless the prior opinion has

been overruled by an intervening opinion from this

court sitting en banc or the Supreme Court.”).

Our disagreement stems over the proper use of

Federal Rule of Appellate Procedure 35. That rule

could not be clearer: an en banc hearing is “not

favored and ordinarily will not be ordered unless” “en

banc consideration is necessary to secure or maintain

uniformity of the court’s decisions” or “the proceeding

involves a question of exceptional importance.”

Fed. R. App. P. 35(a) (emphasis added). Both factors

are unquestionably present in the instant case.

To start, the majority opinion in Moses—decided

January 19, 2022—flatly contradicts our earlier

circuit precedent in Campbell—decided January 7,

1

A majority of this Court’s fourteen active judges vote to

summarily deny, without opinion, to rehear this matter en banc.

The one opinion expressing the reasons of a single judge for

denying en banc rehearing and the two opinions expressing the

reasons of four judges to grant en banc review represent only the

views of those judges. In short, nine of the fourteen voting judges

offer no opinion regarding why they voted to deny or grant

rehearing en banc.

56a

2022. In Campbell, the three judge panel, consisting

of Chief Judge Gregory, Judge Motz, and Judge

Thacker, unanimously held that the framework

articulated in Kisor v. Wilkie, 139 S. Ct. 2400 (2019),

applies to the Sentencing Commission’s commentary

to the Sentencing Guidelines. 22 F.4th at 444-47. A

mere twelve days later, the two judge majority in

Moses, consisting of Judge Niemeyer and District

Judge Cullen (sitting by designation), issued an

opinion stating that the Kisor framework was

inapplicable to the Guidelines commentary.2 23 F.4th

at 349. That is an undeniable—and irreconcilable—

conflict.

But despite the clear contradiction with Campbell,

the Moses majority, over the protestations of Judge

King in dissent, did not even deign to mention

Campbell, much less distinguish it (because it

couldn’t).

Due to that clear conflict, Campbell must control as

the earlier published opinion. See McMellon, 387 F.3d

at 333. But that settled rule did not stop the Moses

majority from blatantly contradicting Campbell a

mere twelve days after it was issued—even though the

Moses dissent alerted the majority to the conflict and

spelled out the earliest-published-opinion rule. See

2

The Moses majority reached this conclusion even though both

parties in that case agreed that Kisor does apply to the

Guidelines commentary. See Response Br. at 14-15; Reply Br. at

1-2. And in doing so, it candidly acknowledged that its holding

departed from those of other circuits. Compare Moses, 23 F.4th

at 349, with United States v. Nasir, 17 F.4th 459, 469-72 (3d Cir.

2021) (en banc) (reaching the opposite conclusion of Moses), and

United States v. Riccardi, 989 F.3d 476,484-86 (6th Cir. 2021)

(same).

57a

Moses, 23 F.4th at 359-60 (King, J., dissenting in

part).

And if that well-settled rule can be so

casually—and apparently knowingly—ignored, then

what’s to stop future panels from doing precisely the

same? Especially when the full Court is evidently

unwilling to correct such an overreach?

Judge Niemeyer, writing in support of the denial of

rehearing en banc, suggests that no such overreach

occurred here. He opines that while there is “some

tension” between Campbell and Moses, Campbell’s

discussion of Kisor was “only conditional” and

Campbell failed to address, “nor did it need to address,

the tension between Stinson and Kisor.” Niemeyer

Op. at 5. In other words, Judge Niemeyer is

suggesting that Campbell’s discussion of Kisor is

dicta, so McMellon’s earliest-published-opinion rule

does not apply here.

If that is true, it is hard to understand why the

Moses majority did not address it in their opinion.

Surely that discussion would have been helpful to

future panels and litigants, especially if, as Judge

Niemeyer acknowledges, there is “some tension”

between the two opinions. Id. at 5. It is also not clear

why Judge Niemeyer’s critique of Campbell—that it

did not need to address the applicability of Kisor at

all—does not apply with even greater force to his

majority opinion in Moses. After all, both parties in

Moses agreed that Kisor applied to the Guidelines

commentary. See Response Br. at 14-15; Reply Br. at

1-2.

At any rate, Campbell’s analysis of Kisor is hardly

dicta. Campbell spends nearly four pages discussing

the impact of Kisor on the question at issue. See

22 F.4th at 444-47. It does not, as Judge Niemeyer

58a

suggests, “rel[y] only on Stinson for its holding.”

Niemeyer Op. at 5. Rather, it expressly relies on Kisor

to hammer home its conclusion. See Campbell,

22 F.4th at 444-45 (stating that Kisor “renders [the

Court’s] conclusion indisputable”). So, Campbell’s

repeated citations to Kisor are hardly unnecessary

flourishes; they are key analytical building blocks that

support its overall conclusion.

The fact that at least four judges of this Court

unequivocally believe that Campbell controls, while

Judge Niemeyer alone seems to believe that Moses

should control, highlights the need for en banc review.

Compare Motz Op. (joined by Judges King, Wynn, and

Thacker), and Wynn Op. (joined by Judges Motz,

King, and Thacker), with Niemeyer Op. If we are

confused about which rule applies, how can we expect

litigants to know better?

In fact, there is evidence that Moses is already

confusing lawmakers and the public. See Michael

Garcia, Cong. Rsch. Serv., LSB10690, Congressional

Court Watcher: Recent Appellate Decisions of Interest

to Lawmakers (Jan. 17-Jan. 23, 2022) (informing

Congress, incorrectly, that Moses created a circuit

split on the applicability of Kisor to the Guidelines

commentary, when it could do no such thing due to

Campbell); Bernie Pazanowski, Long Sentence Upheld

Despite Challenge to Guidelines Commentary,

Bloomberg Law (Jan. 19, 2022) (also erroneously

reporting that Moses created a circuit split). Our

failure to resolve this confusion can only undermine

the rule of law and destabilize our circuit precedent.

Today’s failure to act also makes little sense as a

matter of best practice. After all, a careful gardener

does not allow weeds to grow unchecked, trusting that

59a

they will be shaded out by her taller, earlier-planted

sprouts; she removes the weeds before they can

threaten the health of the plants she is trying to

cultivate. Cf. McMellon, 387 F.3d at 334 & n.2

(recognizing that while “the first case to decide the

issue is the one that must be followed,” an en banc

rehearing can provide an avenue to “more quickly

resolve” an “infra-circuit conflict” when a laterdecided case fails to follow earlier precedent); id. at

354 (Niemeyer, J., dissenting in part) (rejecting the en

banc majority’s earliest-published-opinion rule in part

because “we can always resolve intra-circuit splits by

en banc rehearings”).

Judge Niemeyer suggests that any weed pulling

here would be premature. Rather, he contends, it

would be “wise to postpone addressing the [tension

between Stinson and Kisor] until it is presented to us

directly in a future case.” Niemeyer Op. at 6

(emphasis added). However, Judge Niemeyer also

notes that the tension between Stinson and Kisor is

the very “root of this case.” Id. at 3 (emphasis added).

If that’s true, Moses would seem to be the perfect

vehicle to address the tension he is concerned about in

an en banc rehearing.

A proactive approach seems especially wise here,

where the present case involves an issue of

exceptional importance. Moses did not just purport to

interpret a single subsection of the Guidelines

commentary. Rather, it attempted to craft a metarule that would govern our interpretation of the

commentary writ large. See Moses, 23 F.4th at 352.

Because the Guidelines commentary plays a key role

in criminal sentencing, Moses’s putative rule could

60a

impact hundreds, if not thousands, of cases in the

Fourth Circuit.

Sheer numbers aside, Rule 35 also explains that a

“proceeding presents a question of exceptional

importance if it involves an issue on which the panel

decision conflicts with the authoritative decisions of

other United States Courts of Appeals that have

addressed the issue.”

Fed. R. App. P. 35(b)(1)(B).

And Moses frankly acknowledged that its holding

departed from the law of the Third and Sixth Circuits.

See Moses, 23 F.4th at 349 (citing United States v.

Nasir, 17 F.4th 459, 469-72 (3d Cir. 2021) (en banc),

and United States v. Riccardi, 989 F.3d 476, 484-86

(6th Cir. 2021)). So, Moses not only created an intracircuit split, but it also attempted to create an oldfashioned circuit split. That alone makes it an

exceptionally important case worthy of en banc

review.

In sum, it would be hard to imagine a more suitable

candidate for en banc rehearing. Yet somehow the

majority of my colleagues declined to grant a petition

for such a rehearing. Though I generally do not favor

separate opinions on matters like this, I cannot be

associated with what I view as a serious departure

from the purposes of Rule 35. So, with great respect

for my colleagues in the majority, I vote to grant

rehearing en banc.