Opposition Brief — Cory Ratzloff, Petitioner v. United States

No. 23-310

In the Supreme Court of the United States

CORY RATZLOFF, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

NICOLE M. ARGENTIERI

Acting Assistant Attorney

General

DANIEL N. LERMAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the district court correctly determined

that, when petitioner burglarized a licensed firearms

dealer and stole 11 firearms, he possessed those firearms “in connection with” the burglary for purposes of

the

enhancement

in

Sentencing

Guidelines

§ 2K2.1(b)(6)(B).

(I)

TABLE OF CONTENTS

Page

Opinion below ................................................................................ 1

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

Statement ...................................................................................... 1

Argument....................................................................................... 8

Conclusion ................................................................................... 22

TABLE OF AUTHORITIES

Cases:

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) .................. 19

Alvarez v. Smith, 558 U.S. 87 (2009) ................................... 19

Auer v. Robbins, 519 U.S. 452 (1997) .................................. 12

Blockburger v. United States, 284 U.S. 299 (1932) ............ 11

Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410 (1945).................................................... 4, 12, 13

Braxton v. United States, 500 U.S. 344 (1991) ............. 17, 18

Broadway v. United States, 141 S. Ct. 2792 (2021) ............. 9

Burkey v. Marberry, 556 F.3d 142 (3d Cir.),

cert. denied, 558 U.S. 969 (2009) ....................................... 20

Carviel v. United States, 142 S. Ct. 2788 (2022) ................... 8

Duke v. United States, 142 S. Ct. 1242 (2022) ...................... 8

Gamble v. United States, 139 S. Ct. 1960 (2019) ................ 11

Guerrant v. United States, 142 S. Ct. 640 (2022) ............... 18

Guillory v. United States, 142 S. Ct. 1135 (2022) ................. 8

Johnson v. Pettiford, 442 F.3d 917 (5th Cir. 2006) ............ 21

Kendrick v. United States, 141 S. Ct. 2866 (2021) ............... 8

Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ................... 6, 8, 13-15

Lane v. Williams, 455 U.S. 624 (1982) ................................ 19

Lario-Rios v. United States, 142 S. Ct. 798 (2022) .............. 8

Levine v. Apker, 455 F.3d 71 (2d Cir. 2006) ........................ 21

Lewis v. United States, 141 S. Ct. 2826 (2021) ..................... 9

(III)

IV

Cases—Continued:

Page

Lomax v. United States, 143 S. Ct. 789 (2023) ..................... 8

Lovato v. United States, 141 S. Ct. 2814 (2021) .................... 9

Melkonyan v. United States, 142 S. Ct. 275 (2021) .............. 9

Mont v. United States, 139 S. Ct. 1826 (2019) ...................... 9

Moses v. United States, 143 S. Ct. 640 (2023) ....................... 8

Mujahid v. Daniels, 413 F.3d 991 (9th Cir. 2005),

cert. denied, 547 U.S. 1149 (2006) ..................................... 21

O’Neil v. United States, 141 S. Ct. 2825 (2021) .................... 9

Pope v. Perdue, 889 F.3d 410 (7th Cir. 2018) ...................... 21

Rhodes v. Judiscak, 676 F.3d 931 (10th Cir.),

cert. denied, 567 U.S. 935 (2012) ....................................... 20

Smith v. Phillips, 455 U.S. 209 (1982) ................................. 12

Smith v. United States, 142 S. Ct. 488 (2021) ....................... 8

Smith v. United States, 508 U.S. 223 (1993) ................... 9, 10

Sorenson v. United States, 141 S. Ct. 2822 (2021) ............... 9

Spencer v. Kemna, 523 U.S. 1 (1998) ................................... 19

State v. Frierson, 298 Kan. 1005 (2014)............................... 10

Steel Co. v. Citizens for a Better Environment,

523 U.S. 83 (1998) ............................................................... 21

Stinson v. United States, 508 U.S. 36 (1993) ...... 4, 12, 14, 15

Tabb v. United States, 141 S. Ct. 2793 (2021) ....................... 9

United States v. Booker, 543 U.S. 220 (2005) ................. 4, 18

United States v. Campbell,

22 F.4th 438 (4th Cir. 2022) ............................................... 16

United States v. Castillo,

69 F.4th 648 (9th Cir. 2023) ............................................... 16

United States v. Dupree,

57 F.4th 1269 (11th Cir. 2023) ........................................... 16

United States v. Jenkins,

50 F.4th 1185 (D.C. Cir. 2022) ........................................... 17

United States v. Johnson, 529 U.S. 53 (2000) ..................... 20

United States v. Ketter, 908 F.3d 61 (4th Cir. 2018) .......... 21

V

Cases—Continued:

Page

United States v. Maloid,

71 F.4th 795 (10th Cir. 2023) ......................................... 7, 12

United States v. Morris,

562 F.3d 1131 (10th Cir. 2009) ....................................... 7, 12

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

cert. denied, 142 S. Ct. 275 (2021) ..................................... 17

United States v. Perez, 5 F.4th 390 (3d Cir. 2021) ....... 16, 17

United States v. Riccardi,

989 F.3d 476 (6th Cir. 2021) ............................................... 17

United States v. Salazar,

987 F.3d 1248 (10th Cir.), cert. denied,

142 S. Ct. 321 (2021) .......................................................... 21

United States v. Winstead,

890 F.3d 1082 (D.C. Cir. 2018) ........................................... 17

Wiggins v. United States, 142 S. Ct. 139 (2021) ................... 8

Wynn v. United States, 142 S. Ct. 865 (2022) ....................... 8

Yee v. City of Escondido, 503 U.S. 519 (1992) .................... 12

Constitution, statutes, regulations and rules:

U.S. Const. Art. III ......................................................... 18, 19

Administrative Procedure Act,

5 U.S.C. 551 et seq.:

5 U.S.C. 553(b) ................................................................... 3

5 U.S.C. 553(c) ................................................................... 3

Sentencing Reform Act of 1984, Pub. L. No. 98-473,

Tit. II, ch. II, 98 Stat. 1987 .................................................. 2

18 U.S.C. 922( j) ...................................................................... 11

18 U.S.C. 922(u) ............................................................. 1, 5, 11

18 U.S.C. 924(c)........................................................................ 9

18 U.S.C. 924(i)(1) ................................................................ 1, 5

18 U.S.C. 3553(b)(1) ................................................................. 3

18 U.S.C. 3583(e)(1) ............................................................... 20

VI

Statutes, regulations and rules—Continued:

Page

28 U.S.C. 991(a) ....................................................................... 2

28 U.S.C. 994(a) ....................................................................... 3

28 U.S.C. 994(a)(1) ................................................................... 2

28 U.S.C. 994(a)(2) ................................................................... 2

28 U.S.C. 994(o) ....................................................................... 2

28 U.S.C. 994(o) (1988) .......................................................... 17

28 U.S.C. 994(p) ....................................................................... 3

28 U.S.C. 994(x) ....................................................................... 3

Kan. Stat. Ann.:

§ 21-5807(a) (2023) ........................................................... 10

§ 21-5807(c)(1)(B) (2023) ................................................... 9

§ 21-5807(c)(1)(B)(ii) (2022) .............................................. 6

U.S. Sent. Comm’n R.:

Rule 2.2(b) .......................................................................... 3

Rule 4.1 ............................................................................... 3

Rule 4.3 ............................................................................... 3

Unites States Sentencing Guidelines (2021):

Ch. 1:

§ 1B1.1 .......................................................................... 3

§ 1B1.1(a) ...................................................................... 2

§ 1B1.1(b) ...................................................................... 2

§ 1B1.6 (2021) ............................................................... 2

§ 1B1.7 .................................................................... 3, 18

Ch. 2:

§ 2B1.1(b) .................................................................... 17

§ 2K2.1:

Comment. (n. 14 (A)) ....................................... 5, 15

Comment. (n. 14 (B)) ................... 5-9, 11, 12, 14-16

Comment. (n. 14 (B)(i)) .......................................... 6

§ 2K2.1(b)(6)(B) ................................. 5-9, 11, 12, 14-16

VII

Regulation and rule—Continued:

Page

Ch. 4:

§ 4B1.2(b) .................................................................... 16

App. C, Vol. 3 (Nov. 1, 2021) ........................................... 14

Miscellaneous:

71 Fed. Reg. 28,063 (May 15, 2006) ............................... 14, 18

52 Fed. Reg. 18,046 (May 13, 1987) ....................................... 3

87 Fed. Reg. 67,756 (Nov. 9, 2022) ....................................... 18

In the Supreme Court of the United States

No. 23-310

CORY RATZLOFF, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-8a)

is not published in the Federal Reporter but is available

at 2023 WL 6280326.

JURISDICTION

The judgment of the court of appeals was entered on

June 27, 2023. The petition for a writ of certiorari was

filed on September 22, 2023. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a guilty plea in the United States District

Court for the District of Kansas, petitioner was convicted of stealing a firearm from a federally licensed

firearms dealer, in violation of 18 U.S.C. 922(u) and

924(i)(1). Pet. App. 9a. He was sentenced to 20 months

of imprisonment, to be followed by two years of super(1)

2

vised release. Id. at 11a-12a. The court of appeals affirmed. Id. at 1a-8a.

1. a. In the Sentencing Reform Act of 1984, Pub. L.

No. 98-473, Tit. II, ch. II, 98 Stat. 1987, Congress established the United States Sentencing Commission (Commission) “as an independent commission in the judicial

branch of the United States.” 28 U.S.C. 991(a). Congress directed the Commission to promulgate “guidelines * * * for use of a sentencing court in determining

the sentence to be imposed in a criminal case,” as well

as “general policy statements regarding application of

the guidelines.” 28 U.S.C. 994(a)(1) and (2). Congress

also directed the Commission to “periodically * * * review and revise” the Sentencing Guidelines. 28 U.S.C.

994(o).

The Guidelines are structured as a series of numbered guidelines and policy statements followed by additional commentary. See Sentencing Guidelines

§ 1B1.6 (2021).1 The Commission has explained, in a

guideline entitled “Significance of Commentary,” that

the commentary following each guideline “may serve a

number of purposes,” including to “interpret the guideline or explain how it is to be applied.” § 1B1.7 (emphasis omitted). The Commission has further explained

that “[s]uch commentary is to be treated as the legal

equivalent of a policy statement.” Ibid. And the Commission has instructed that, in order to correctly “apply[] the provisions of ” the Guidelines, a sentencing

court must consider any applicable “commentary in the

guidelines.” § 1B1.1(a) and (b). Congress has similarly

required district courts to consider “the sentencing

guidelines, policy statements, and official commentary

All citations of the Sentencing Guidelines refer to the 2021 edition used at petitioner’s sentencing.

1

3

of the Sentencing Commission” in imposing a sentence.

18 U.S.C. 3553(b)(1).

Under 28 U.S.C. 994(x), to promulgate or amend a

guideline, the Commission must comply with the noticeand-comment procedures for rulemaking by executive

agencies. See 5 U.S.C. 553(b) and (c). And under 28

U.S.C. 994(p), the Commission must “submit to Congress” any proposed amendment to the Guidelines,

along with “a statement of the reasons therefor.” Proposed amendments generally may not take effect until

180 days after the Commission submits them to Congress. Ibid. The guidelines cited above, regarding the

salience of commentary, were themselves subject to

both notice-and-comment and congressional-review

procedures. See, e.g., 52 Fed. Reg. 18,046, 18,053,

18,091-18,110 (May 13, 1987) (notice of submission to

Congress of “Application Instructions” in Section 1B1.1

and “Significance of Commentary” in Section 1B1.7)

(emphasis omitted).

Although Sections 994(p) and (x) do not apply to policy statements and commentary, the Commission’s

rules provide that “the Commission shall endeavor to

include amendments to policy statements and commentary in any submission of guideline amendments to Congress.” U.S. Sent. Comm’n R. 4.1. The rules similarly

provide that the Commission “will endeavor to provide,

to the extent practicable, comparable opportunities for

public input on proposed policy statements and commentary.” U.S. Sent. Comm’n R. 4.3. And like amendments to the text of a guideline, an “affirmative vote of

at least four members of the Commission” is required

to promulgate or amend any policy statement or commentary. 28 U.S.C. 994(a); see U.S. Sent. Comm’n R.

2.2(b).

4

b. Before this Court’s decision in United States v.

Booker, 543 U.S. 220 (2005), the Sentencing Guidelines

were “mandatory” and limited a district court’s discretion to impose a non-Guidelines sentence, id. at 227, 233.

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

Court addressed the role of Guidelines commentary and

determined that “commentary in the Guidelines Manual

that interprets or explains a guideline is authoritative

unless it violates the Constitution or a federal statute,

or is inconsistent with, or a plainly erroneous reading

of, that guideline.” Id. at 38.

In making that determination, the Court drew an

“analogy” to the principles of deference applicable to an

executive agency’s interpretation of its own regulations.

Stinson, 508 U.S. at 44. The Court stated that, under

those principles, as long as the “agency’s interpretation

of its own regulations does not violate the Constitution

or a federal statute, it must be given ‘controlling weight

unless it is plainly erroneous or inconsistent with the

regulation.’ ” Id. at 45 (quoting Bowles v. Seminole

Rock & Sand Co., 325 U.S. 410, 414 (1945)). The Court

acknowledged that the analogy was “not precise,” but

nonetheless viewed affording “this measure of controlling authority to the commentary” as the appropriate

approach in the particular circumstances of the Guidelines. Id. at 44-45.

2. On September 26, 2019, petitioner and two accomplices broke the front window of The Gun Garage, a federally licensed firearms dealer in Topeka, Kansas. Pet.

App. 2a. Petitioner entered the store through the broken window, broke into a firearms display case inside,

removed the firearms from the case, and passed them

back through the window to his accomplices outside.

5

Ibid. The three men stole 11 firearms in total, and then

fled on foot. Ibid.

When petitioner was arrested roughly two months

later, he admitted that he broke into the store to steal

the guns so that he could resell them. Pet. App. 2a; see

Gov’t C.A. Br. 7. Petitioner subsequently pleaded

guilty to one count of stealing a firearm from a licensed

firearms dealer, in violation of 18 U.S.C. 922(u) and

924(i)(1). Pet. App. 9a. Under Section 2K2.1(b)(6)(B) of

the now-advisory Sentencing Guidelines, the base offense level for that offense increases by four levels if the

defendant “used or possessed any firearm or ammunition in connection with another felony offense” or “possessed or transferred any firearm or ammunition with

knowledge, intent, or reason to believe that it would be

used or possessed in connection with another felony offense.” Sentencing Guidelines § 2K2.1(b)(6)(B).

Application Note 14(A) in the commentary to Section

2K2.1, titled “In General,” provides that the four-level

enhancement applies “if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense.” Sentencing Guidelines § 2K2.1, comment.

(n.14(A)). Application Note 14(B), titled “Application

When Other Offense is Burglary or Drug Offense,” provides that the enhancement applies “(i) in a case in

which a defendant who, during the course of a burglary,

finds and takes a firearm, even if the defendant did not

engage in any other conduct with that firearm during

the course of the burglary; and (ii) in the case of a drug

trafficking offense in which a firearm is found in close

proximity to drugs, drug-manufacturing materials, or

drug paraphernalia.” § 2K2.1, comment. (n.14(B)). Application Note 14(B) explains that “[i]n these cases, application of subsection[] (b)(6)(B) * * * is warranted be-

6

cause the presence of the firearm has the potential of

facilitating another felony offense.” Ibid.

The Probation Office determined in its presentence

report that petitioner’s offense level should be increased by four levels under Section 2K2.1(b)(6)(B) because he possessed the firearms “in connection with”

another felony, namely Kansas burglary with the intent

to steal a firearm. Amended Presentence Investigation

Report (PSR) ¶ 58 (citing Kan. Stat. Ann. § 215807(c)(1)(B)(ii)). Petitioner objected, arguing (PSR

¶ 149) that Application Note 14(B)(i), which he described as creating an “automatic enhancement” for

certain burglary offenses, is not a reasonable interpretation of Section 2K2.1(b)(6)(B). See PSR ¶¶ 149-153.

Petitioner acknowledged (Pet. App. 25a) the “deference

[a] court owes to guideline commentary” under Stinson

v. United States, but contended that this Court’s decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), had

“change[d] the analysis.” See PSR ¶¶ 151-153.

The district court overruled petitioner’s objection.

Pet. App. 28a. The court explained that under Booker,

it was “not bound to follow the commentary to the

guidelines.” Id. at 26a. The court further explained

that it “certainly d[id]n’t believe and d[id]n’t read the

commentary to require adherence or deference.” Id. at

28a. Rather, the court explained, it was making its “own

independent judgment as to the application” of Section

2K2.1(b)(6)(B). Ibid.

Applying its “independent judgment,” the district

court found that the enhancement applied because the

firearms were “part and parcel” of the burglary. Pet.

App. 28a. The court also confirmed that it had “found

that the possession of the firearm in this case did facilitate the commission of the burglary.” Ibid. The court

7

ultimately calculated an advisory guidelines range of 24

to 30 months of imprisonment, Sent. Tr. 50, and sentenced petitioner to a below-guidelines term of 20

months of imprisonment, to be followed by two years of

supervised release. Pet. App. 11a-12a.

3. The court of appeals affirmed in an unpublished

order. Pet. App. 1a-8a.

Petitioner contended on appeal that the district

court erred in applying the enhancement in Sentencing

Guidelines § 2K2.1(b)(6)(B). See Pet. C.A. Br. 15-19.

Petitioner stated that the “enhancement applies only

when a defendant’s possession of a firearm makes it easier to commit another felony offense,” and that the firearms here could not have made it easier to commit the

burglary on the ground that the burglary offense was

completed before he possessed the firearms. Id. at 14;

see id. at 15-19. Petitioner acknowledged that the district court “disclaimed relying on the Guidelines Manual’s commentary,” and urged the court of appeals not

to affirm his sentence on the alternative ground of reliance on the commentary in Application Note 14(B), asserting that the application note reflects an unreasonable interpretation of Section 2K2.1(b)(6)(B) under Kisor. Id. at 19; see id. at 19-42.

The court of appeals, however, found that the “district court * * * correctly applied § 2K2.1(b)(6)(B)’s

four-level enhancement to [petitioner’s] sentence.” Pet.

App. 7a-8a. The court of appeals observed (id. at 6a-7a)

that in United States v. Morris, 562 F.3d 1131 (10th Cir.

2009), it had determined “that Application Note 14(B)

was entitled to deference under Stinson,” and that in

United States v. Maloid, 71 F.4th 795 (10th Cir. 2023),

it had “rejected [the] contention that Kisor affects Stinson.” The court further observed that Application Note

8

14(B)—which provides that the Section 2K2.1(b)(6)(B)

enhancement “applies when ‘a defendant, during the

course of a burglary, finds and takes a firearm’ ”—

“plainly describes [petitioner’s] case,” and that petitioner had “concede[d] as much in his brief.” Pet. App.

6a (brackets and citation omitted).

ARGUMENT

Petitioner renews his challenge (Pet. 11-24) to the

application of Sentencing Guidelines § 2K2.1(b)(6)(B),

contending that Application Note 14(B) reflects an unreasonable interpretation of the guidelines under this

Court’s decision in Kisor v. Wilkie, 139 S. Ct. 2400

(2019). The court of appeals correctly upheld the district court’s application of the enhancement in calculating petitioner’s advisory sentencing range, and its decision does not implicate any conflict with other courts of

appeals warranting this Court’s review. This case also

would be an unsuitable vehicle in which to address the

question presented because petitioner has been released from prison and so his challenge is moot. This

Court has recently and repeatedly denied petitions for

writs of certiorari seeking review of questions concerning the application of Kisor to the distinct context of the

guidelines.2 The same result is warranted here.

See, e.g., Lomax v. United States, 143 S. Ct. 789 (2023) (No. 22644); Moses v. United States, 143 S. Ct. 640 (2023) (No. 22-163);

Carviel v. United States, 142 S. Ct. 2788 (2022) (No. 21-7609); Duke

v. United States, 142 S. Ct. 1242 (2022) (No. 21-7070); Guillory v.

United States, 142 S. Ct. 1135 (2022) (No. 21-6403); Wynn v. United

States, 142 S. Ct. 865 (2022) (No. 21-5714); Lario-Rios v. United

States, 142 S. Ct. 798 (2022) (No. 21-6121); Smith v. United States,

142 S. Ct. 488 (2021) (No. 21-496); Melkonyan v. United States, 142

S. Ct. 275 (2021) (No. 21-5186); Wiggins v. United States, 142 S. Ct.

139 (2021) (No. 20-8020); Kendrick v. United States, 141 S. Ct. 2866

2

9

1. The court of appeals correctly upheld the application of Section 2K2.1(b)(6)(B) in this case.

a. Section 2K2.1(b)(6)(B) applies when the defendant “possessed any firearm or ammunition in connection

with another felony offense.” Sentencing Guidelines

§ 2K2.1(b)(6)(B). This “Court has often recognized that

‘in connection with’ can bear a ‘broad interpretation.’ ”

Mont v. United States, 139 S. Ct. 1826, 1832 (2019) (citation omitted). At a minimum, therefore, that phrase

comfortably encompasses a “direct [],” ibid., relationship between the firearm and the felony offense. The

relationship here could hardly be more direct: the firearms were the very objects of petitioner’s burglary. Indeed, the “felony offense” on which the district court relied was an enhanced version of Kansas burglary applicable only when it is committed “with intent to commit

the theft of a firearm.” Kan. Stat. Ann. § 215807(c)(1)(B) (emphasis added); see PSR ¶ 58 n.1. Given

that direct relationship, petitioner plainly “possessed”

the 11 firearms he stole from The Gun Garage “in connection with” the very burglary in which he stole them.

Sentencing Guidelines § 2K2.1(b)(6)(B).

In the court of appeals, petitioner relied (Pet. C.A.

Br. 15) on this Court’s interpretation of a “similar

phrase” in Smith v. United States, 508 U.S. 223 (1993).

There, the Court explained that the phrase “ ‘in relation

to’ ” in 18 U.S.C. 924(c)—which it described as “ ‘deliberately expansive’ ”—means that the firearm “at least

(2021) (No. 20-7667); Lewis v. United States, 141 S. Ct. 2826 (2021)

(No. 20-7387); O’Neil v. United States, 141 S. Ct. 2825 (2021) (No.

20-7277); Broadway v. United States, 141 S. Ct. 2792 (2021) (No. 20836); Sorenson v. United States, 141 S. Ct. 2822 (2021) (No. 20-7099);

Lovato v. United States, 141 S. Ct. 2814 (2021) (No. 20-6436); Tabb

v. United States, 141 S. Ct. 2793 (2021) (No. 20-579).

10

must ‘facilitate, or have the potential of facilitating,’ the

[other] offense.” Smith, 508 U.S. at 237-238 (brackets

and citations omitted). The Court further explained

that the phrase excludes situations where “the firearm’s

presence is coincidental or entirely ‘unrelated’ to the

crime.” Ibid. (citation omitted). Here, however, the

firearms’ presence was neither coincidental nor unrelated (much less “entirely” unrelated) to the burglary.

Petitioner broke into The Gun Garage and the display case for the very purpose of stealing those firearms. And although it proved unnecessary to use them,

the firearms plainly had the potential of facilitating the

burglary—for instance, had the authorities (or an unfortunate bystander) intervened in the middle of the

heist. Moreover, a firearm can facilitate a crime by

making escape easier or more likely, even if the firearm

is not used or possessed during the crime itself; for example, a bank robbery may be facilitated by the

knowledge that there is a firearm in the getaway car.

In addition, the Kansas burglary statute provides that

“[b]urglary is, without authority, entering into or remaining within” a qualifying structure with “intent to

commit a felony” or other listed crime therein. Kan.

Stat. Ann. § 21-5807(a) (emphasis added). Accordingly,

petitioner likely committed Kansas burglary throughout the time he was in The Gun Garage, including the

time during which he possessed the firearms, because

he continued to have the intent to steal them while he

“remain[ed] within” The Gun Garage. Ibid.; see State

v. Frierson, 298 Kan. 1005, 1012 (2014) (explaining that

a defendant can commit both “entering” and “remaining

within” burglary in a single event).

Therefore, as the district court correctly found, irrespective of Application Note 14(B)’s validity or lack

11

thereof, petitioner’s possession of the firearms was

“part and parcel” of the burglary, Pet. App. 28a, and

thus “in connection with” that burglary within the

meaning of Section 2K2.1(b)(6)(B). Cf. Pet. C.A. Br. 11

(acknowledging that “the district court denied any reliance on th[e] commentary”). Petitioner suggests (Pet.

31) that although the firearms were “the object[s]” of

his burglary, that burglary is not “another” felony offense under Section 2K2.1(b)(6)(B) because it was “the

theft for which he was convicted.” That suggestion

lacks merit. Kansas burglary is obviously different

from the Section 922(u) offense for which petitioner was

convicted: not only does each require proof of an element the other does not, see Blockburger v. United

States, 284 U.S. 299, 304 (1932), but they are crimes defined by different sovereigns and thus would be different offenses even if their elements overlapped, see

Gamble v. United States, 139 S. Ct. 1960, 1965 (2019).

b. The application of Section 2K2.1(b)(6)(B) was also

correct for the independent reason that it applies when

the defendant “possessed or transferred any firearm or

ammunition with knowledge, intent, or reason to believe

that it would be used or possessed in connection with

another felony offense.”

Sentencing Guidelines

§ 2K2.1(b)(6)(B). Here, petitioner admitted that he

stole the firearms in order to sell them. Pet. App. 2a.

Knowingly selling stolen guns is a felony. See, e.g., 18

U.S.C. 922( j) (making it “unlawful for any person to

* * * sell, or dispose of any stolen firearm or stolen ammunition” that has traveled in interstate commerce

“knowing or having reasonable cause to believe that the

firearm or ammunition was stolen”). Accordingly, petitioner “possessed” the firearms with “intent, or reason

to believe that [they] would be used or possessed in con-

12

nection with another felony offense”—namely, the sale

of stolen guns. Sentencing Guidelines § 2K2.1(b)(6)(B).

The Section 2K2.1(b)(6)(B) enhancement was therefore warranted irrespective both of whether petitioner

possessed firearms “in connection with” the burglary

(as the district court found) and of whether Application

Note 14(B) applies (as the court of appeals found). And

although the court of appeals did not rely on that alternative ground to affirm application of the enhancement,

a respondent may “defend the judgment below on any

ground which the law and the record permit, provided

the asserted ground would not expand the relief which

has been granted.” Smith v. Phillips, 455 U.S. 209, 215

n.6 (1982); cf. Yee v. City of Escondido, 503 U.S. 519, 534

(1992) (“Once a federal claim is properly presented, a

party can make any argument in support of that claim;

parties are not limited to the precise arguments they

made below.”). At a minimum, that alternative ground

to support the enhancement makes this a poor vehicle

in which to address petitioner’s challenge.

c. In its unpublished order, the court of appeals affirmed petitioner’s sentence by relying on Application

Note 14(B) in light of binding circuit precedent establishing that the application note was entitled to deference under Stinson v. United States, 508 U.S. 36 (1993),

and that Kisor did not overrule Stinson. See Pet. App.

6a-7a (citing United States v. Morris, 562 F.3d 1131

(10th Cir. 2009), and United States v. Maloid, 71 F.4th

795 (10th Cir. 2023)).

In Kisor, this Court considered whether to overrule

Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v.

Seminole Rock & Sand Co., 325 U.S. 410 (1945), and

thus “discard[] the deference” afforded under those decisions to “agencies’ reasonable readings of genuinely

13

ambiguous regulations.” Kisor, 139 S. Ct. at 2408; see

Auer, 519 U.S. at 461 (stating that an agency’s interpretation of its own regulation is “controlling unless

‘plainly erroneous or inconsistent with the regulation’ ”)

(quoting, indirectly, Seminole Rock, 325 U.S. at 414).

The Court took Kisor as an opportunity to “restate, and

somewhat expand on,” the limiting principles for deferring to agency’s interpretation of its own regulation.

139 S. Ct. at 2414. Among other things, the Court emphasized that “a court should not afford Auer deference” to an agency’s interpretation of a regulation “unless the regulation is genuinely ambiguous.” Id. at 2415.

Notwithstanding those clarifications, the Court

pointedly declined to overrule Auer or Seminole Rock—

let alone the “legion” of other precedents applying those

decisions, including Stinson. Kisor, 139 S. Ct. at 2411

n.3 (opinion of Kagan, J.) (identifying Stinson, 508 U.S.

at 44-45, as one of numerous examples); see id. at 2422

(majority opinion) (citing this “long line of precedents”

as a reason not to overrule Auer) (citation omitted); cf.

id. at 2424-2425 (Roberts, C.J., concurring in part). The

Court explained that it had “applied Auer or Seminole

Rock in dozens of cases, and lower courts ha[d] done so

thousands of times,” and that “[d]eference to reasonable agency interpretations of ambiguous rules pervades

the whole corpus of administrative law.” Id. at 2422

(majority opinion). And the Court adhered to Auer on

stare decisis grounds in part to avoid “allow[ing] relitigation of any decision based on Auer,” with the attendant “instability” that would result from overturning

precedent in “so many areas of law, all in one blow.”

Ibid.

This Court’s decision in Kisor now provides the governing standards for determining whether a court must

14

defer to an executive agency’s interpretation of a regulation. 139 S. Ct. at 2414-2418. And the Court’s earlier

decision in Stinson reasoned that—by “analogy,” albeit

“not [a] precise” one—the Commission’s commentary

interpreting the Guidelines should be treated the same

way, 508 U.S. at 44; see id. at 44-46. The government

has accordingly taken the position, including in this

case, that Kisor sets forth the authoritative standards

for determining whether particular commentary is entitled to deference. See Gov’t C.A. Br. 29-34.

d. This, however, is not a case in which direct application of Stinson, rather than Kisor, makes a difference

to the outcome. As explained above, application of Sentencing Guidelines § 2K2.1(b)(6)(B) followed directly

from its plain text, without any need to reference Application Note 14(B). Accordingly, as petitioner acknowledged below (Pet. C.A. Br. 11, 19), the district court expressly disclaimed any reliance on the application note

in incorporating that Guidelines provision into the calculation of petitioner’s advisory sentencing range. See

Pet. App. 28a.

In any event, Application Note 14(B) would warrant

deference under the principles set forth in Kisor. Application Note 14(B) is the Commission’s “authoritative” and “official” position, Kisor, 139 S. Ct. at 2416 (citation omitted), having been included in the official

Guidelines Manual for more than 15 years. See 71 Fed.

Reg. 28,063, 28,070 (May 15, 2006); Sentencing Guidelines App. C, Vol. 3, at 177 (Amendment 691). The application note also implicates the Commission’s “substantive expertise.” Kisor, 139 S. Ct. at 2417. More

broadly, this Court has recognized that the Commission’s commentary “assist[s] in the interpretation and

application of [the guidelines], which are within the

15

Commission’s particular area of concern and expertise

and which the Commission itself has the first responsibility to formulate and announce.” Stinson, 508 U.S. at

45. And Application Note 14(B) reflects the Commission’s “fair and considered judgment,” not an ad hoc position of convenience adopted for litigation. Kisor, 139

S. Ct. at 2417 (citation omitted).

Petitioner’s current arguments are somewhat inconsistent with the arguments that he made below. While

he now asserts that “Application Note 14(B) reflects an

unreasonable interpretation of unambiguous aspects of

§ 2K2.1(b)(6)(B),” Pet. 31 (emphasis added), his position

in the court of appeals was that “ ‘in connection with’

* * * is ambiguous,” Pet. C.A. Br. 15. Petitioner also

recognized below that “in connection with” means to

“facilitate,” ibid. (citations omitted), which is what Application Note 14(A) provides: “Subsection[] (b)(6)(B)

* * * appl[ies] if the firearm or ammunition facilitated,

or had the potential of facilitating, another felony offense,” Sentencing Guidelines § 2K2.1, comment.

(n.14(A)). And Application Note 14(B) is simply a casespecific application of that principle, clarifying that in

burglary cases where the defendant “finds and takes a

firearm, * * * application of subsection[] (b)(6)(B) * * *

is warranted because the presence of the firearm has

the potential of facilitating another felony offense.”

§ 2K2.1, comment. (n.14(B)) (emphasis added).

2. a. Petitioner contends (Pet. 11) that the courts of

appeals “are in deep disagreement about whether Kisor’s deference principles extend to the Sentencing

Commission’s commentary on its Guidelines.” This

Court has repeatedly denied petitions for writs of certiorari asserting such a conflict, see p. 8 n.2, supra, and

the same course is warranted here. Petitioner also fails

16

to identify any court of appeals that would treat his possession of firearms as not being “in connection with” his

burglary, such that the four-level enhancement in Section 2K2.1(b)(6)(B) would not apply. Although he asserts (Pet. 31) that courts of appeals might reach different conclusions “in a world without Application Note

14(B),” he does not identify any disagreement within

the courts of appeals on the application note’s validity.

Indeed, the only court of appeals decision applying Kisor to Application Note 14(B) of which the government

is aware has held that Application Note 14(B) is “a reasonable interpretation of an ambiguous Guideline.”

United States v. Perez, 5 F.4th 390, 399 (3d Cir. 2021)

(addressing the proximity-to-drugs provision of Application Note 14(B)). Petitioner thus fails to show that

the outcome in his case would have been any different

in any other circuit.

Even with respect to the abstract methodological

question of whether Kisor applies in the guidelines context, the circuit decisions cited by petitioner (Pet. 11-18)

do not demonstrate a conflict warranting this Court’s

review in this case. Petitioner contends that six courts

of appeals—the Third, Fourth, Sixth, Eighth, Ninth,

and Eleventh Circuits—“apply Kisor to Guidelines

commentary.” Pet. 11; see Pet. 11-15. But the cited decisions in five of those circuits took the view that the

particular commentary or application note at issue did

not warrant deference under Kisor because the relevant guidelines provision unambiguously required the

approach urged by the defendant. See United States v.

Castillo, 69 F.4th 648, 658 (9th Cir. 2023) (taking view

that Section 4B1.2(b) unambiguously excludes inchoate

offenses); United States v. Dupree, 57 F.4th 1269, 1278

(11th Cir. 2023) (en banc) (same); United States v.

17

Campbell, 22 F.4th 438, 446 (4th Cir. 2022) (same);

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

banc) (same), cert. denied, 142 S. Ct. 275 (2021); United

States v. Riccardi, 989 F.3d 476, 486 (6th Cir. 2021)

(taking view that that Section 2B1.1(b)’s reference to

“loss” unambiguously requires calculation of actual loss,

not an automatic default minimum). And the sixth, as

petitioner acknowledges (Pet. 14), similarly appears to

have simply adhered to its pre-Kisor law “declin[ing] to

defer to Guidelines commentary where the Guidelines

themselves [a]re not ambiguous.” See United States v.

Jenkins, 50 F.4th 1185, 1197 (D.C. Cir. 2022); United

States v. Winstead, 890 F.3d 1082, 1092 (D.C. Cir. 2018).

Here, by contrast, petitioner’s own position below

was that “in connection with” is ambiguous. See Pet.

C.A. Br. 15. And the Third Circuit has accordingly applied Kisor in finding that that Application Note 14(B)

is a reasonable construction of ambiguous guideline

text, and thus entitled to deference under Kisor. Perez,

5 F.4th at 395, 399. Those decisions underscore that petitioner would not be entitled to relief in any of the

courts of appeals that have ceased to apply Stinson in

the wake of Kisor.

b. In any event, certiorari is not warranted because

this Court typically leaves the resolution of guidelines

issues to the Commission. The Commission has a “statutory duty ‘periodically to review and revise’ the Guidelines.” Braxton v. United States, 500 U.S. 344, 348

(1991) (quoting 28 U.S.C. 994(o) (1988)) (brackets omitted). Congress thus “necessarily contemplated that the

Commission would periodically review the work of the

courts, and would make whatever clarifying revisions to

the Guidelines conflicting judicial decisions might suggest.” Ibid. Given that the Commission can and does

18

amend the sentencing guidelines to eliminate conflicts

or correct errors, this Court ordinarily does not review

decisions interpreting the Guidelines. See ibid.; see

also United States v. Booker, 543 U.S. 220, 263 (2005).

Petitioner contends that “the Commission ‘cannot,

on its own, resolve the dispute about what deference

courts should give to the commentary.’ ” Pet. 19 (citation omitted). But an explicit guideline—which was

subject to notice-and-comment and congressional

review—already provides instructions for applying

commentary. See Sentencing Guidelines § 1B1.7; p. 2,

supra. Indeed, Application Note 14(B) itself was promulgated only after notice, a public hearing, and congressional review. See 71 Fed. Reg. at 28,063. The Commission can also always resolve any dispute concerning

the application of particular commentary by amending

the text of the guidelines. Additionally, the Commission

has announced that one of its policy priorities for the

immediate future is a “[m]ultiyear study of the Guidelines Manual to address case law concerning the validity and enforceability of guideline commentary.” 87

Fed. Reg. 67,756, 67,756 (Nov. 9, 2022). The Commission has “lacked a quorum of voting members” in recent

years, Guerrant v. United States, 142 S. Ct. 640, 641

(2022) (statement of Sotomayor, J., respecting the denial of certiorari), but it has now returned to full

strength and is more than capable of resolving any important controversies in the application of the Guidelines, whether based on disagreement about the commentary or otherwise.

3. Finally, even if the question presented might otherwise warrant this Court’s review, this case would be

an unsuitable vehicle in which to address it because the

case is moot. Under Article III, an “actual controversy”

19

between the parties “ ‘must be extant’ ” through “ ‘all

stages’ ” of the litigation. Alvarez v. Smith, 558 U.S. 87,

92 (2009) (citation omitted). “A case becomes moot—

and therefore no longer a ‘Case’ or ‘Controversy’ for

purposes of Article III—‘when the issues presented are

no longer “live” or the parties lack a legally cognizable

interest in the outcome.’ ” Already, LLC v. Nike, Inc.,

568 U.S. 85, 91 (2013) (citation omitted).

Petitioner was released from prison during the pendency of his appeal. Pet. App. 3a n.1. Because petitioner challenges only the length of his sentence, not his

underlying conviction, his claim became moot upon the

completion of his term of imprisonment. See Lane v.

Williams, 455 U.S. 624, 631 (1982) (“Since respondents

elected only to attack their sentences, and since those

sentences expired during the course of these proceedings, this case is moot.”).

The completion of a criminal defendant’s sentence

during the pendency of proceedings will not normally

moot an appeal challenging the conviction because

criminal convictions generally have “continuing collateral consequences” beyond just the sentences imposed.

Spencer v. Kemna, 523 U.S. 1, 8 (1998). But that “presumption of collateral consequences” does not extend

beyond the conviction itself. Id. at 12. Therefore, when

a defendant challenges only the length of his term of

imprisonment, the completion of that prison term moots

an appeal unless the defendant can show that the challenged action continues to cause “collateral consequences adequate to meet Article III’s injury-in-fact requirement,” id. at 14, and that those consequences are

“ ‘likely to be redressed by a favorable judicial decision,’ ” id. at 7 (citation omitted).

20

Petitioner cannot make that showing here. The only

portion of petitioner’s sentence to which he is still subject is his two-year term of supervised release, which

will expire in December 2024. See Pet. App. 3a n.1. In

United States v. Johnson, 529 U.S. 53 (2000), this Court

held that a prisoner who serves too long a term of incarceration is not entitled to receive credit against his term

of supervised release. Id. at 54. This Court observed

that because supervised release and incarceration each

serve “distinct” objectives requiring different considerations, the two are not “interchangeable.” Id. at 59. Accordingly, a holding in this case that petitioner should

have had a lower advisory guidelines range, and potentially a shorter sentence, would not itself entitle petitioner to any relief from his term of supervised release.

Johnson noted that a prisoner who has been incarcerated beyond his proper term of imprisonment might

be able to persuade the sentencing court to exercise its

discretion to shorten the duration of the prisoner’s term

of supervised release under 18 U.S.C. 3583(e)(1), which

permits a court to do so “if it is satisfied that such action

is warranted by the conduct of the defendant released

and the interest of justice.” 529 U.S. at 60 (quoting 18

U.S.C. 3583(e)(1)). But as the Third Circuit has explained, “[t]he possibility that the sentencing court will

use its discretion to modify the length of [a defendant’s]

term of supervised release * * * is so speculative” that

it does not suffice to present a live case or controversy

with respect to a claim challenging only the length of

incarceration. Burkey v. Marberry, 556 F.3d 142, 149,

cert. denied, 558 U.S. 969 (2009); see Rhodes v. Judiscak, 676 F.3d 931, 934-935 (10th Cir.) (adopting

Burkey’s reasoning), cert. denied, 567 U.S. 935 (2012).

21

The court of appeals here nevertheless concluded

that petitioner’s case is not moot because his

“supervised-release term may be reduced if he succeeds

on appeal.” Pet. App. 3a n.1 (citing United States v. Salazar, 987 F.3d 1248, 1252 (10th Cir. 2021), cert. denied,

142 S. Ct. 321 (2022)). Other courts of appeals have similarly taken the view that the possibility that a sentencing court might exercise its discretion to reduce a defendant’s supervised-release term is sufficient to prevent his sentencing challenge from becoming moot upon

completion of his prison term. See, e.g., United States

v. Ketter, 908 F.3d 61, 66 (4th Cir. 2018); Pope v. Perdue,

889 F.3d 410, 414 (7th Cir. 2018); Levine v. Apker, 455

F.3d 71, 77 (2d Cir. 2006); Johnson v. Pettiford, 442 F.3d

917, 917-918 (5th Cir. 2006) (per curiam); Mujahid v.

Daniels, 413 F.3d 991 (9th Cir. 2005), cert. denied, 547

U.S. 1149 (2006).

But because “Article III jurisdiction is always an antecedent question,” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998), this Court would

have to address the mootness question—and resolve the

circuit conflict described above—before it could reach

the merits of petitioner’s claim regarding his sentencing

enhancement. At a minimum, that threshold complication makes this case an unsuitable vehicle in which to

address the question presented.

22

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

NICOLE M. ARGENTIERI

Acting Assistant Attorney

General

DANIEL N. LERMAN

Attorneys

DECEMBER 2023