United States v. Bond, 418 F.Supp.3d 121

Defendant David Bond pleaded guilty to two counts of distribution of heroin and one count of distribution of fentanyl under 21 U.S.C. § 841(a)(1).
At sentencing the Government sought designation as a career offender under U.S.S.G. § 4B1.1, which would have raised Bond’s base offense level from 12 to 32 and dramatically increased the Guidelines range.
The contested predicate was a prior state conviction for Attempt to Commit a Felony (Delivery of a Controlled Substance); the Government relied on Application Note 1 to § 4B1.2(b) treating inchoate offenses (including attempts) as "controlled substance offenses."
Bond objected, arguing § 4B1.2(b)’s plain text does not include inchoate offenses and Application Note 1 cannot add crimes the guideline text excludes.
The Court reviewed the circuit split, persuasive authority, and separation-of-powers concerns, and sustained Bond’s objection, holding the career-offender designation did not apply.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a prior attempt to distribute a controlled substance qualifies as a "controlled substance offense" under U.S.S.G. § 4B1.2(b) for career-offender status	Application Note 1 defines "controlled substance offense" to include attempts and inchoate offenses, so the prior attempt is a qualifying predicate	§ 4B1.2(b)’s text lists substantive offenses and does not include inchoate crimes; commentary cannot expand the guideline beyond its plain language	Court held Application Note 1 is inconsistent with § 4B1.2(b)’s plain text; inchoate offenses are not qualifying predicates, so career-offender designation did not apply

Stinson v. United States, 508 U.S. 36 (1993) (guideline commentary is authoritative unless inconsistent with guideline text)
Burgess v. United States, 553 U.S. 124 (2008) (definitions that declare what a term "means" exclude meanings not stated)
United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (commentary conflicts with § 4B1.2(b))
United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018) (commentary improperly expands definition of offense)
United States v. Dozier, 848 F.3d 180 (4th Cir. 2017) (held attempted distribution was a controlled substance offense but did not address commentary/text conflict)
United States v. McCollum, 885 F.3d 300 (4th Cir. 2018) (assumed commentary valid without addressing the textual conflict)
United States v. Adams, 934 F.3d 720 (7th Cir. 2019) (upheld commentary’s inclusion of inchoate offenses)
United States v. Crum, 934 F.3d 963 (9th Cir. 2019) (applied commentary due to circuit precedent)
United States v. Rollins, 836 F.3d 737 (7th Cir. 2016) (application notes are interpretations, not additions, to the Guidelines)