United States v. Brandon Romel Dupree, 57 F.4th 1269

Brandon Dupree pleaded guilty to (1) being a felon in possession of a firearm, (2) conspiracy to possess with intent to distribute heroin and cocaine (21 U.S.C. § 846), and (3) carrying a firearm in furtherance of a drug-trafficking offense.
The PSR counted Dupree’s § 846 conspiracy conviction as a “controlled substance offense,” making it his third qualifying predicate and triggering the Sentencing Guidelines’ career-offender enhancement (§§ 4B1.1–4B1.2).
With the enhancement Dupree’s Guidelines range rose substantially; the district court applied the enhancement, varied downward, and sentenced him to 106 months.
Dupree appealed, arguing § 4B1.2(b)’s text unambiguously excludes inchoate offenses (conspiracy/attempt), so the Application Note that includes inchoates is not binding.
The Court, sitting en banc, held that § 4B1.2(b) unambiguously excludes inchoate offenses and—applying Kisor’s clarified deference framework—refused to defer to Application Note 1; Dupree’s career-offender designation was vacated and the case remanded for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an inchoate offense (e.g., conspiracy under 21 U.S.C. § 846) qualifies as a “controlled substance offense” under U.S.S.G. § 4B1.2(b)	Dupree: § 4B1.2(b)’s plain text defines offenses that “prohibit” manufacture/import/distribution or possession with intent and omits inchoate crimes, so conspiracy/attempt are excluded.	Government: The Guideline is ambiguous ("prohibits" can mean to prevent/hinder), so Application Note 1 (which explicitly includes conspiracy/attempt) controls under Stinson.	Held: § 4B1.2(b) unambiguously excludes inchoate offenses; conspiracy/attempt do not qualify as controlled substance offenses.
Whether courts should defer to Sentencing Commission commentary (Stinson) after Kisor	Dupree: Kisor requires courts to treat commentary like agency interpretations — defer only if the guideline is genuinely ambiguous after exhausting interpretive tools.	Government: Stinson still binds and requires deference to commentary unless it is plainly erroneous or inconsistent.	Held: Kisor’s clarification applies; commentary is not binding when the guideline text is unambiguous. Prior Eleventh Circuit decisions to the contrary are overruled to the extent inconsistent.

Stinson v. United States, 508 U.S. 36 (1993) (held Guidelines commentary is authoritative unless contrary to law or plainly erroneous)
Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (clarified Auer deference: only apply when regulation is genuinely ambiguous after traditional tools)
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) (seminal formulation of deference to an agency’s interpretation of its own regulation)
Auer v. Robbins, 519 U.S. 452 (1997) (reaffirmed Seminole Rock deference)
Burgess v. United States, 553 U.S. 124 (2008) (interpretive principle: a definition stating what a term “means” excludes other meanings)
Salinas v. United States, 547 U.S. 188 (2006) (held simple possession is not a predicate controlled-substance-offense for certain federal statutes)
United States v. Weir, 51 F.3d 1031 (11th Cir. 1995) (prior Eleventh Circuit holding that conspiracy qualifies as a controlled substance offense)
United States v. Smith, 54 F.3d 690 (11th Cir. 1995) (applied Stinson to treat Application Note 1 as binding interpretation)
United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (held § 4B1.2(b) does not include attempt; commentary cannot add offenses not in guideline)
United States v. Nasir, 17 F.4th 459 (3d Cir. en banc 2021) (analyzed § 4B1.2(b) as unambiguously excluding inchoate offenses)