23 F.4th 347
4th Cir.2022Background
- In Oct. 2018 Lenair Moses sold two small quantities of crack (total 0.49 g), pleaded guilty to two § 841 counts, and faced sentencing.
- The PSR classified Moses as a career offender under U.S.S.G. § 4B1.1 based on two prior North Carolina felony drug convictions (2009 and 2013), raising his Guidelines range to 151–188 months; without the enhancement the range would be 21–27 months.
- Moses argued the 2013 conviction should be treated as relevant conduct under U.S.S.G. § 1B1.3(a)(2) (same course of conduct) rather than a prior sentence, relying on the text of § 4A1.2 and § 4B1.2(c).
- The government and the district court relied on Application Note 5(C) to § 1B1.3, which states that offense conduct associated with a sentence imposed prior to the acts constituting the instant offense is not relevant conduct; the district court applied that note, found Moses a career offender, but granted a downward variance to 120 months.
- On appeal Moses argued that Kisor v. Wilkie changed the deference owed to Guidelines commentary (overruling or limiting Stinson), so Application Note 5(C) is not controlling; he also challenged the substantive reasonableness of the 120-month sentence.
- The Fourth Circuit affirmed: it held that Stinson remains controlling for Sentencing Guidelines commentary (Application Note 5(C) is binding) and that the downward-variance 120-month sentence was not substantively unreasonable.
Issues
| Issue | Moses' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Kisor altered Stinson so Guidelines commentary receives deference only when a guideline is genuinely ambiguous | Kisor requires courts to apply Auer/Kisor limits; Application Note 5(C) is not entitled to controlling weight | Stinson remains applicable to Sentencing Commission commentary; Kisor governs executive agencies, not the Commission | Stinson continues to control; Application Note 5(C) is binding |
| Whether Application Note 5(C) excludes Moses’s 2013 conviction from being "relevant conduct" under § 1B1.3 | The 2013 conduct was part of the same course of conduct and thus should be relevant conduct, not a prior sentence | Application Note 5(C) excludes conduct associated with a sentence imposed prior to the instant offense; Moses was sentenced for 2013 conduct before committing the 2018 offenses | Application Note 5(C) applies; the 2013 conviction properly counted as a prior predicate for career-offender status |
| Whether the imposition of 120 months was substantively unreasonable | Sentence is excessive given under half gram of crack and concerns about mismatch between conduct and career-offender range | Court balanced § 3553(a) factors, granted a substantial downward variance from Guidelines range | Sentence was within district court’s discretion and not substantively unreasonable |
Key Cases Cited
- Stinson v. United States, 508 U.S. 36 (1993) (Guidelines commentary is authoritative and binding unless inconsistent with statute, Constitution, or the guideline)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (limits Auer deference: agency rule interpretations merit controlling weight only when a regulation is genuinely ambiguous and the agency’s reading is reasonable)
- Auer v. Robbins, 519 U.S. 452 (1997) (courts generally defer to an agency’s interpretation of its own rules)
- Williams v. United States, 503 U.S. 193 (1992) (policy statements in the Guidelines can be authoritative guidance)
- Booker v. United States, 543 U.S. 220 (2005) (Guidelines are advisory; sentencing must be individualized)
- Mistretta v. United States, 488 U.S. 361 (1989) (creation and congressional purpose of the Sentencing Commission)
- Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) (early precedent supporting deference to agency interpretations of their own rules)