69 F.4th 648
9th Cir.2023Background
- Roberto Castillo pleaded guilty to one count of conspiracy to distribute methamphetamine after multiple sales totaling ~178.1 grams.
- The PSR and district court treated Castillo’s conspiracy conviction as a "controlled substance offense" under U.S.S.G. §4B1.2(b) (relying on Application Note 1) and designated him a career offender under U.S.S.G. §4B1.1.
- The career-offender classification raised Castillo’s advisory Guidelines range from 151–188 months to 262–327 months; the district court sentenced him to 262 months.
- Application Note 1 to §4B1.2(b) expressly states that "controlled substance offenses" include aiding and abetting, conspiring, and attempting such offenses, while the guideline text lists substantive offenses (manufacture, import, export, distribution, dispensing, possession with intent).
- Ninth Circuit precedent (Vea‑Gonzales; Crum) had previously treated the commentary as authoritative; the Supreme Court’s Kisor decision narrowed Auer/Stinson deference and required courts to find genuine ambiguity before deferring to an agency’s interpretation.
- The Ninth Circuit panel held Kisor is intervening and controlling, concluded §4B1.2(b) unambiguously excludes inchoate offenses, rejected reliance on Application Note 1, vacated Castillo’s sentence, and remanded for resentencing.
Issues
| Issue | Castillo's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether a conviction for conspiracy to distribute is a "controlled substance offense" under U.S.S.G. §4B1.2(b) | §4B1.2(b)’s text lists only substantive drug offenses; commentary cannot expand unambiguous text to include inchoate crimes | Application Note 1 (commentary) permissibly includes inchoate offenses; Ninth Circuit precedent supports deference | §4B1.2(b) unambiguously excludes inchoate offenses; Application Note 1 is not controlling under Kisor; conspiracy is not a "controlled substance offense" for career‑offender purposes |
| Whether Kisor is an intervening Supreme Court decision permitting reexamination of Vea‑Gonzales/Crum | Kisor narrowed Auer/Stinson deference and requires application of traditional tools of construction; it is intervening and irreconcilable with prior Ninth Circuit deference | Prior Ninth Circuit panels (Vea‑Gonzales, Crum) bind this panel | Kisor is intervening and clearly irreconcilable with prior Ninth Circuit decisions that afforded broad deference to the commentary; those precedents are overruled to that extent |
| Standard of review for an unpreserved sentencing‑guideline issue (plain error vs de novo) | De novo review is appropriate for a purely legal question with no prejudice to the Government | Plain‑error review applies under Rule 52(b) | Court assumed without deciding de novo review but held the outcome would be the same under either standard |
| Whether deference to Application Note 1 raises constitutional/separation‑of‑powers concerns | Allowing commentary to expand Guidelines bypasses notice‑and‑comment and congressional review and risks excessive sentencing consequences | Commentary is within the Commission’s interpretive authority | Court expressed serious separation‑of‑powers concerns about deferring to commentary that effectively amends unambiguous Guidelines, supporting its statutory‑textual conclusion |
Key Cases Cited
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (Supreme Court limited Auer/Stinson deference: a rule must be genuinely ambiguous and courts must exhaust traditional tools before deferring)
- Stinson v. United States, 508 U.S. 36 (1993) (commentary to the Guidelines is authoritative unless plainly erroneous or inconsistent with the guideline)
- United States v. Vea‑Gonzales, 999 F.2d 1326 (9th Cir. 1993) (earlier Ninth Circuit held commentary and guideline to be consistent regarding inchoate offenses)
- United States v. Crum, 934 F.3d 963 (9th Cir. 2019) (applied Stinson to treat Application Note 1 as authoritatively expanding §4B1.2(b))
- United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (post‑Kisor: §4B1.2(b) unambiguously excludes inchoate offenses; commentary not controlling)
- United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (post‑Kisor overruling of prior circuit precedent; held inchoate offenses not included in §4B1.2(b))
- United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018) (pre‑Kisor decision rejecting commentary expansion under Stinson)
- United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (held commentary may not be used to add attempt crimes to §4B1.2(b))
- Mistretta v. United States, 488 U.S. 361 (1989) (upholding the Sentencing Commission’s structure but noting congressional oversight and review)
- United States v. O’Brien, 52 F.3d 277 (9th Cir. 1995) (addressed statutory penalties for conspiracy but did not resolve commentary‑vs‑text authority issue)