United States v. Trey Campbell, 22 F.4th 438

Trey Cardale Campbell was convicted in federal court of possession with intent to distribute opiates and received a career-offender enhancement under U.S.S.G. §4B1.1 based on two prior "controlled substance offense" convictions.
The two predicates the district court relied on were: (1) a West Virginia conviction under a statute whose least culpable conduct is an attempted delivery of a controlled substance; and (2) a federal conviction for aiding and abetting distribution near a school.
The career-offender enhancement raised Campbell’s Guidelines range from 63–78 months to 210–240 months; the district court imposed a 180-month sentence and overruled Campbell’s objection that attempt convictions are not covered by U.S.S.G. §4B1.2(b).
Campbell appealed, arguing an attempt offense cannot qualify as a "controlled substance offense" under the Guideline definition; the Fourth Circuit reviews the question de novo.
The Fourth Circuit held that the text of U.S.S.G. §4B1.2(b) (which uses “means” and enumerates substantive offenses) does not include inchoate attempts, the Sentencing Commission’s Commentary that adds attempts is inconsistent with the Guideline, and Stinson/Auer-style deference does not rescue the Commentary (especially after Kisor). The court vacated Campbell’s sentence and remanded for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an attempt conviction qualifies as a "controlled substance offense" under U.S.S.G. §4B1.2(b)	Campbell: an "attempt" is not within the Guideline’s text and thus cannot serve as a predicate	Government: Commentary to §4B1.2(b) expressly includes attempt, so it qualifies	Attempt convictions are not "controlled substance offense[s]" under §4B1.2(b); Commentary conflicts with the Guideline and cannot be applied
Whether existing Fourth Circuit precedent binds the court to treat inchoate offenses as predicates	Campbell: no controlling precedent resolves this issue; prior cases are distinguishable	Government: prior Fourth Circuit decisions support treating inchoate offenses as predicates	Prior Fourth Circuit authority does not bind here; earlier decisions are inapposite and undermined by Kisor where relevant
Whether the statutory word "prohibits" or silence in §4B1.2(b) permits the Commentary to add inchoate offenses	Campbell: "prohibits" and the Guideline’s use of "means" and specific enumeration exclude attempts; rule of lenity favors defendant	Government: "prohibits" implicitly covers attempts or, because the Guideline does not expressly exclude inchoate offenses, Commentary may supply them	Court rejects the Government’s readings: "prohibits" does not sweep in attempts; Commentary cannot add offenses omitted from an unambiguous Guideline; rule of lenity and separation-of-powers concerns support defendant

Stinson v. United States, 508 U.S. 36 (treatise-like Commentary is authoritative unless inconsistent with the Guideline, statute, or Constitution)
Kisor v. Wilkie, 139 S. Ct. 2400 (limits Auer/Seminole Rock deference and requires genuine ambiguity and exhaustion of traditional tools)
United States v. Winstead, 890 F.3d 1082 (D.C. Cir. holding Commentary added attempt contrary to Guideline text)
United States v. Havis, 927 F.3d 382 (6th Cir. en banc concluding Commentary cannot add attempt to §4B1.2(b))
United States v. Nasir, 982 F.3d 144 (3d Cir. en banc agreeing Commentary conflicts with §4B1.2(b))
Keck v. United States, 172 U.S. 434 (historical rule that statutes naming substantive offenses do not necessarily cover attempts)
United States v. Mistretta, 488 U.S. 361 (discusses the Sentencing Commission’s role and the limits of nonlegislative rulemaking)