74 F.4th 673
5th Cir.2023Background
- Andres Vargas attempted to buy 5 kilograms of cocaine from an undercover agent, was arrested, and pled guilty to conspiracy to possess with intent to distribute (21 U.S.C. §§ 846, 841).
- Vargas had two prior drug convictions: (1) possession with intent to distribute amphetamine; and (2) conspiracy to possess/manufacture methamphetamine with intent to distribute.
- The district court applied the career-offender enhancement under U.S.S.G. § 4B1.1 based on three "controlled substance offenses," raising Vargas’s Guidelines range from ~100–125 months to 188–235 months and sentenced him to 188 months.
- Vargas challenged the career-offender designation, arguing § 4B1.2(b)’s text (defining “controlled substance offense”) does not include inchoate offenses (conspiracy/attempt) and thus the Commentary’s inclusion (Application Note 1) is inconsistent and not controlling.
- The Fifth Circuit sitting en banc held that (1) Stinson v. United States governs deference to Guidelines commentary and the commentary is not inconsistent with § 4B1.2(b), and (2) even under Kisor’s framework the Commentary reasonably interprets a genuinely ambiguous guideline; the sentence was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Stinson or Kisor governs deference to Sentencing Commission commentary | Government: Stinson still controls; commentary is authoritative; if Kisor applies it doesn’t change result | Vargas: Kisor diminished Stinson deference, so commentary should receive less weight | Court: Stinson remains controlling; even if Kisor applied, result same — defer to commentary |
| Whether § 4B1.2(b)’s definition of “controlled substance offense” includes conspiracies/attempts | Government: §4B1.2(b) is silent on inchoates and the Commentary validly includes them; following Commentary does not violate the guideline | Vargas: Text excludes inchoates by omission (expressio unius); Commentary improperly adds offenses to the definition | Court: Commentary is not “flatly inconsistent” with §4B1.2(b); inchoate offenses are included |
| If Kisor applies, whether the guideline is genuinely ambiguous and the Commentary is reasonable and entitled to deference | Government: Text/structure/history/purpose show ambiguity; Commentary is the Commission’s fair, considered judgment and reasonable | Vargas: Text is clear; Commentary adds to the guideline and is unreasonable | Court: Under Kisor the guideline is genuinely ambiguous; Commentary satisfies Kisor’s preconditions and is reasonable — deference warranted |
| Whether the rule of lenity requires resolving ambiguity in Vargas’s favor | Vargas (raised by some dissenters): lenity should apply to Guidelines ambiguity and favor defendant | Government: Guidelines are advisory, lenity inapplicable; even if lenity applies, ambiguity not "grievous" | Court: Lenity likely does not apply to purely advisory Guidelines; even if it did, ambiguity here is not grievous, so it does not change outcome |
Key Cases Cited
- Stinson v. United States, 508 U.S. 36 (1993) (holds Guidelines commentary is authoritative unless unconstitutional, statutory violation, or plainly erroneous/inconsistent with the guideline)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (clarifies Auer/Seminole Rock deference: must find genuine ambiguity, exhaust traditional tools, and ensure agency reading is reasonable and official)
- Booker v. United States, 543 U.S. 220 (2005) (holds the Guidelines are advisory after restitution to Sixth Amendment concerns)
- United States v. Lightbourn, 115 F.3d 291 (5th Cir. 1997) (Fifth Circuit precedent treating inchoate offenses as qualifying for career-offender enhancement)
- United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc) (applies Kisor to Guidelines commentary and holds Commentary cannot add inchoate offenses to §4B1.2(b))
- United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (concludes §4B1.2(b) does not include inchoate offenses and Commentary is inconsistent)
- United States v. Smith, 989 F.3d 575 (7th Cir. 2021) (upholds Commentary and counts inchoate offenses toward §4B1.2(b) under Stinson)
- United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018) (reads §4B1.2(b) as excluding inchoate offenses; criticizes Commentary as adding to the guideline)