UNITED STATES OF AMERICA v. ANTOINETTE ADAIR, Appellant
No. 20-1463
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
June 30, 2022
PRECEDENTIAL. On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2:16-cr-00259-001). District Judge: Honorable Mark R. Hornak. Argued: April 28, 2021. Before: SMITH, Chief Judge, PHIPPS, and ROTH, Circuit Judges.
* Judge Smith was Chief Judge when this appeal was argued. Judge Smith completed his term as Chief Judge and assumed senior status on December 4, 2021.
Donovan J. Cocas [ARGUED]
Laura S. Irwin
UNITED STATES ATTORNEY’S OFFICE
WESTERN DISTRICT OF PENNSYLVANIA
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for United States of America
Julie A. McGrain [ARGUED]
OFFICE OF FEDERAL PUBLIC DEFENDER
DISTRICT OF NEW JERSEY
800-840 Cooper Street, Suite 350
Camden, NJ 08102
Counsel for Antoinette Adair
PHIPPS, Circuit Judge.
For several years, Antoinette Adair pushed pills in Pittsburgh. She was arrested and later pleaded guilty to a ten-count indictment for her role in illegally distributing prescription painkillers. In calculating Adair’s sentence, the District Court increased her offense level by four points for being an organizer or leader of extensive criminal activity. See
In this appeal, Adair disputes the initial Guidelines range for her imprisonment. She argues that the District Court erred by applying a four-point increase for the organizer-leader enhancement. She also contends that the District Court should have compelled the government to move for a one-point reduction for acceptance of responsibility. For the reasons below, we will affirm the District Court’s judgment of sentence.
BACKGROUND
Adair gained access to prescription opiate pills as a treatment for back pain. A physician prescribed her 300 opioid pills per month (240 oxycodone and 60 oxymorphone), and she became addicted.
Despite her addiction, Adair recognized that a broader market existed for prescription pills. She convinced her mother and her sister to obtain opiate painkillers from the same physician. After that doctor pleaded guilty to illegally distributing controlled substances in 2012, Adair found other physicians who would overprescribe opioid pills.
For the next several years, Adair participated in and coordinated transactions for prescription pills. At one point, she had twelve people in her network of suppliers who would obtain prescriptions and acquire opioid pills. Adair coordinated the distribution and sale of those pills to addicts, including herself, as well as to a drug dealer who oversaw a much larger pill-distribution network. She decided when and where sales would occur, and she had oversight over her suppliers, referring to some of them as her sons. She also made drug deliveries herself, occasionally with one of her buyers serving as a chauffeur and bodyguard.
Adair was also adept at responding to the vicissitudes of the prescription-pill black market. With respect to the drug dealer who oversaw a larger pill network, she would, when necessary, front him pills or provide extra pills for free when he could not afford to purchase her full supply. When he needed a new gun, she offered to find him one. Adair also demonstrated responsiveness and flexibility with her addict clients. She would arrange for them to buy from other drug dealers when she had no pills for them. Similarly, she advised one of her suppliers on whether to report a gun offered as collateral for drugs as stolen. But she accommodated only so much: on one occasion, Adair threatened and pointed a gun at a confidential informant for shorting her the amount owed for pills.
After her arrest in December 2016, Adair’s pill-distribution operation came to an end. In January 2018, she pleaded guilty to a ten-count indictment for violating multiple federal statutes:
After briefing and a two-day hearing, the District Court fixed the Guidelines range for Adair between 188 and 235 months’ imprisonment. That calculation included a four-point increase in the offense level for the organizer-leader enhancement. See
Ultimately, the District Court varied downward from that Guidelines range. Due to her personal opioid addiction and post-plea rehabilitation, the District Court sentenced her to 168 months’ imprisonment. Adair timely appealed that sentence, bringing this matter within this Court’s appellate jurisdiction. See
DISCUSSION
Adair disputes the District Court’s calculation of her Guidelines range on two grounds. She argues first that the District Court miscalculated that range by increasing her offense level by four points for being an organizer or leader of extensive criminal activity under
I. The Organizer-Leader Enhancement in Guideline § 3B1.1(a)
The application of the organizer-leader enhancement hinges upon the meaning of the terms ‘organizer’ and ‘leader’ as used in
A. The Stinson Paradigm and Auer Deference
The Supreme Court has established a general paradigm for the relationship between the Sentencing Guidelines and the Commission’s interpretive commentary. Under that paradigm, formulated in Stinson v. United States, 508 U.S. 36 (1993), Guidelines drafted by the Commission are treated as legislative rules,1 and the Commission’s comments interpreting the Guidelines are viewed as interpretive rules.2 The paradigm applies only to the
The Stinson paradigm provides only half of the framework for analyzing the Commission’s interpretive commentary; the other half requires determining the weight that such commentary should receive. When the Supreme Court decided Stinson, an agency’s interpretation of its own legislative rule received Seminole Rock deference, later known as Auer deference. See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945); Auer v. Robbins, 519 U.S. 452 (1997). Such deference gave controlling weight to an agency’s interpretation of its own regulation unless the interpretation was “plainly erroneous or inconsistent with the regulation.” Stinson, 508 U.S. at 45 (quoting Seminole Rock, 325 U.S. at 414); see also Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 110 (2015) (Scalia, J., concurring in judgment) (“Interpretive rules that command deference do have the force of law.“). Thus, the application of Auer deference within the Stinson paradigm required courts to defer to the Commission’s commentary for a Guideline unless that interpretation was plainly erroneous or inconsistent with the Guideline. See Stinson, 508 U.S. at 47; see also
Although the Stinson paradigm has not changed, the Supreme Court reprised Auer deference in Kisor v. Wilkie, 139 S. Ct. 2400 (2019). That decision made clear that for Auer deference to apply, “a court must exhaust all the ‘traditional tools’ of construction,” id. at 2415 (quoting Chevron U.S.A. Inc. v. Nat. Res. Def. Council Inc., 467 U.S. 837, 843 n.9 (1984)), and determine that the regulation is “genuinely ambiguous,” id. at 2414. Under this approach, a court must consider the “text, structure, history, and purpose of a regulation, in all the ways it would if it had no agency to fall back on.” Id. at 2415.
Kisor did more than render Auer deference “a doctrine of desperation.” INS v. Cardoza-Fonseca, 480 U.S. 421, 454 (1987) (Scalia, J., concurring in the judgment) (opining that Chevron deference should not be “a doctrine of desperation“). In addition, before affording controlling deference to an agency’s interpretation of a genuinely ambiguous regulation, a court must make an “independent inquiry” into the “character and context” of the reasonable interpretations of the regulation, i.e., those within the “zone of ambiguity.” Kisor, 139 S. Ct. at 2416. As guideposts, the Supreme Court identified three character-and-context circumstances in which an agency’s otherwise reasonable interpretation should not receive controlling weight. See id. at 2416–17. Those occur when an agency’s interpretation is not its “‘authoritative’ or ‘official position,’” id. (quoting United States v. Mead Corp., 553 U.S. 218, 257 (2001) (Scalia, J., dissenting)), when the agency’s interpretation does not implicate its “substantive expertise” in some way, id. at 2417, and when the agency’s reading does not reflect its “fair and considered judgment” but rather is a “convenient litigating position,” a “post hoc rationalization,” id. (quoting Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012) (alteration omitted)), or a parroting of a federal statute, see id. at 2417 n.5 (citing Gonzales v. Oregon, 546 U.S. 243, 257 (2006)). In sum, under Kisor, a genuine ambiguity in an agency’s regulation is necessary for Auer deference, but it is not sufficient: the character and context of an agency interpretation that falls within the regulation’s zone of ambiguity must also counsel in favor of deference. Kisor, 139 S. Ct. at 2415–18.
After Kisor, this Court, sitting en banc, unanimously concluded that the reprised standard for Auer deference applied to the Commission’s interpretive commentary. See Nasir, 17 F.4th at 470–71. With that new understanding, prior caselaw that had afforded Auer deference to the Commission’s interpretive commentary without engaging in the Kisor process does not automatically retain its controlling force. See id. Rather, to remain binding, such a decision must have (presciently) complied with the Kisor process: a genuine-ambiguity analysis followed by an independent evaluation of the character and context of the agency’s interpretation, provided that the agency’s interpretation falls within the Guideline’s zone of ambiguity. See id. at 471–72.
Because the Commission promulgated
B. A Post-Kisor, Post-Nasir Interpretation of the Organizer-Leader Enhancement in Guideline § 3B1.1(a)
Before Kisor and Nasir, this Court had interpreted the organizer-leader enhancement in
the Commission’s interpretive commentary, which treated organizers and leaders interchangeably and used a multi-factor test to determine the applicability of the enhancement.5
1. Text
Words and phrases in the text of
If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.
At the outset, several dictionary definitions for the terms ‘organizer’ and ‘leader’ do not fit the context of the organizer-leader enhancement. As used in
After excluding those and other contextually inappropriate definitions, the remaining dictionary definitions of ‘organizer’ and ‘leader’ provide a foundation for the meaning of those terms as used in
‘leader’ referred to “a person who by force of example, talents, or qualities of leadership plays a directing role [or] wields commanding influence.”10
Other textual aspects of
phrases,”13 or even a “correction or greater exactness of phrasing or meaning.”14 See Honig v. Doe, 484 U.S. 305, 334 (1998) (Scalia, J., dissenting) (identifying the multiple common definitions of the term ‘or’). Under those meanings, the terms ‘organizer’ and ‘leader’ would either be synonymous, or the subsequent term, ‘leader’ would provide greater exactness to the meaning of the term ‘organizer.’ But under their common ordinary meaning, the terms ‘organizer’ and ‘leader’ were neither synonyms nor alternatives; thus, the first definition of ‘or’ as a disjunctive conjunction befits
2. Structure
The structure of
and the criminal activity involved five or more participants or was otherwise extensive.”
That structure, coupled with subsection (b)’s specification that organizers and leaders are exclusive of managers and supervisors, gives additional dimension to those terms. The greater enhancement for organizers and leaders in subsection (a) suggests that they have greater culpability than managers16 or supervisors.17 See
culpable than a manager or supervisor, a leader must have a
Another aspect of comparative structure of subsections (a) and (b) presents a minor wrinkle: contrary to the consistent-usage canon,18 the term ‘or’ is used differently in those subsections. In subsection (a), the term ‘or’ joins separate concepts, ‘organizer’ and ‘leader.’ See
(quoting Md. Cas. Co. v. W.R. Grace & Co., 128 F.3d 794, 799 (2d Cir. 1997) (“[T]erms in a document, especially terms of art, normally have the same meaning throughout the document.“). And the everyday word ‘or’ is not a term of art. Also, the frequency of the use of the word ‘or’ in the English language along with its lack of ready synonyms further excuses its different uses in subsections (a) and (b).
3. Purpose
In the background commentary for
4. History
The history of
Without any intervening amendments, there is no basis to consider revisiting the dictionary definitions of ‘organizer’ and ‘leader’ from the time of
The text, structure, purpose, and history of
D. The District Court’s Factual Findings Support the Application of the Organizer-Leader Enhancement.
Applying the post-Kisor, post-Nasir understanding of
The record contains evidence that Adair was an organizer. She set up a network in which persons obtained prescriptions, filled those, and then coordinated with her to distribute pills. She used her self-described “potent” “hustle skills” to recruit persons to obtain those prescriptions, and at one point, she had twelve people, including her mother and sister, doing so. Tr. of Antoinette Adair Phone Call to William Richardson (App. 98). As she saw herself, she was a “producer” who set up the operation. Tr. of Antoinette Adair Phone Call to William Richardson (Mar. 12, 2016) (App. 224–25). Because her efforts gave functional structure to a coordinated opiate distribution scheme that involved at least five participants, Adair qualifies as an organizer. See
The District Court’s application of the organizer-leader enhancement can also be sustained on the ground that Adair was a leader of extensive criminal activity. Although the terms ‘organizer’ and ‘leader’ are separate, they are not wholly distinct, and when an organizer retains control over the functional structure for criminal activity that he or she coordinated, that evidences high-level directive power or influence over criminal activity needed for the leader enhancement. Not only did Adair retain control over the prescription-pill scheme that she coordinated, but also she made high-level decisions essential to its continued operation. When she learned that the physician who wrote prescriptions for her suppliers “was going down,” she found another doctor to do so. Tr. of Antoinette Adair Phone Call to William Richardson (App. 98). In addition, Adair decided when and where sales would occur, and she often coordinated drug sales with various men whom she oversaw like sons. She had an elevated position in the criminal activity and used others to chauffeur her
Adair counters that she was simply a broker or a mere middleman in a larger criminal enterprise. Some of her conduct is consistent with those roles. She nurtured and protected her relationships with her suppliers by, in her words, “[w]ining and dining em, and taking care of their kids.” Tr. of Antoinette Adair Phone Call to William Richardson (App. 98). And Adair was not the largest drug dealer in town; she worked with another dealer who oversaw a much larger distribution network. But having those client-management skills and a relationship with a larger-scale drug dealer does not preclude Adair from also being a leader. To the contrary, those factors, together with her strategic operational decisions confirm the high-level control that she had over the prescription-pill scheme that she organized. For these reasons, the
II. The Additional One-Point Reduction for Acceptance of Responsibility Under Guideline § 3E1.1(b)
As a separate challenge to the calculation of her offense level, Adair argues that the government should have moved for an additional one-point reduction for acceptance of responsibility. The District Court decreased Adair’s offense level by two points under
of-responsibility reduction. Her challenge fails for the reasons below.
A. Argument Preservation and the Standard of Review
As an initial matter, the parties dispute whether Adair preserved the
The plain-error standard, however, is not entirely distinct from the other standards of appellate review. The first prong of plain-error review examines whether a district court erred. See United States v. Jabateh, 974 F.3d 281, 298 (3d Cir. 2020) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)). For purposes of that prong, the difference between preserved and unpreserved error is immaterial: in
Those principles apply here. As explained below, the District Court did not err in declining to compel the government to move for an acceptance-of-responsibility reduction. Because there was no error, it is unnecessary to decide the preservation issue: regardless of whether Adair preserved her argument, she cannot prevail.
B. Guideline § 3E1.1 Before and After Legislative Amendment
Adair‘s challenge focuses on the meaning and scope of Guideline § 3E1.1, which allows for a downward adjustment when a defendant accepts responsibility for an offense. That Guideline has been modified several times since its initial promulgation by the Commission in 1987, and some of those amendments are significant here.
In its original form, Guideline § 3E1.1 allowed a sentencing court to reduce a criminal defendant‘s offense level by two points upon a defendant‘s clear demonstration of “a recognition and affirmative acceptance of personal responsibility for the offense of conviction.”
But the Commission must periodically review and revise the Guidelines, see
Through this process, in 1992, the Commission amended Guideline § 3E1.1 to allow
In late 2001 and early 2002, the Commission attempted to amend § 3E1.1 again. See Sentencing Guidelines for United States Courts, 66 Fed. Reg. 59330, 59337–38 (Nov. 27, 2001). The Commission proposed retracting one of the additions from the 1992 Amendments by eliminating the complete-information basis for demonstrating assistance to authorities. See id.; see also
After completing the notice-and-comment process,25 the Commission held a public meeting to determine whether to submit the proposed amendment to Congress. See Notice of Public Meeting of the United States Sentencing Commission (Apr. 5, 2002).26 At that meeting, however, a Vice Chair of the Commission opposed the motion to amend Guideline § 3E1.1(b), and it did not receive a second vote. See id. Without a successful motion, the Commission did not submit the proposed amendment to Congress and did not promulgate the amendment. See id.
In 2003, Congress addressed that failed amendment through § 401 of the PROTECT Act. That legislation amended
But § 401 went further than the Commission‘s failed proposal. Section 401 also effectuated a structural change to the third-point acceptance-of-responsibility reduction. Before the § 401 amendments, the sentencing court decided the appropriateness of the additional one-point reduction. See United States v. Drennon, 516 F.3d 160, 161 (3d Cir. 2008);
Because the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial, an adjustment under subsection (b) may only be granted upon a formal motion by the Government at the time of sentencing.
Id. § 401(g)(2)(B) (emphasis added). Finally, to preserve these modifications from later periodic revision by the Commission, § 401 expressly prohibited the Commission from altering or repealing the legislative amendments to the acceptance-of-responsibility reduction:
At no time may the Commission promulgate any amendment that would alter or repeal the amendments made by subsection (g) of this section.
Id. § 401(j)(4); see also id. § 401(g) (amending § 3E1.1(b) and Application Note 6).
Despite that congressional command, about ten years later, the Commission promulgated Amendment 775. That amendment added a sentence to Application Note 6 that limited the government‘s discretion for withholding a § 3E1.1 motion:
The government should not withhold such a motion based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal.
In its study of the PROTECT Act, the Commission could discern no congressional intent to allow decisions under § 3E1.1 to be based on interests not identified in § 3E1.1.
Sentencing Guidelines for United States Courts, 78 Fed. Reg. 26425, 26432 (May 6, 2013). In adding that commentary to Note 6, the Commission did not address whether Amendment 775 conflicted with § 401‘s prohibition on modifying
C. Amendment 775 Does Not Control § 3E1.1(b) Motions.
Adair‘s challenge to the third-point reduction rests on Amendment 775. She argues that the government violated Amendment 775 by withholding a § 3E1.1(b) motion for reasons other than the timeliness of her guilty plea. If Amendment
First, Amendment 775 violates § 401(j)(4) of the PROTECT Act, which prevents the Commission from altering or repealing Congress‘s amendments to § 3E1.1(b). The § 401 amendments identify only one circumstance in which the government can move for the third-point reduction for acceptance of responsibility: a defendant‘s timely notice of an intention to enter a guilty plea. See PROTECT Act § 401(g)(1)). But the § 401 amendments do not compel the government to make such a motion under that circumstance – or any other. See id. Thus, the § 401 amendments leave the decision to make a § 3E1.1(b) motion to the government‘s discretion. See Drennon, 516 F.3d at 162–63. Amendment 775 trespasses into that field of discretion by allowing the government to withhold such a motion only when a defendant does not give timely notice of an intention to enter a guilty plea. See
Second, Amendment 775 exceeds the Commission‘s delegated powers. Through the commentary added by Amendment 775, the Commission purports to govern the discretion of a cabinet-level agency – the Department of Justice and each of its prosecuting component agencies – with respect to the third-point reduction for acceptance of responsibility. Yet nothing in Congress‘s delegation of “significant discretion” to the Commission, Mistretta v. United States, 488 U.S. 361, 377, 379 (1989), suggests that the Commission has power greater than the Attorney General such that it may direct the exercise of the Department of Justice‘s prosecutorial discretion. Compare
Third, even overlooking its other fatal shortcomings, Amendment 775 would still not merit controlling weight. The Guideline that Amendment 775 attempts
Several of our sister circuits have nonetheless treated Amendment 775 as controlling.28 Even apart from the reasons above, which none of those courts contemplated, Amendment 775 cannot have any traction in this Circuit. That is so because, before the Commission issued Amendment 775, this Court, in United States v. Drennon, 516 F.3d 160 (3d Cir. 2008), interpreted the PROTECT Act‘s modifications to § 3E1.1(b). In analyzing the scope of the government‘s discretion in making a motion under § 3E1.1(b), Drennon examined several sources: the text of the amendment, the congressional amendment to Application Note 6, and the Supreme Court‘s analysis of a textually and structurally similar guideline. See Drennon, 516 F.3d at 161–63; see also Wade v. United States, 504 U.S. 181, 185–86 (1992) (analyzing the government‘s discretion in making a substantial-assistance motion under Guideline § 5K1.1). From its consideration of those sources, Drennon held that the government can withhold a § 3E1.1(b) motion so long as it does not have an unconstitutional motive for doing so. See Drennon, 516 F.3d at 162–63; see also id. at 162 (“The relevant text of § 3E1.1(b) tracks that of
D. The Record Lacks Evidence that the Government Withheld a § 3E1.1(b) Motion for an Unconstitutional Motive.
Because Amendment 775 has no legal force in this Circuit, the only remaining inquiry concerns whether, by withholding the § 3E1.1(b) motion, the government violated Drennon‘s unconstitutional-motive standard. The government acts with unconstitutional motive when it withholds a § 3E1.1(b) motion based on a defendant‘s race, religion, or gender, or “when its refusal to move was not rationally related to any legitimate government end.” Drennon, 516 F.3d at 162–63 (internal quotation marks omitted) (quoting United States v. Abuhouran, 161 F.3d 206, 212 (3d Cir. 1998)); see also Wade, 504 U.S. at 185–86.
Here, Adair has no evidence, much less evidence amounting to a “substantial threshold showing,” that the government acted with an unconstitutional motive. Wade, 504 U.S. at 186; see also id. (explaining that “a defendant has no right to discovery or an evidentiary hearing unless he make a substantial threshold showing” of an improper motive (internal quotation marks omitted)). Rather, as the government explained, it refused to make the § 3E1.1(b) motion because Adair caused it to have to prepare for a two-day sentencing hearing. The government‘s position reflects the additional leverage that Congress – as a policy choice – imparted to it through the conferral of discretion over § 3E1.1(b) motions. But using the third-point reduction as a bargaining chip to resolve sentencing disputes is not an unconstitutional motive, and thus Adair cannot prevail in her effort to compel the government to make a § 3E1.1(b) motion.
CONCLUSION
For the foregoing reasons, we will affirm the judgment of sentence.