UNITED STATES OF AMERICA v. JENNIFER RICCARDI
No. 19-4232
United States Court of Appeals for the Sixth Circuit
Argued: December 1, 2020; Decided and Filed: March 3, 2021
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 21a0054p.06. Before: DAUGHTREY, NALBANDIAN, and MURPHY, Circuit Judges.
Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:18-cr-00740-1—John R. Adams, District Judge.
COUNSEL
ARGUED: Jeffrey C. Rager, RAGER LAW FIRM, PLLC, Lexington, Kentucky, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY‘S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Jeffrey C. Rager, RAGER LAW FIRM, PLLC, Lexington, Kentucky, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY‘S OFFICE, Cleveland, Ohio, for Appellee.
MURPHY, J., delivered the opinion of the court in which DAUGHTREY, J., joined. NALBANDIAN, J. (pp. 18-23), delivered a separate opinion concurring in part and in the judgment.
MURPHY, Circuit Judge. Jennifer Riccardi, a postal employee, pleaded guilty to stealing 1,505 gift cards from the mail. Most of these gift cards had an average value of about $35 for a total value of about $47,000. The Sentencing Guidelines directed the district court to increase Riccardi‘s guidelines range based on the amount of the “loss.”
Riccardi challenges the use of this $500 minimum loss amount, which comes from the Sentencing Commission‘s commentary to
I
In September 2017, an Ohioan mailed a $25 Starbucks gift card from the City of Mentor in northeast Ohio. The gift card never reached its destination at an address in nearby Parma. The sender complained to the U.S. Postal Service, which opened an investigation. Investigators learned that supervisors at a Cleveland distribution center had been finding lots of opened mail in the processing area. The investigation led to an employee at the center: Jennifer Riccardi. When confronted, Riccardi admitted that she had been stealing mail that might contain cash or gift cards. A search of Riccardi‘s home revealed that she had been doing so for quite some time. It uncovered over 100 pieces of mail that she had taken just that day, $42,102 in cash, and 1,505 gift cards. The gift cards were laid out on the floor of Riccardi‘s home organized by the 230 or so merchants at which they could be redeemed.
Riccardi pleaded guilty to three counts: possessing stolen mail in violation of
Riccardi‘s presentence report determined her guidelines range using
At sentencing, Riccardi objected to the use of this $500 minimum loss amount because most of the stolen gift cards were worth a fraction of that amount. The district court overruled her objection. After considering the sentencing factors, it imposed a sentence near the top of the guidelines range: 56 months’ imprisonment. The court also ordered Riccardi to pay $89,102 in restitution, an amount that included the $42,102 in cash found at her home and the value of the gift cards ($47,000). The court ordered this restitution even though Riccardi had already forfeited the cash and gift cards to the government. It reasoned that forfeiture and restitution were distinct obligations.
Riccardi raises two challenges on appeal. She argues that the district court should not have applied the $500 minimum loss
II. “Loss” Amount
The guideline for theft offenses—
The government bears the burden to prove the amount of the loss by a preponderance of the evidence. See, e.g., United States v. Jones, 641 F.3d 706, 712 (6th Cir. 2011); United States v. Rothwell, 387 F.3d 579, 582 (6th Cir. 2004). We treat the district court‘s “determination of the amount of loss” as a factual finding and thus review it under a deferential clear-error standard. United States v. Warshak, 631 F.3d 266, 328 (6th Cir. 2010). But we review de novo the district court‘s “methodology for calculating” the loss and its interpretation of the guidelines. Id.; United States v. Thomas, 933 F.3d 605, 608 (6th Cir. 2019). A misinterpretation of a guideline can result in a procedurally unreasonable sentence. See, e.g., United States v. Stubblefield, 682 F.3d 502, 510 (6th Cir. 2012); cf. Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907-08 (2018).
Here, the government did not attempt to meet its burden to prove the loss from Riccardi‘s theft by relying on factual evidence about the total amount that Riccardi stole or the total harm that her victims suffered. Instead, the government sought to meet its burden by relying on a legal rule that treats the “loss” for each of the 1,505 gift cards as $500 even though most of the gift cards had values averaging about $35. Riccardi raises two challenges to the use of this $500 mandatory minimum. She first argues that the district court misread
A
Riccardi initially claims that the district court wrongly applied the $500 minimum loss amount under the plain language of
Although
Application Note 3(F)(i)‘s special rule applies here. This rule gives “unauthorized access device” the definition from
Riccardi counters that another part of Application Note 3 tells courts to calculate the loss based on all available information, including the “fair market value of the property” stolen.
Riccardi next argues that the purpose behind this $500 minimum does not fit gift cards. Commentary to the original
Whether or not Riccardi correctly describes this commentary‘s background, the alleged purpose does not change things. Riccardi has conceded that gift cards are “access devices,” and the commentary requires a minimum loss of “$500 per access device.”
Riccardi also argues that it would be “unreasonable” to apply this $500 minimum in cases in which the court knows that the actual value of a stolen gift card falls below $500. Yet this “reasonableness” argument does not implicate the proper reading of Application Note 3(F)(i) and so does not belong in Riccardi‘s procedural-reasonableness challenge. See Stubblefield, 682 F.3d at 510. (No interpretive rule allows us to depart from the plain text when we find it “unreasonable.“) Rather, Riccardi‘s argument is a disguised substantive-reasonableness challenge to her sentence under the sentencing factors in
B
That does not end matters. For whatever reason, the Commission opted to place its $500 minimum in
1
We start with the basic differences between the guidelines and the commentary. The Sentencing Reform Act of 1984, Pub. L. No. 98-473, Title II, ch. II, 98 Stat. 1987, tasked the Commission with creating “guidelines” that contain sentencing ranges for various categories of offenses.
Since the beginning, the Commission has also included “application notes” in “commentary” that accompanies the guidelines. See, e.g.,
The Supreme Court rejected this view in Stinson. Analogizing to administrative law, the Court viewed the guidelines as the “equivalent of legislative rules adopted by federal agencies.” Id. at 45. And it viewed the commentary as “akin to an agency‘s interpretation of its own legislative rules.” Id. It thus found that the commentary deserved the deference given to an agency‘s interpretation of its regulations—what was then known as Seminole Rock deference but now goes by Auer deference. Id.; see Auer v. Robbins, 519 U.S. 452, 461 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). Applying Auer‘s test, Stinson held that the commentary‘s interpretation of a guideline “must be given ‘controlling weight unless it is plainly erroneous or inconsistent with the‘” guideline. 508 U.S. at 38 (quoting Seminole Rock, 325 U.S. at 414). Stinson added that the Commission could effectively amend a guideline by amending the commentary so long as “the guideline which the commentary interprets will bear the [amended] construction.” Id. at 46.
On its face, Stinson‘s plain-error test seemed to require courts to give great deference to the commentary. By way of analogy, the plain-error test that applies to unpreserved arguments on appeal requires a legal error to “be clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009). Unsurprisingly, then, we have previously been quick to give “controlling weight” to the commentary without asking whether a guideline could bear the construction that the commentary gave it. See, e.g., United States v. Ednie, 707 F. App‘x 366, 371-72 (6th Cir. 2017); United States v. Jarman, 144 F.3d 912, 914 (6th Cir. 1998). Perhaps for this reason, defendants have not previously “challenge[d] the general validity” of the $500 minimum loss amount at issue here. Gilmore, 431 F. App‘x at 430; see Moon, 808 F.3d at 1091.
Recently, however, the Supreme Court clarified Auer‘s narrow scope in the related
Should Kisor affect our approach to the commentary? We think so for both a simple reason and a more complicated one. As a simple matter, Stinson analogized to agency interpretations of regulations when adopting Seminole Rock‘s plain-error test for the commentary. 508 U.S. at 45. Stinson thus told courts to follow basic administrative-law concepts despite Congress‘s decision to locate the relevant agency (the Commission) in the judicial branch rather than the executive branch. See id.; cf. Mistretta v. United States, 488 U.S. 361, 384-85 (1989). So Kisor‘s clarification of the plain-error test applies just as much to Stinson (and the Commission‘s guidelines) as it does to Auer (and an agency‘s regulations). Indeed, Kisor itself cited Stinson as a decision applying Seminole Rock deference before Auer. Kisor, 139 S. Ct. at 2411 n.3.
The more complex reason follows from Kisor‘s response to a notice-and-comment concern raised by the challenger in that case. When asking the Court to overrule Auer, the challenger argued that Auer allowed an agency to freely change a legislative rule (a change that otherwise requires notice-and-comment rulemaking) simply by changing its interpretation of the rule without using that type of rulemaking. Id. at 2420. Kisor rejected the challenger‘s premise—that an agency could willy-nilly change a legislative rule simply by changing its interpretation. Why? Precisely because of the limits that Kisor imposed: Before deferring to the changed reading of the rule, a court must “first decide whether the rule is clear; if it is not, whether the agency‘s reading falls within its zone of ambiguity; and even if the reading does so, whether it should receive deference.” Id. In other words, Kisor‘s limitations on Auer deference restrict an agency‘s power to adopt a new legislative rule under the guise of reinterpreting an old one.
The same concern applies here, so Kisor‘s response should too. See Havis, 927 F.3d at 386. Only the guidelines (not the commentary) must go through notice-and-comment rulemaking.
We are not alone in this conclusion. The en banc Third Circuit recently adopted the same view. See United States v. Nasir, 982 F.3d 144, 158 (3d Cir. 2020) (en banc). It recognized that its pre-Kisor cases had upheld commentary expanding the guidelines. Id. Yet these cases could not stand after Kisor, the court found, because it “cut back on what had been understood to be uncritical and broad deference to agency interpretations of regulations[.]” Id. As a concurrence put it, Kisor must awake us “from our slumber of reflexive deference” to the commentary. Id. at 177 (Bibas, J., concurring in part).
We thus do not immediately defer to Application Note 3(F)(i). Rather, we first ask whether
These definitions show that “loss” can mean different things in different contexts. The word might include emotional harms, as in the statement that the children “bore up bravely under the [loss] of both parents[.]” Webster‘s Third New International Dictionary 1338 (1986). Or it might include just economic harms, as in the statement that my friend was “forced to sell all the stock at a [loss].” Id. (Another part of
In this case, however, we need not decide whether one clear meaning of the word “loss” emerges from the potential options after applying “the traditional tools’ of construction” to
Our conclusion is reinforced by caselaw distinguishing “legislative rules” (which must proceed through notice-and-comment rulemaking) from “interpretive rules” (which need not proceed through that rulemaking) under the Administrative Procedure Act. See generally Perez v. Mortg. Bankers Ass‘n, 575 U.S. 92, 95-97 (2015);
The same logic applies here. The commentary‘s bright-line $500 loss amount cannot “be derived from [
The government‘s responses do not change things. It does not argue meaningfully that a $500 minimum amount for gift cards qualifies as an “interpretation” of the word loss. It instead suggests that calculating the loss amount will often prove challenging and that district courts must make estimates. It thus relies on the standard of review for a district court‘s finding about the amount of the loss: A defendant “must carry the heavy burden of persuading this Court that the [district court‘s] evaluation of the loss was not only inaccurate, but was outside the realm of permissible computations.” United States v. Jackson, 25 F.3d 327, 330 (6th Cir. 1994); see, e.g., United States v. Gray, 521 F.3d 514, 543 (6th Cir. 2008). The government places undue reliance on this standard of review. Yes, it may sometimes be difficult to estimate the actual amount of loss. And yes, when a district court makes a record-based factual finding about the amount of the loss, we review its finding under a deferential clear-error standard. See Jackson, 25 F.3d at 330. But the district court‘s $500-loss-per-gift-card finding was not tied to its view of the evidence or the amount of the actual loss; it was tied to the legal requirement in Application Note 3(F)(i). And we review the purely legal question whether this requirement comports with
The government next turns to precedent interpreting the guidelines. It notes that our unpublished Murphy decision upheld a separate part of Application Note 3 indicating that “loss” includes not just actual
The government also attempts to distinguish our en banc Havis decision. That case involved a guideline phrase (controlled substance offense) that had a definition in the guideline itself, not in the commentary. 927 F.3d at 384. The guideline did not include “attempt” crimes in the definition of “controlled substance offense,” but the Commission‘s commentary enlarged the definition to cover those crimes. Id. We held that the commentary qualified as an improper attempt to expand, not interpret, the guidelines. Id. at 386-87. Here, by contrast, the government argues that
The government thus falls back on a policy argument. When financial fraudsters get caught in access-device thefts, the government often encounters difficulty uncovering the full extent of their crimes. It thus believes that a $500 minimum loss amount is a reasonable compromise to account for these difficulties. We need not take issue with the government‘s policy points to reject their application here. Perhaps some crimes do have difficult-to-quantify losses. Cf. United States v. Carver, 916 F.3d 398, 404 (4th Cir. 2019). And it is not unusual for a statutory term to include an unusual statutory definition that departs from its ordinary meaning. See, e.g., Tanzin v. Tanvir, 141 S. Ct. 486, 490 (2020); Digit. Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 776 (2018). Thus, nothing we say here would prevent the Commission from adopting its $500 minimum amount for access devices by placing this legislative rule in the guideline itself. We hold only that the Commission may not make this kind of substantive policy choice in the commentary and claim that its choice represents nothing more than an “interpretation” of the guideline.
We end by flagging one issue that the government did not raise. It appears that the Commission sent the amendment adopting this $500 minimum amount to Congress for its review and added it to the commentary using notice-and-comment rulemaking. See 65 Fed. Reg. 26,880, 26,895 (May 9, 2000); 65 Fed. Reg. 2663, 2668 (Jan. 18, 2000). Should we overlook that this $500 minimum sits in the commentary given that the Commission may have met the procedural checks required for it to amend the guidelines themselves? We
III. Restitution
Apart from her 56-month sentence, Riccardi also challenges the district court‘s order requiring her to pay $89,102 in restitution. She argues that the court should have offset this amount with the cash and gift cards that she forfeited to the government. But we cannot consider Riccardi‘s argument because she waived the right to raise it in her plea agreement.
A criminal defendant “may waive any right, even a constitutional right, by means of a plea agreement.” United States v. Winans, 748 F.3d 268, 270 (6th Cir. 2014) (citation omitted). That includes the right to appeal a sentence. Id. When deciding whether a defendant has waived this right, we interpret the plea agreement using traditional principles of contract interpretation. Id.
These rules foreclose Riccardi‘s appeal of the restitution order. Her plea agreement unambiguously stated that she “expressly and voluntarily waive[d]” the right “to appeal the conviction or sentence[.]” And “restitution is a part of a defendant‘s sentence.” United States v. Rafidi, 730 F. App‘x 338, 340 (6th Cir. 2018). So we have repeatedly read a waiver of the right to appeal a “sentence” as including a “restitution” order. Id. at 342; United States v. Grundy, 844 F.3d 613, 616 (6th Cir. 2016); United States v. Black, 652 F. App‘x 376, 379 (6th Cir. 2016); Winans, 748 F.3d at 271; United States v. Patel, 577 F. App‘x 568, 572 (6th Cir. 2014) (per curiam); United States v. Curry, 547 F. App‘x 768, 770-71 (6th Cir. 2013); United States v. Reese, 509 F. App‘x 494, 499 (6th Cir. 2012); United States v. Gibney, 519 F.3d 301, 306 (6th Cir. 2008); United States v. Sharp, 442 F.3d 946, 952 (6th Cir. 2006).
To be sure, we did not read an appeal waiver in this fashion in United States v. Smith, 344 F.3d 479 (6th Cir. 2003). Riccardi‘s waiver nevertheless falls within our usual rule, not within Smith‘s exception. There, we held that a defendant‘s plea agreement did not waive a right to appeal the loss calculations supporting the restitution order when the agreement indicated that the defendant waived the right “to appeal any sentence which is within the parameters of this agreement[.]” Id. at 483. Because the agreement‘s “parameters” did not include a method for calculating the loss, we read this ambiguous phrase against the government and held that the defendant‘s appeal of the loss calculation fell outside the waiver. Id. Here, by contrast, Riccardi‘s waiver unambiguously covers the right to appeal any sentence without limitation. It does not cover only a sentence within the plea agreement‘s “parameters.” So Smith does Riccardi no good.
True enough, Riccardi‘s plea agreement also included several exceptions to this appeal waiver for certain claims (hence why she could appeal the district court‘s use of the $500 minimum loss amount). But Riccardi gives us no reason to conclude that any exception covers her challenge to the restitution order. Some exceptions—e.g., those permitting Riccardi to bring ineffective-assistance-of-counsel or prosecutorial-misconduct claims or to appeal
That leaves Riccardi with the right to appeal (1) “any sentence to the extent it exceeds the maximum of the sentencing imprisonment range determined under the advisory Sentencing Guidelines” or (2) “any punishment in excess of the statutory maximum[.]” Yet the first exception—for a sentence exceeding the guidelines “imprisonment range“—does not apply because restitution is not “imprisonment,” and the guidelines do not provide restitution “ranges.” See Sharp, 442 F.3d at 952. Riccardi also offers no explanation why the second exception—for punishments exceeding the “statutory maximum“—applies. Indeed, our cases have noted that the “restitution statutes do not contain a maximum penalty[.]” Id.; see United States v. Bradley, 969 F.3d 585, 591-92 (6th Cir. 2020).
In short, if Riccardi “wished to reserve h[er] right to appeal the restitution order, [s]he should have negotiated for that right in h[er] plea agreement.” Rafidi, 730 F. App‘x at 342 (quoting Sharp, 442 F.3d at 952). She has given us no basis to conclude on appeal that she did so.
*
*
*
We reverse Riccardi‘s 56-month sentence, dismiss her separate challenge to the restitution order, and remand for resentencing consistent with this opinion.
CONCURRING IN PART AND IN THE JUDGMENT
NALBANDIAN, J., concurring in part and in the judgment. I agree that application note 3(F) is not a permissible interpretation of “loss” in
I.
Stinson sets out the standard for deferring to sentencing guideline commentary. Stinson v. United States, 508 U.S. 36 (1993). Stinson builds up to its holding by analyzing “analogies” that courts had used to describe the sentencing guideline commentary‘s legal status. Id. at 43-45. Some suggested the comments were like a drafter‘s “contemporaneous statement of intent.” Id. at 43. Others thought that “analogy to” Chevron captured the idea. Id. at 44. But the Court rejected these comparisons. Id.
The Court favored an “analogy” that—although “not precise“—it thought best described the commentary: “an agency‘s interpretation of its own legislative rule.” Id. at 45. As far as the “functional purpose of commentary,” the guidelines were “equivalent” because they helped others to interpret and apply rules that were “within the Commission‘s particular area of concern and expertise and which the Commission itself has the first responsibility
The Court then explained that the Sentencing Reform Act also supported affording deference to guideline commentary. Id. at 45-46. Congress had tasked the Commission with periodically reviewing, revising, and clarifying the guidelines. Id. Amending the commentary is one way to accomplish that job, and courts should defer when the Commission pursues its statutory mission that way. Id. at 46.
Two aspects of this opinion suggest that the Court did not intend that Stinson and Seminole Rock would march in lockstep. First, the Court‘s language describes the relationship between agency interpretation and guideline commentary as one of analogy, not equivalency. That falls short of a warrant to cross-apply cases interpreting Seminole Rock into the Stinson context. Second, the Court based the deferential standard not only on that similarity, but also on the Sentencing Commission‘s unique obligation to review and revise the Guidelines. So coupling Stinson and Seminole Rock leaves a swath of the Court‘s reasoning behind.
Consistent with this view, our cases do not apply ”Seminole Rock deference” or ”Auer deference” in guidelines commentary cases. Instead, we have repeatedly applied Stinson deference as its own free-standing directive. Commentary is authoritative “as long as the interpretation ‘does not violate the Constitution or a federal statute’ and is not ‘plainly erroneous or inconsistent with’ the provision‘s text.”2 The cases that cite Stinson together with Seminole Rock or Auer are the exception, not the rule.3 Though Stinson considered Seminole Rock in deciding to extend deference to guideline commentary, we have viewed Stinson deference as creating an independent standard since its inception.
In Kisor, the Court addressed ”Auer deference” and took the “opportunity to restate, and somewhat expand on” the Auer principles. Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019). It did not mention the sentencing guidelines or suggest that its ruling disturbed Stinson.4 For this reason, two Fifth Circuit cases have rejected the idea that Kisor‘s holding about Auer changed
For all the reasons above, I would apply Stinson without factoring in Kisor‘s guidance. Perhaps, in the end, the Supreme Court will vindicate the thoughtful and well-reasoned majority opinion. But for now, I would leave it to the Supreme Court to expand its own precedent especially because, I believe, the result is the same in this case.
II.
Declining to apply Kisor does not rubber-stamp the commentary. Although Stinson does not require “genuine ambiguity” before deferring, Kisor, 139 S. Ct. at 2415, it limits its deference to interpretations that the guideline “will bear.” Stinson, 508 U.S. at 46. It also requires that the comment “not run afoul of the Constitution or a federal statute” and that it “is not ‘plainly erroneous or inconsistent with‘” the guideline‘s text. Id. at 47.
These are not toothless commands. Recently, we struck down a comment that added attempt crimes to the definition of a “controlled substance offense” in the guidelines. United States v. Havis, 927 F.3d 382, 383-84 (6th Cir. 2019) (en banc) (per curiam). We held that if “no term in [the guideline‘s text] would bear” the commentary‘s interpretation, then the comment added to rather than interpreted the text. Id. at 386. In other words, the step before applying deference is asking, “[I]s this really an ‘interpretation’ at all?” Id. at 387.
At least nine circuits have struck down commentary under Stinson. Consider the Offense Statutory Maximum (OSM) cases. The OSM table lists ranges of incarceration terms, and each
range corresponds with an Offense Level.
Several circuits rejected the amended commentary. Our own circuit wrote that it “contravene[d] federal law” by conflicting with the “plain language of [28 U.S.C.] § 994(h).” United States v. Branham, 97 F.3d 835, 845-46 (6th Cir. 1996). The Tenth Circuit agreed that the phrase “maximum term authorized” in the statute unambiguously meant the sentence with enhancements included. United States v. Novey, 78 F.3d 1483, 1487 (10th Cir. 1996). Three other circuits rejected the commentary as inconsistent with the statute as well.5 And the Supreme Court ultimately affirmed this view, noting that, “If the Commission‘s revised commentary is at odds with § 994(h)‘s plain language, it must give way.” United States v. LaBonte, 520 U.S. 751, 757 (1997) (citing Stinson, 508 U.S. at 38).
Circuit courts also rejected commentary in “crime of violence” cases. Under the
residual clause—the commentary‘s textual hook—was no longer valid. United States v. Soto-Rivera, 811 F.3d 53, 59-61 (1st Cir. 2016).6
And the examples go on. Commentary must “yield the road” when it tells courts to overlook an enhancement that the guideline text says to apply. See United States v. Chuong Van Duong, 665 F.3d 364, 368 (1st Cir. 2012); United States v. Ordonez, 305 F. App‘x 980, 985 (4th Cir. 2009) (per curiam). Courts must include all intended losses in their loss calculations even if the commentary opines that certain losses should not count. See United States v. Henderson, 19 F.3d 917, 928 (5th Cir. 1994). The statutory command to reference the guideline for the specific crime committed overrides a commentary‘s instruction to reference a different guideline. See United States v. Smith, 184 F.3d 415, 418-19 (5th Cir. 1999); United States v. Fields, 242 F.3d 393, 398 (D.C. Cir. 2001).
The point: Stinson requires that commentary interpret the guidelines, not contradict or add to them. So the question for us is whether the comment here heeds those bounds. I conclude it does not for the same reasons that the majority opinion well articulates. Maj. Op. at 11-15. Ascribing a certain number to “loss” is not a definition. It is a policy call. Imagine that the commentary required court to calculate any credit card theft as a million-dollar loss. That would be unreasonable, but not because it is an inferior definition of “loss.” A loss may be millions just as well as it may be $500. Rather, the million-dollar provision would be an unreasonable policy choice.
Finally, I would note that this decision does not impact comments that properly amplify the different aspects of “loss.” Other commentary in
commentary enhances the definition of “loss” by emphasizing particular aspects rather than making a policy call disguised as an interpretation.
For all these reasons, I concur in the result but base my reasoning on Stinson rather than Kisor.