UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KEITH WHITE, Defendant-Appellant.
No. 22-2014
United States Court of Appeals for the Seventh Circuit
ARGUED JANUARY 12, 2023 — DECIDED APRIL 2, 2024
Sarah Evans Barker, Judge.
Before SYKES, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges.
SYKES, Chief Judge. While serving a state sentence at the Pendleton Correctional Facility in Indiana, Keith White and another inmate ran a heroin-distribution ring inside the prison. After three inmates fatally overdosed, the FBI launched an investigation, and White and three accomplices were indicted for conspiracy to distribute heroin. White pleaded guilty; this is his second appeal challenging his sentence.
White‘s criminal history includes two Indiana felony convictions for cocaine dealing, which raised the statutory penalties for his heroin conviction, see
At his resentencing hearing, White raised a new objection to the career-offender guideline based on the Supreme Court‘s intervening decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019). As relevant here, the guideline applies when a defendant is convicted of a felony “controlled substance offense” and has two or more prior felony convictions for a “controlled substance offense.”
Applying the Supreme Court‘s decision in Stinson v. United States, 508 U.S. 36 (1993), we have repeatedly deferred to Application Note 1 as the Sentencing Commission‘s authoritative interpretation of the career-offender guideline. See United States v. Smith, 989 F.3d 575, 583–85 (7th Cir. 2021); United States v. Adams, 934 F.3d 720, 727–30 (7th Cir. 2019); United States v. Raupp, 677 F.3d 756, 758–59 (7th Cir. 2012) (overruled on other grounds by United States v. Rollins, 836 F.3d 737, 743 (7th Cir. 2016) (en banc)). Bound by circuit precedent, the district judge rejected White‘s argument and again applied the career-offender guideline.
White now asks us to overrule this circuit caselaw and remand for resentencing without the career-offender enhancement. Relying on Kisor, he argues that the definition of “controlled substance offense” in
White argues in the alternative that Application Note 1 is invalid under the “major questions doctrine” and the Supreme Court‘s decision in West Virginia v. EPA, 597 U.S. 697 (2022). This argument is meritless. The major questions doctrine does not apply. We therefore affirm the judgment.
I. Background
In 2014 White was serving a state sentence for cocaine trafficking at the Pendleton Correctional Facility in Indiana. He and fellow inmate Elonzo Williams operated a long-running drug-trafficking ring inside the prison, distributing heroin to other inmates. Williams‘s sister Lettie served as the courier; she picked up distribution quantities of heroin from White‘s sources in Chicago and delivered the drugs to Karen Jennings, a prison kitchen worker. Jennings smuggled the drugs into the prison, and White and Williams distributed user quantities to inmates.
After a series of overdoses—three of them fatal—the FBI opened an investigation. Inmates identified White and Williams as their heroin sources. Investigators then reviewed recorded phone calls and discovered that White had used prison phones to organize the pickup and delivery of multiple batches of heroin between 2014 and 2015.
White and his three accomplices were indicted in 2017 for conspiracy to distribute 100 grams or more of heroin.
White‘s case was dormant for more than a year, but he eventually pleaded guilty. In
White asked his lawyer to file an appeal, but she did not follow through. Based on his lawyer‘s error, the judge granted White‘s motion for relief under
In the meantime, we issued our decision in Ruth, which held that an Illinois conviction for cocaine dealing is not a predicate for enhanced penalties under
Ruth did not eliminate White‘s designation as a career offender, but the change in the statutory maximum reduced his base offense level from 37 to 34, see
Back before the district judge, White raised a new objection to the career-offender enhancement based on the Supreme Court‘s intervening decision in Kisor. To understand his argument requires a brief explanation of how this familiar provision works. As its name implies, the guideline applies to recidivists; it raises the base offense level for defendants who repeatedly commit certain kinds of felony offenses. The guideline applies when (1) the offense of conviction is a felony “crime of violence” or “controlled substance offense” and (2) the defendant has two or more prior felony convictions for a “crime of violence” or “controlled substance offense.” Id.
Until very recently, the definitions of “crime of violence” and “controlled substance offense” in the career-offender guideline did not address inchoate offenses like conspiracy. Id.
At resentencing White argued that the Supreme Court‘s recent decision in Kisor unsettled our circuit caselaw regarding the validity of Application Note 1. Drawing on Kisor‘s less deferential approach to agencies’ interpretations of their own rules, White maintained that because the definition of “controlled substance offense” in
Bound by circuit precedent, the judge rejected White‘s argument and once again applied the career-offender Guide- line. But she also determined that its effect on White‘s guidelines range may have overstated his culpability. For that reason and several others, she imposed a below-Guidelines sentence of 10 years.
II. Discussion
On appeal White challenges his career-offender designation on two grounds, both centering on the validity of Application Note 1 to
A. Kisor and Application Note 1 to § 4B1.2
Until recently,
Under the Supreme Court‘s decision in Stinson, the Commission‘s commentary interpreting or explaining a guideline is authoritative and entitled to controlling weight “unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” 508 U.S. at 38. Applying Stinson, we have repeatedly given Application Note 1 controlling weight as an authoritative interpretation of the term “controlled substance offense” in
In Smith—the most recent in this line of cases—we acknowledged a newly emerging circuit split on the validity of Application Note 1 but declined an invitation to change our position. 989 F.3d at 584–85. The disagreement among the circuits has widened since Smith as more courts of appeals have reconsidered their Stinson-based precedents deferring to Application Note 1. Some of these shifts were occasioned by the Supreme Court‘s 2019 decision in Kisor; others slightly predated it.
Here‘s the current lineup: Six circuits have held that Application Note 1 impermissibly expands
We require a compelling reason to overrule circuit precedent. Campbell v. Kallas, 936 F.3d 536, 544 (7th Cir. 2019). White urges us to change course based on the Supreme Court‘s decision in Kisor v. Wilkie, which clarified the deference owed to an agency‘s interpretation of its own regulations under the rule of Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413–14 (1945).
In Kisor the Court considered whether to overrule Seminole Rock and “discard[] the deference” it “give[s] to agencies.”2 139 S. Ct. at 2408. The Court declined to do so but
“reinforce[d]” Seminole Rock‘s limitations. Id. Specifically, the Court held that courts should defer to an agency‘s interpretation of a regulation only in cases of “genuine ambiguity” after first “exhaust[ing] all the traditional tools of construction.” Id. at 2415 (quotation marks omitted). If a regulation is genuinely ambiguous, the court should defer to the agency‘s interpretation only if it is reasonable—that is, only if the interpretation “come[s] within the zone of ambiguity the court has identified.” Id. at 2415–16. Finally, the court must determine “whether the character and context of the agency interpretation entitles it to controlling weight.” Id. at 2416. Kisor identified some factors that inform this last step in the restated deference formula. First, the interpretation “must be the agency‘s authoritative or official position” rather than an “ad hoc statement not reflecting the agency‘s views.” Id. (quotation marks omitted). Second, the interpretation “must in some way implicate [the agency‘s] substantive expertise.” Id. at 2417. And third, the agency‘s reading “must reflect fair and considered judgment.” Id. (quotation marks omitted).
It‘s fair to say that Kisor‘s refinement of Seminole Rock reduced the level of deference owed to an agency‘s interpretation of its own regulations. But Kisor‘s effect on Stinson is unclear. Stinson borrowed from Seminole Rock because the Court viewed the Guidelines commentary as in some respects “akin to an agency‘s interpretation of its own legislative rules.” 508 U.S. at 45. But the Court also cautioned that “the analogy is not precise.” Id. at 44. The Sentencing
And its statutory charge is unique in ways that affect the deference calculus. See Stinson, 508 U.S. at 44–45; Vargas, 74 F.4th at 682–83; Maloid, 71 F.4th at 806–07.
Perhaps most importantly, the Court said nothing in Kisor to suggest that it was altering Stinson. Indeed, Stinson is cited only in a footnote along with 16 other cases as examples of “decisions applying Seminole Rock deference.” Kisor, 139 S. Ct. at 2411 n.3. Because Kisor did not address Stinson in any meaningful way, we do not see a compelling reason to reconsider our circuit precedent treating Application Note 1 as authoritative gloss on the career-offender guideline.
Indeed, the Supreme Court has instructed us to resist invitations to find its decisions overruled by implication. Mallory v. Norfolk S. Ry. Co., 143 S. Ct. 2028, 2038 (2023). Kisor did not purport to modify Stinson (much less overrule it). That‘s reason enough for us to stay the course. When a Supreme Court decision is directly controlling, our job is to follow it, “leaving to th[e] Court the prerogative of overruling its own decisions.” Id. (quotation marks omitted). That‘s true even if “intervening decisions have eroded [its] foundation.” Price v. City of Chicago, 915 F.3d 1107, 1111 (7th Cir. 2019).
The disagreement among the circuits—now quite entrenched—is another reason not to change positions. Unless our circuit is an outlier, “it makes little sense for us to jump from one side of the circuit split to the other.” A.C. by M.C. v. Metro. Sch. Dist. of Martinsville, 75 F.4th 760, 771 (7th Cir. 2023). As we explained in another case asking us to switch sides in a pronounced circuit split:
Precedents are not sacrosanct; we have overruled many. But when the issue is closely balanced (the 5 to 4 division among the circuits reveals at least that much), there is less reason to think that a shift will undo rather than create an error. … When one circuit‘s overruling would convert a 5–4 conflict into a 4–5 conflict, it is best to leave well enough alone.
Buchmeier v. United States, 581 F.3d 561, 565–66 (7th Cir. 2009) (en banc).
Because Kisor did not unsettle Stinson, we decline to reconsider our circuit caselaw deferring to Application Note 1.
B. “Major Questions Doctrine”
Alternatively, White invokes the “major questions doctrine” and the Supreme Court‘s decision in West Virginia, arguing that the Sentencing Commission lacked clear congressional authorization to include inchoate offenses as career-offender predicates.3 This argument requires only brief treatment: the major questions doctrine does not apply here.
The doctrine derives from the basic principle that statutory texts “must be read in their context and with a view to their place in the overall statutory
When does a case qualify as extraordinary enough to bring the major questions doctrine into play? The Court explained in West Virginia: the doctrine applies when an agency has adopted a regulatory scheme of great economic and political significance, and the “history and the breadth” of its assertion of authority “provide a reason to hesitate before concluding that Congress meant to confer such authority.” Id. (internal quotation marks omitted). In this limited category of cases, the government must “point to clear congressional authorization” to justify the agency‘s power “to regulate in that manner.” Id. at 732 (internal quotation marks omitted).
Though the precise contours of the doctrine remain hazy, see Biden v. Nebraska, 143 S. Ct. 2355, 2376 (2023) (Barrett, J., concurring), White‘s case plainly lacks the hallmarks of the truly extraordinary cases that have triggered it. West Virginia, 597 U.S. at 721–23. Application Note 1 to
On the contrary, the Sentencing Reform Act specifically authorizes the Commission to make decisions like this one concerning sentencing policy. See
Indeed, we held 30 years ago that the Commission‘s broad statutory power to promulgate sentencing guidelines includes the authority to issue commentary treating inchoate offenses as career-offender predicates. United States v. Damerville, 27 F.3d 254, 256–57 (7th Cir. 1994). Though the issue was not framed in terms of the present-day major questions doctrine, Damerville forecloses White‘s argument.
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Before closing, we note that the Sentencing Commission recently addressed the circuit split regarding Application Note 1. The Commission amended
AFFIRMED