UNITED STATES OF AMERICA, Plаintiff-Appellee, v. QUINDELL TYREE MALOID, Defendant-Appellant.
No. 21-1422
United States Court of Appeals for the Tenth Circuit
June 23, 2023
PHILLIPS, MURPHY, and EID, Circuit Judges.
PUBLISH.
Howard A. Pincus, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant
Michael C. Johnson, Assistant United States Attorney (Cole Finegan, United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.
PHILLIPS, Circuit Judge.
In November 2020, Quindell Maloid pleaded guilty to being a felon in possession of a firearm. Years earlier, he pleaded guilty in Colorado state court to conspiring to commit felony menacing with a firearm. Under commentary in the U.S. Sentencing Guidelines Manual, conspiracies to commit crimes of violence count as crimes of violence and markedly increase a defendant‘s advisory guideline range. After counting Maloid‘s prior conspiracy conviction as a crime of violence, the district court sentenced him to 51 months’ imprisonment, the low end of the range.
We must now decide what weight we give to this commentary from the U.S. Sentencing Commission. That issue has fractured the circuits after the Supreme Court‘s deсision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019). There, the Supreme Court refined its standard on what deference courts owe to executive agencies’ interpretation of their rules. Some circuits have applied Kisor‘s revised standard to the Commission‘s commentary, treating it no differently than executive regulatory interpretations. Others have declined to read Kisor so broadly.
We hold that, in this circuit, commentary in the Guidelines Manual governs unless it runs afoul of the Constitution or a federal statute or is plainly erroneous or inconsistent with the guideline provision it addresses. We will not extend Kisor to the Commission‘s commentary absent clear direction from the Court.
BACKGROUND
I. Factual Background
In February 2020, while observing traffic on Interstate 70, Colorado police officers saw an SUV driving recklessly. Driving the SUV was Maloid, with his wife seated as a front-seat passenger. After a protracted police chase, officers managed to stop the SUV. During this encounter, officers found a loaded handgun in Maloid‘s wife‘s pocket. Maloid later admitted that the gun was his.
As a felon, Maloid could not legally possess a firearm.
A federal grand jury later indicted Maloid on a charge of felon in possession of a firearm. Maloid signed a written plea agreement and entered a guilty plea. In exchange, the government recommended the full acceptance-of-responsibility reduction under
In its presentence report (PSR), the U.S. Probation Office calculated Maloid‘s total offense level at 17, not 12. It got there by treating Maloid‘s conspiracy-to-menace conviction as a “crime of violence”
In the PSR, the Probation Office also identified and described Maloid‘s prior conspiracy conviction. It recounted that in June 2016, Maloid had pointed a firearm at a man during a heated argument. When the man punched him, Maloid fell back and dropped the firearm. Maloid then got up, grabbed the firearm, and ran. Soon after, officers arrested Maloid, still in possession of the firearm. Maloid told the arresting officers that he was “high up in the Crips” and that the police department would “have another scene” on their hands at the other man‘s residence. Maloid later pleaded guilty to the Colorado felony offense of conspiracy to commit menacing with a weapon.
II. Procedural Background
At the sentencing hearing, Maloid objected to the PSR‘s application of the crime-of-violence enhancement and the resulting increased offense level under
The government distinguished Fell as arising under the Armed Career Criminal Act (ACCA), not the Guidelines. And it said that Stinson v. United States, 508 U.S. 36 (1993), as we enforced in United States v. Martinez, 602 F.3d 1166 (10th Cir. 2010), required the court to enforce the crime-of-violence commentary. Addressing Maloid‘s categorical-approach argument, the government urged the court to define generic conspiracy under
The district court ruled for the government. It concluded that ”Fell addressed the issue of whether conspiracy to commit burglary was a violent felony under the ACCA which, of course, is not the issue presented to me squarely in this case.” In overruling Maloid‘s challenge to the five-level sentencing enhancement, the district court found
The district court sentenced Maloid to a 51-month sentence, at the low end of the advisory guideline range. Maloid timely appealed.
JURISDICTION
We have jurisdiction under
STANDARD OF REVIEW
“When evaluating sentence enhancements under the Sentencing Guidelines, this Court reviews the district court‘s factual findings for clear error and questions of law de novo.” United States v. McDonald, 43 F.4th 1090, 1095 (10th Cir. 2022) (citation omitted).
But when a party fails to make an argument below, we review for plain error. United States v. Zubia-Torres, 550 F.3d 1202, 1205 (10th Cir. 2008). That deferential standard requires Maloid to show “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Archuleta, 865 F.3d 1280, 1290 (10th Cir. 2017) (citation omitted). This standard “presents a heavy burden for an appellant, one which is not often satisfied.” United States v. Garcia-Caraveo, 586 F.3d 1230, 1232 (10th Cir. 2009) (citation omitted).
DISCUSSION
On appeal, Maloid charges the district court with two errors by sentencing him under
I. Relevant Law
In this section, we discuss cases governing (1) the relevant guideline provisions and commentary, (2) the enforceability of the Guidelines’ commentary, and (3) the use of the categorical approach in measuring Colorado‘s offense of conspiracy to
A. The Guidelines
We begin by reviewing the relevant guideline provisions and commentary.7 The district court applied the crime-of-violence enhancement contained in
Under
What about conspiracies? The text defining crime of violence in
This appeal turns on two questions: Is the commentary at
B. Commentary in the Guidelines
In Stinson, the Supreme Court considered the enforceability of the Guidelines’ commentаry. 508 U.S. at 40. In its review, the Court noted that Congress created the Sentencing Commission in the Sentencing Reform Act of 1984 (SRA) and “charged it with the task of ‘establish[ing] sentencing policies and practices for the Federal criminal justice system.‘” Id. at 40-41 (alteration in original) (quoting
The Court
The Commentary that accompanies the guideline sections may serve a number of purposes. First, it may interpret the guideline or explain how it is to be applied. Failure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal. See
18 U.S.C. § 3742 . Sеcond, the commentary may suggest circumstances which, in the view of the Commission, may warrant departure from the guidelines. Such commentary is to be treated as the legal equivalent of a policy statement. Finally, the commentary may provide background information, including factors considered in promulgating the guideline or reasons underlying promulgation of the guideline. As with a policy statement, such commentary may provide guidance in assessing the reasonableness of any departure from the guidelines.
U.S. Sent‘g Guidelines Manual § 1B1.7 (U.S. Sent‘g Comm‘n 1992) (same in 2018 Guidelines). Indeed, the Court homed in on the Commission‘s statement that commentary was the “legal equivalent of a policy statement.” Stinson, 508 U.S. at 43. The Court felt that significant because it had already held that policy statements were “authoritative guide[s] to the meaning of the applicable Guideline,” particularly when the policy statement “prohibit[ed] a district court from taking a specified action.” Id. at 42 (quoting Williams v. United States, 503 U.S. 193, 201 (1992)).
The Court also recognized that commentary would not always be as binding as the guideline provisions themselves. “Thus,” the Court “articulate[d] the standard that governs the decision whether particular interpretive or explanatory commentary is binding.” Id. at 43. It analogized to the Seminole Rock doctrine of administrative deference,9 under which agencies’ interpretations of their own regulations will control unless those interpretations are “plainly erroneous or inconsistent with the regulation.” Id. at 45 (quoting Bowles, 325 U.S. at 414).10 So viewed, the Court declared that “the guidelines are the equivalent of legislative rules adopted by federal agencies” because “[t]he functional purpose of commentary” is “to assist in the interpretation and application” of the guideline provisions. Id. But the Court also acknowledged that this analogy to Seminole Rock deference was “not precise because Congress has a role in promulgating the guidelines.” Id. at 44.
So the Court ruled that courts must give commentary controlling weight unless it “run[s] afoul of the Constitution or a federal statute” or is “plainly erroneous or inconsistent” with the guideline provision it purports to interpret. Id. at 47.
We have dutifully applied that rule. For instance, in United States v. Morris, 562 F.3d 1131, 1135 (10th Cir. 2009),11 we relied on the commentary to determine whether a sentencing enhancement under
We ruled similarly in United States v. Martinez, which dealt with
But Stinson has come under scrutiny after the Court‘s decision in Kisor v. Wilkie, 139 S. Ct. 2400. There, the Court considered whether to overrule Seminole Rock deference in the context of an administrative interpretation of a Department of Veterans Affairs regulation. Id. at 2408-09. The Court declined to overrule Seminole Rock deference, choosing to winnow it instead:
Auer deference is not the answer to every question of interpreting an agency‘s rules. Far from it. . . . [T]he possibility of deference can arise only if a regulation is genuinely ambiguous. And when we use that term, we mean it—genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation. Still more, not all reasonable agency constructions of those truly ambiguous rules are entitled to deference.
Id. at 2414. The Court crafted a new test for when courts could defer to agency interpretations of their own regulations. Courts must satisfy themselves that the regulation is “genuinely ambiguous” by “exhaust[ing] all the ‘traditional tools’ of construction.” Id. at 2415 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)). In other words, a court must “carefully 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. (cleaned up). And, assuming that courts find a regulation genuinely ambiguous, they must assure themselves that “[t]he text, structure, history, and so forth at least establish the outer bounds of permissible interpretation.” Id. at 2416.
What does Kisor have to do with Stinson? After all, Kisor concerned deference owed an executive agency‘s interpretation and did not discuss Stinson at all. The only mention of Stinson was in a footnote in the plurality opinion, standing for the general proposition that the Court‘s “(pre-Auer) decisions applying Seminole Rock deference are legion.” Id. at 2411 n.3 (plurality opinion). But several of our sister circuits have concluded that because Kisor limited Seminole Rock deference, it abrogated Stinson. Indeed, we have characterized that question as hotly debated. See United States v. Babcock, 40 F.4th 1172, 1184-85 (10th Cir. 2022) (collecting cases).12
C. The Categorical Approach
“We apply a categorical approach to determine whether a prior conviction
The Guidelines sometimes enumerate crimes without defining their elements. In those instances, we must search for the “generic, contemporary meaning” of the undefined crime. United States v. Faulkner, 950 F.3d 670, 674 (10th Cir. 2019). We employ the framework announced in Taylor v. United States, 495 U.S. 575 (1990), examining “a wide range of sources” such as “federal and state statutes, the Model Penal Code, dictionaries, and treatises.” United States v. Rivera-Oros, 590 F.3d 1123, 1126-27 (10th Cir. 2009) (citation omitted). As our precedents make clear, we focus our definitional inquiry on modern sources when faced with interpretations of the Guidelines for the first time.13
II. Effect of the Guidelines’ Commentary
Having now reviewed the relevant law, we turn to Maloid‘s arguments. Maloid contends that the district court erred in relying on
At bottom, Maloid‘s argument turns on whether we accept his premise that Kisor controls how we interpret the Guidelines’ commentary. Whether Kisor upended Stinson is a novel question in our circuit and one that has divided our sister circuits. We now join the fray and rule that Kisor did not abrogate Stinson. Commentary governs unless it “run[s] afoul of the Constitution or a federal statute” or is “plainly erroneous or inconsistent” with the guideline provision it interprets. Stinson, 508 U.S. at 47. Because Stinson remains good law, our ruling in Martinez forecloses Maloid‘s argument.
A. Kisor Does Not Reach the Sentencing Commission.
We begin by reviewing Kisor. Kisor settled a nettlesome question in administrative law: How much deference should the Judiciary give to еxecutive agencies’ interpretations of their own rules? That
In performing our statutory review, we often must determine what level of deference applies. If overly defеrential to administrative promulgations, we might miss lurking constitutional concerns, such as whether the agency has provided fair notice of its policy changes. And if insufficiently deferential, we might hamstring agencies from carrying out their congressionally authorized duties.
Against this backdrop, Kisor adopted a middle-ground approach to govern the relationship between the Judiciary and executive agencies. It did not overrule the Seminole Rock deference standard that we use in reviewing executive-agency interpretations of their regulations. Recognizing the unique policymaking role of executive agencies, Kisor noted that “Congress . . . is attuned to the comparative advantages of agencies over courts in making . . . policy judgments.” 139 S. Ct. at 2413 (plurality opinion). Kisor cataloged the reasons for deferring to executive agencies in the first place: “[a]gencies (unlike courts) have ‘unique expertise,‘” “[a]gencies (unlike courts) can conduct factual investigations” and “can consult with affected parties,” and “agencies (again unlike courts) have political accountability” as “subject to the supervision of the President, who in turn answers to the public.” Id. (citations omitted). So some levеl of deference makes sense because “Congress, when first enacting a statute, assigns rulemaking power to an agency and thus
authorizes it to fill out the statutory scheme.” Id. That delegation means that “Congress presumably wants the same agency, rather than any court, to take the laboring oar” in clarifying its own regulations. Id.
Even so, the Court recognized that excessive deference could be too much of a good thing. By winnowing the application of Seminole Rock deference to regulations that are “genuinely ambiguous,” the Court recognized that Seminole Rock deference was “not the answer to every question of interpreting an agency‘s rules.” Id. at 2414 (majority opinion).
All to say that Kisor had everything to say about executive agencies and precious little about the Sentencing Commission. That‘s a critical distinction. The Commission is neither an executive agency nor strictly limited by the APA.14 Its governing statute, the SRA, includes the Commission in the judicial branch.
As Kisor noted, executive agencies base their interpretations on “policy concerns” as agents of the President. 139 S. Ct. at 2413 (plurality opinion). The Commission is different. It promulgates guideline provisions and commentary not to make broad-ranging policy choices but to guide federal judges through the complex process of sentencing. See
Other differences between executive agencies and the Sentencing Commission abound. Unlike executive agencies, the Commission has no enforcement or investigative authority—furthering the conclusion that Kisor did not apply to the Commission‘s commentary. Nor does the Sentencing Commission have the same scope of rulemaking authority most executive agencies enjoy. To the contrary, as Stinson recognized, the SRA cabins the Commission‘s ability to speak to guideline provisions, policy statements, and commentary—all of which Congress scrutinizes. See
Because judicial agencies are different, we cannot say that Kisor meant for its new standard—crafted entirely in the context of executive agencies—to reach the Commission. As applied to the Commission, Kisor merely recognizes what the Court made clear in Stinson: the analogy between the Guidelines’ commentary and executive interpretations is “not precise because Congress has a role in promulgating the guidelines.” Stinson, 508 U.S. at 44. We will not compound that
B. Principles of vertical stare decisis disfavor application of Kisor to the Sentencing Commission.
In determining whether Stinson or instead Kisor controls here, we confront a jurisprudential question of vertical stare decisis. That maxim counsels that “federal circuit courts are . . . bound by the Supreme Court‘s decisions.” Bryan A. Garner et al., The Law of Judicial Precedent 28 (2016). The Supreme Court warns us that, “unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.” Hutto v. Davis, 454 U.S. 370, 375 (1982) (per curiam). Indeed, rigid adherence to vertical stare decisis is paramount: as we‘ve noted, “Vertical stare decisis is absolute and requires us, as middle-management circuit judges, to follow applicable Supreme Court precedent in every case. So once the Supreme Court has adopted a rule, standard, or interpretation, we must use that same rule, standard, or interpretation in later cases.” United States v. Guillen, 995 F.3d 1095, 1114 (10th Cir. 2021) (citation omitted).
We must apply Supreme Court precedent even when that precedent rests on shaky grounds. “Sometimes the Supreme Court appears poised to overturn its own precedent. But even then, as long as the precedent is still ‘good law,’ federal courts must follow it.” Garner, supra, at 30. The Supreme Court has reminded us, “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerоgative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989). We heed the Court‘s command and continue to apply Supreme Court cases that directly control. Only the Supreme Court can overrule its own precedents. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (“[I]t is this Court‘s prerogative alone to overrule one of its precedents.“); Agostini v. Felton, 521 U.S. 203, 237 (1997) (“We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent.“).
After carefully reviewing Kisor, we conclude that it did not overrule Stinson or consider what deference we give the Commission‘s commentary. In fact, as stated, Kisor barely mentions Stinson, citing the decision once as one of 16 background examples of “pre-Auer” cases “applying Seminole Rock deference.” Kisor, 139 S. Ct. at 2411 n.3 (plurality opinion). And Kisor‘s only other glimpse of sentencing came from Justice Gorsuch‘s concurrence. There, in a section titled “The Administrative Procedure Act,” Justice Gorsuch posited the following hypothetical:
[C]onsider a statute that tells a court to “determine” an appropriate sentence in a criminal case. If the judge said he was sending a defendant to prison for longer than he believed appropriate only in deference to the government‘s “reasonable” sentencing recommendation, would anyone really think that complied with the law?
Id. at 2433 (Gorsuch, J., concurring in the judgment) (cleaned up). The concurrence‘s concern was reflexive deference to the executive branch (the government‘s sentencing recommendation) in the sentencing
Nor was the Court‘s silence on sentencing surprising—that issue was not before it. None of the parties’ briefs before the Court discussed the Seminole Rock doctrine in the sentencing context. Nor did one of the dozens of amicus briefs received by the Court mention Stinson or sentencing. Surely, if the Supreme Court meant Kisor to reach sentencing, it would have said so. And if Kisor didn‘t overrule Stinson, we are bound to follow the older precedent.
C. Deferring to the Sentencing Commission‘s commentary does not raise the same statutory and constitutional concerns as deferring to executive agencies’ regulatory interpretations.
Though it didn‘t say so, the Kisor Court limited Seminole Rock deference against a backdrop of criticism from scholars and even Supreme Court Justices. See id. at 2430-31 (“[I]t should come as no surprise that several Members of this Court, along with a great many lower court judges and members of the legal academy, have questioned Auer‘s validity and pleaded with this Court to reconsider it.” (footnotes omitted)).16 Those critiques centered on three flaws of Seminole Rock deference as applied to executive agencies: (1) it violates the APA; (2) it violates the separation of powers; and (3) it creates due-process problems. None of those critiques that led the Court to limit Seminole Rock deference apply to the Sentencing Commission.
1. The Administrative Procedure Act
Many Justices have noted that Seminole Rock deference abrogates the court‘s duty under
A court that, in deference to an agency, adopts something other than the best reading of a regulation isn‘t “decid[ing]” the relevant “questio[n] of law” or “determin[ing] the meaning” of the regulation. Instead, it‘s allowing the agency to dictate the answer to that question. In doing so, the court is abdicating the duty Congress assigned to it in the APA.
Kisor, 139 S. Ct. at 2432 (Gorsuch, J., concurring in the judgment) (alterations in original). This rationale makes sense for executive agencies. After all, in deferring to an executive agency‘s interpretation, we generally aren‘t deciding for ourselves what the agency‘s regulation means. We
It‘s hard to make the same argument in the sentencing context because
First, we do not give any new legal effect to the commentary by deferring to it. Neither the guideline provisions nor the commentary has any binding legal authority to begin with. Beckles v. United States, 580 U.S. 256, 265 (2017) (“[T]his Court in Booker[ v. United States, 543 U.S. 220 (2005),] rendered [the Guidelines] ‘effectively advisory.‘” (citations omitted)); see also Rollins, 836 F.3d at 739 (“Application note 1 has no legal force independent of the guideline itself; the note‘s list of qualifying crimes is valid (or not) only as an interpretation of § 4B1.2.” (citing Stinson, 508 U.S. at 41-42)).
Second, and similarly, district courts have discretion to sentence defendants outside the Guidelines-recommended sentence. “Although the Guidelines remain the starting point and the initial benchmark for sentencing, a sentencing court may no longer rely exclusively on the Guidelines range; rather, the court must make an individualized assessment based on the facts presented and the other statutory factors.” Beckles, 580 U.S. at 265 (cleaned up) (quoting Gall v. United States, 552 U.S. 38, 49, 50 (2007)). So courts may override the effect of the commentary by an individualized assessment of the
Third, and similarly again, even with Stinson deference, we will often interpret the commentary for ourselves. We will strike down commentary when it conflicts with the plain text of the SRA. See United States v. Novey, 78 F.3d 1483, 1486-88 (10th Cir. 1996) (invalidating commentary amendment as inconsistent with
2. Separation of Powers
Another critique lobbed at Seminole Rock deference is that the doctrine violates the separation of powers. As much as this critique shines when considering the horizontal relationship between the Judiciary and the Executive, it loses its luster when considering the Judiciary and the Commission. The problem with an overly deferential Seminole Rock doctrine is that it gives “a dangerous permission slip for the arrogation of power.” Decker, 568 U.S. at 620 (Scalia, J., concurring in part) (citations omitted). That‘s so because if the Judiciary rubber-stamps the Executive‘s interpretations of its regulations, then the Executive can aggrandize its own authority. “[W]hen an agency interprets its own rules . . . [,] the power to prescribe is augmented by the power to interpret; and the incentive is to speak vaguely and broadly, so as to retain a ‘flexibility’ that will enable ‘clarification’ with retroactive effect.” Id.; see also Talk Am., Inc., 564 U.S. at 68 (Scalia, J., concurring) (noting that the “legislative and executive functions are . . . combined” when “an agency promulgates an imprecise rule” and “leaves to itself the implementation of that rule, and thus the initial determination of the rule‘s meaning“). Put differently, too much defеrence “encourages the agency to enact vague rules” and “effectively cedes power to the Executive.” Talk Am., Inc., 564 U.S. at 69.
So the Kisor Court‘s limitations on Seminole Rock deference ensure that the Executive does not merge executive and legislative functions or aggrandize its own authority. But those limits make less sense for the Commission. For one, deferring to the Commission‘s commentary doesn‘t marry judicial and legislative functions. The Court has already said as much. In Mistretta v. United States, the Court considered whether the Commission‘s “quasi-legislative power” impermissibly imbued the Judiciary with too much rulemaking authority. 488 U.S. 361, 393 (1989). The Court concluded that the Commission‘s “powers are not united with the powers of the Judiciary in a way that has meaning for separation-of-powers analysis.” Id. That‘s because the Commission operated as an “independent agency” that was “fully accountable to Congress.” Id. The Court then noted that, under the SRA, Congress could “revoke or amend any or all of the Guidelines as it sees fit . . . at any time.” Id. at 393-94 (emphases added); see also United States v. LaBonte, 520 U.S. 751, 757 (1997) (“Broad as [the Commission‘s] discretion may be, . . . it must bow to the specific directives of Congress.“).19
True, Congress does not have express statutory authority to revoke or amend the
every pronouncement from the Commission together. Moses, 23 F.4th at 355. Any amendments to guideline provisions must comply with the notice-and-comment procedure under the APA and must be reviewed by Congress.
From this, we see that Congress retains substantial control over sentencing matters and the Guidеlines Manual. If Congress disagreed with something the Commission said in the commentary, it could easily revoke or amend the accompanying guideline provision, direct the Commission to rework its manual, or disapprove of the Commission‘s proposed amendments. See 2018 Guidelines, supra, ch. 1, pt. 1, subpt. 2 (“Congress retains authority to require certain sentencing practices and may exercise its authority through specific directives to the Commission with respect to the guidelines.” (citing Kimbrough v. United States, 552 U.S. 85 (2007))).21 And because Congress retains the
ultimate authority over sentencing practices, courts do not violate the separation of powers when deferring to the Commission‘s commentary. Congress serves as a check on too much deference.
Nor does this type of deference aggrandize the Judiciary‘s role in sentencing. Here too the Supreme Court has spoken: “[A]lthough the Commission wields rulemaking power and not the adjudicatory power exercised by individual judges when passing sentence, the placement of the Sentencing Commission in the Judicial Branch has not increased the Branch‘s authority.” Mistretta, 488 U.S. at 395. That‘s because the Commission reflects Congress‘s judgment that sentencing adjudications fall uniquely in the Judiciary‘s purviеw. Indeed, up until the Commission‘s creation, “[i]t was the everyday business of judges, taken collectively, to
In sharp contrast lie executive agencies, which can aggrandize their own authority by implementing vague executive policy and then divining new rules from that policy. In that case, “the legislative and executive powers are united
in the same person” and “there can be no liberty[] because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Talk Am., Inc., 564 U.S. at 68 (Scalia, J., concurring) (quoting Baron de Montesquieu, The Spirit of the Laws 151-52 (Oskar Piest ed., Thomas Nugent trans. 1949)). There‘s nothing tyrannical about judicial deference to the commentary. Unlike executive agencies’ interpretations of their own regulations—which can often arise, without warning, from one-off adjudications or even legal briefs—Congress has reviewed and endorsed the guideline provisions and commentary. And if we‘re unhappy with the results of the commentary‘s application, we have ample methods to express our displeasure and impose appropriate sentences.
3. Due Process
We also reject any notion that Stinson deference is inappropriate on grounds that criminal defendants would have insufficient notice of the Guidelines’ commentary or that the Commission has an incentive to propose vague guideline provisions. First, as stated, Congress reviews the Guidelines Manual and any proposed guideline amendments, which includes new and amended commentary.22 Second, and relatedly, the Commission has no
incentive to promulgate imprecise guideline provisions and commentary that leave defendants and judges unsure of how the Guidelines work. Indeed, passing unhelpful guideline provisions would violate the very purpose of the Commission—to “provide certainty and fairness in meeting the purposes of sentencing.”
D. The district court did not err in deferring to the Guidelines’ commentary.
The Supreme Court has not abrogated Stinson or the deference we have routinely given the Guidelines’ commentary. We thus consider whether the district court properly deferred to commentary in § 2K2.1, which cross-references § 4B1.2 Application Note 1. But we need not look far because we have already analyzed this commentary in Martinez, 602 F.3d 1166. There, we concluded that “Application note 1 to § 4B1.2 can be reconciled with the language of guideline § 4B1.2.” Id. at 1174. We reasoned that the commentary was “a definitional provision,” telling us that “when the guideline uses the word for a specific offense, that word is referring to not just the completed offense but also . . . ‘conspiring’ to commit the offense.” Id. We also deduced that the commentary
reflect[ed] the Sentencing Commission‘s view that when an offense is a crime of violence, so is attempting the offense (as well as aiding and abetting or conspiring to commit the offense), because it presents a “serious potential risk of physical injury to another” comparable to that presented by the completed offense.
Id. (citation omitted).
The district court resorted to the commentary to determine that a “crime of violence” under § 2K2.1(a)(4) included conspiracies. The district court reasoned that the сommentary to § 2K2.1 expressly cross-referenced Application Note 1 to § 4B1.2 and that Application Note 1 defined “crime of violence” to include conspiracies. We see no error in the district court‘s reliance on the commentary or in its application of the relevant guideline provision. See Martinez, 602 F.3d at 1174; Morris, 562 F.3d at 1135-36.23
Maloid resists that conclusion and contends that we limited our rationale in Martinez to crimes listed in the enumerated-offenses clause and not to crimes in the elements clause. We disagree. For one, we never said that in Martinez. Nor does the commentary limit its ambit to the enumerated-offenses clause only. To the contrary, Application Note 1 helps define the elements clause by clarifying that an inchoate crime that “has as an element the use, attempted use, or threatened use of physical force” counts as a crime of violence. Application Note 1 thus avoids clutter, as we reasoned in Martinez, because the Commission need not cram every State‘s permutation of “use of physical force” into the guideline provision. 602 F.3d at 1174. Nor would the Commission have
any reason to limit inchoate offenses to those in the enumerated-offenses clause without also extending them to those with elements of physical force. From the Commission‘s standpoint, both types of crimes pose a “serious potential risk of physical injury to another.” Id.
We further note that during this appeal, the Commission has sent to Congress a proposed amendment that strikes § 4B1.2 Application Note 1 and creates a new guideline provision, § 4B1.2(d). Effective November 2023, the new guideline provision provides, in full, as follows:
Inchoate Offenses Included.—The terms “crime of violence” and “controlled substance offense” include the offenses of aiding and abetting, attempting to commit, or conspiring to commit any such offense.
U.S. Sent‘g Comm‘n, Amendments to the Sentencing Guidelines 55 (May 2023), https://www.ussc.gov/sites/default/files/pdf/amendment-process/official-text-amendments/202305_Amendments.pdf. That the Commission sees fit to move its commentary above the line strengthens our conclusion that it meant Application Note 1 to apply to both the elements and enumerated-offenses clauses.24
III. Generic Definition of Conspiracy Under § 4B1.2
Maloid argues that the district court erred in applying a modern definition of conspiracy in defining generic conspiracy under the Guidelines.
Addressing the categorical approach, he contends that the district court should have applied the 1989 definition of conspiracy because the Commission
A. Plain-error review applies.
We address our standard of review before turning to the merits of Maloid‘s timing argument. Maloid concedes that he did not make this timing argument below and requests plain-error review. The government urges that we should not consider Maloid‘s timing argument because he invited the error below by identifying contemporary authority in a 50-state survey he submitted to the district court.
We apply plain-error review. “[T]he invited-error doctrine precludes a party from arguing that the district court erred in adopting a proposition that the party had urged the district court to adopt.” United States v. Deberry, 430 F.3d 1294, 1302 (10th Cir. 2005). Intent matters: “[A] party must intend to relinquish a right for the invited-error doctrine to apply.” United States v. Moore, 30 F.4th 1021, 1024 (10th Cir. 2022) (citation omitted). Maloid never urged the district court to set the definition of a generic conspiracy as of a specific time. Rather, he provided a survey that included a hodgepodge of state statutes and judicial decisions—some of which predated 1989 and some of which didn‘t. That Maloid‘s survey spanned the decades furnishes strong evidence that he glossed over the timing argument below instead of intentionally relinquishing it. See Zubia-Torres, 550 F.3d at 1205 (“As we have explained, waiver is accomplished by intent, but forfeiture comes about through neglect.” (cleaned up) (citation omitted)).
B. The district court did not commit plain error.
Plain error requires “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Archuleta, 865 F.3d at 1290. Maloid fails the second prong.25 To meet that prong, Maloid “must demonstrate either that this court or the Supreme Court has resolved these matters in his favor, or that the language of the relevant [guideline] is clearly and obviously limited to the interpretation [he] advances.” United States v. Fagatele, 944 F.3d 1230, 1239 (10th Cir. 2019) (citations and internal quotation marks omitted). “In the absence of Supreme Court or circuit precedent directly addressing a particular issue, a circuit split on that issue weighs against a finding of plain error.” United States v. Salas, 889 F.3d 681, 687 (10th Cir. 2018) (citation and internal quotation marks omitted).
Maloid points to no case from us or the Supreme Court that has included bilateral conspiracies in the generic Guidelines’ crime of conspiracy. Nor does he point us to law showing that, in the Guidelines context, we apply the categorical approach at the time of promulgation of a guideline provision or commentary.
Our precedent dictates that we apply the categorical approach when determining whether prior crimes count toward sentencing enhancements under the Guidelines.
And our precedent is clear that when we apply the categorical approach to undefined crimes in the Guidelines, we look to the “generic, contemporary meaning.” Rivera-Oros, 590 F.3d at 1126 (citation omitted). Thus in Faulkner, we assessed the generic definition of attempt by looking to the modern federal definition, citing for instance, United States v. Gordon, 710 F.3d 1124, 1150 (10th Cir. 2013), to note the contemporary elements of attempt. Faulkner, 950 F.3d at 676. We also analyzed the modern Model Penal Code and a 2017 version of Professor Wayne R. LaFave‘s criminal treatise. Id. We have conducted similar analyses in countless other cases under the Guidelines.
Considering this precedent, the district court did not plainly err in relying on the contemporary definition of generic conspiracy. Maloid cites no case in which we have applied the categorical approach to the Guidelines at the time of the Guidelines’ promulgation.
Maloid instead relies on categorical-approach cases that applied to federal statutes, the 1996 Immigration and Nationality Act (INA) and the 1986 ACCA. In Ibarra v. Holder, we applied the categorical approach between a Colorado child-neglect conviction and a “crimе of child abuse” in the INA. 736 F.3d 903, 910-18 (10th Cir. 2013). We reviewed the generic definition of child abuse as it existed in 1996 because that was when Congress amended the INA to include that crime. Id. at 912 (“[W]e must determine what ‘child abuse, child neglect, and child abandonment’ meant in the criminal context in 1996, when Congress amended the INA.“). And in United States v. Stitt, the Supreme Court dealt with a comparison between Tennessee and Arkansas burglary convictions and ACCA‘s generic “violent felony” provision. 139 S. Ct. 399, 406-08 (2018).
The Court analyzed “the scope of generic burglary‘s definition . . . at the time [ACCA] was passed.” Id. at 406.26
Neither case helps Maloid defeat the demanding plain-error standard. Neither Ibarra nor Stitt dealt with the Guidelines nor explained why courts should adopt historical understandings of undefined crimes in the Guidelines.27 That‘s significant because
CONCLUSION
The district court did not err in deferring to the Guidelines’ commentary. Kisor did not сhange the standard of deference we give to the Guidelines’ commentary. And the district court did not err by relying on contemporary sources in its categorical-approach analysis.
We affirm.
United States v. Maloid, No. 21-1422
EID, Circuit Judge, concurring in part and concurring in the judgment.
I join the majority opinion with the exception of Parts II(A) and II(C). Having concluded in Part II(B) that Kisor did not overrule Stinson, maj. op. at 24–26, there is no need to opine on Kisor‘s application to the Sentencing Commission, id. at 19–24, nor the distinction between the Sentencing Commission‘s commentary and other executive agencies’ interpretations, id. at 27–36. I would leave those issues for another day.
Accordingly, I respectfully concur in part and concur in the judgment.