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. Appeal from the United States District Court for the District of Colorado (D.C. No. 1:20-CR-00151-WJM-1). FILED June 23, 2023. Christopher M. Wolpert, Clerk of Court.
Michael C. Johnson, Assistant United States Attorney (Cole Finegan, United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.
Before PHILLIPS, MURPHY, and EID, Circuit Judges.
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
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 dеcision 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,
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” under
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
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
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.
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).
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 commit felony menacing with a weapon against
We begin by reviewing the relevant guideline provisions and commentary.7 The district court applied the crime-of-violence enhancement contained in
Under
This appeal turns on two questions: Is the commentary at
B. Commentary in the Guidelines
In Stinson, the Supreme Cоurt considered the enforceability of the Guidelines’ commentary. 508 U.S. at 40. In its review, the Court noted that Congress created the Sentencing Commission in the Sentencing Reform Act of
The Court observed that the SRA permitted the Commission to issue guideline provisions and policy statements and “d[id] not in express terms authorize the issuance of commentary.” Id. But the Court noted that the SRA anticipated commentary. See
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, subjeсting the sentence to possible reversal on appeal. See
18 U.S.C. § 3742 . Second, 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
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
Bolstering its view, the Court reasoned that giving controlling weight to the commentary furthered “the role the Sentencing Reform Act contemplate[d] for the Sentencing Commission.” Id. at 45. That was because the SRA did not foreclose the Commission from amending its commentary “if the guideline which the commentary interprets will bear the construction.” Id. at 46. And the statute tasked the Commission with reviewing sentencing materials in “every federal criminal sentence” and “mak[ing] whatever clarifying revisions to the Guidelines conflicting judicial decisions might suggest.” Id. (second quoting Braxton v. United States, 500 U.S. 344, 348 (1991)). Put differently, the Court deduced that Congress did not intend to handicap the Commission in interpreting and clarifying federal sentencing law. Though the Commission could amend a guideline provision to achieve those ends, it could also do the same through clarifying commentary. Id. (“Although amendments to guidelines provisions are one method of incorporating revisions, another method open to the Commission is amendment of the commentary . . . .“).
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 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’
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
“We apply a categorical approach to determine whether a prior conviction falls within U.S.S.G. § 4B1.2(a) . . . .” United States v. Mendez, 924 F.3d 1122, 1124 (10th Cir. 2019). To determine whether a prior conviction is categorically a “crime of violence,” we look to “the elements of the statute of conviction ‘and not to the particular facts underlying’ [the conviction].” United States v. O‘Connor, 874 F.3d 1147, 1151 (10th Cir. 2017) (citation omitted). We compare those elements to “§ 4B1.2(a)‘s definition of ‘crime of violence.‘” United States v. Adams, 40 F.4th 1162, 1165 (10th Cir. 2022) (citation omitted). “If some conduct that would be a crime under the statute would not be a ‘crime of violence’ under
The Guidelines sometimes enumerate crimes without defining their elements. In those instances, we must search for the “generic, contemporary
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
A. Kisor Does Not Reach the Sentencing Commission.
We begin by reviewing Kisor. Kisor settled a nettlesome question in administrative lаw: How much deference should the Judiciary give to executive agencies’ interpretations of their own rules? That question takes us to the text of the Administrative Procedure Act, which largely delegates the role of policing executive agencies to the Judiciary. See
In performing our statutory review, we often must determine what lеvel of deference applies. If overly deferential 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, whо in turn answers to the public.” Id. (citations omitted). So some level of deference makes sense because “Congress, when first enacting a statute, assigns rulemaking power to an agency and thus
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
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
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
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 context.15 It said nothing about whether district courts err in deferring to commentary in the Guidelines or anything about deference to the Commission.
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
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 instead are deciding whether the agency‘s already-provided explanation of its regulation is good enough. E.g., Biodiversity Conservation All. v. Jiron, 762 F.3d 1036, 1062-69 (10th Cir. 2014). And once we endorse the agency‘s explanation, we give that explanation the same force of law as the agency‘s regulation.17
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
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
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
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
From this, we see that Congress retains substantial control over sentencing matters and the Guidelines Manual. If Congress disagreed with something the Commissiоn 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
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 purview. Indeed, up until the Commission‘s creation, “[i]t was thе everyday business of judges, taken collectively, to evaluate and weigh the various aims of sentencing and to apply those aims to the individual cases that came before them.” Id. So our deference to the commentary does not aggrandize our own authority: it‘s our role anyway to determine a proper sentence based on statutory factors.
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
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
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 commentary to § 2K2.1 expressly crоss-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
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.
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
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).
Our precedent dictates that we apply the categorical approach when determining whether prior crimes count toward sentencing enhancements under the Guidelines. For instance, in Faulkner, we employed the categorical approach to determine whether an Oklahoma conviction for endeavoring to commit a controlled-substance offense fit within the Guidelines’ definition of an attempted controlled-substance offense. 950 F.3d at 673. We noted that the Guidelines did “not define attempt, and so we must formulate a generic definition by reference to ‘a wide range of sources . . . , including federal and state statutes, the Model Penal Code, dictionaries, and treatises.‘” Id. at 675-76 (alteration in original) (quoting Mendez, 924 F.3d at 1125). We conducted the same analysis when comparing a Colorado criminal-attempt statute to the Guidelines’ definition of an attempted crime of violence. See Mendez, 924 F.3d at 1124-26.
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
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 “crime of child abuse” in the INA. 736 F.3d 903, 910-18 (10th Cir. 2013). Wе 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).
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 we do not reflexively apply rulings in statutory contexts to the Guidelines. See, e.g., United States v. Brown, 47 F.4th 147, 154 (3d Cir. 2022) (“[L]ongstanding principles of statutory interpretation allow different results under the Guidelines as opposed to under the ACCA.” (citation omitted)); Singh v. Att‘y Gen. of U.S., 677 F.3d 503, 511 (3d Cir. 2012) (“[T]he Guidelines and the INA are like ‘apples and oranges.‘” (citation omitted)). So these cases are a far cry from the “well-settled law” we demand for plain error. Faulkner, 950 F.3d at 678 (citation omitted).
CONCLUSION
The district court did not err in deferring to the Guidelines’ commentаry. Kisor did not change 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.
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.