UNITED STATES OF AMERICA v. ROBERTO CASTILLO, AKA Roberto Enrique Castillo, AKA Ito, AKA Shadow
No. 21-50054
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
May 31, 2023
D.C. Nos. 2:19-cr-00764-DSF-1, 2:19-cr-00764-DSF
Opinion by Judge Wardlaw
OPINION
Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding
Argued and Submitted November 17, 2022 Pasadena, California
Filed May 31, 2023
Before: Kim McLane Wardlaw and William A. Fletcher, Circuit Judges, and Matthew F. Kennelly,* District Judge.
Opinion by Judge Wardlaw
Criminal Law
The panel vacated Roberto Castillo‘s sentence for conspiracy to distribute at least 50 grams of methamphetamine in violation of
The text of U.S.S.G. § 4B1.2(b) does not include “conspiracy to distribute” in its list of controlled substance offenses. Rather, Application Note 1 states that “controlled substance offenses” include “offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” This court has previously held that Application Note 1 permissibly expands on, and is consistent with, the text of § 4B1.2(b). See United States v. Vea-Gonzales, 999 F.2d 1326 (9th Cir. 1993), overruled on other grounds by Custis v. United States, 511 U.S. 485 (1994); United States v. Crum, 934 F.3d 963 (9th Cir. 2019), cert. denied, 140 S. Ct. 2629 (2020).
Under Stinson v. United States, 508 U.S. 36 (1993), the Guidelines’ commentary must be given controlling weight unless it is plainly erroneous or inconsistent with the
Explaining that the more demanding standard articulated in Kisor applies to the Guidelines’ commentary, the panel held that Kisor is an intervening decision and is clearly irreconcilable with the holdings in Vea-Gonzales and Crum. Applying the traditional tools of statutory construction to the text of the guideline, as Kisor instructs, the panel concluded that § 4B1.2(b) unambiguously identifies a list of crimes that does not include inchoate offenses. Because § 4B1.2(b)‘s definition of “controlled substance offense” is unambiguous, the Supreme Court‘s decision in Kisor now makes it impermissible to defer to Application Note 1 to determine whether conspiracy fits into this definition. Accordingly, the panel held that Crum and Vea-Gonzales applied an inappropriate level of deference to § 4B1.2(b)‘s commentary, and consequently, these cases are irreconcilable with Kisor‘s instructions regarding review of agency regulations and deference to an agency‘s, including the Sentencing Commission‘s, interpretive commentary. To the extent that Crum and Vea-Gonzales hold that an inchoate
Further, deference to Application Note 1 raises grave constitutional concerns. The panel wrote that the Sentencing Commission‘s lack of accountability in its creation and amendment of the commentary raises constitutional concerns when a court defers to commentary that expands unambiguous Guidelines, particularly because of the extraordinary power the Commission has over individuals’ liberty interests. Here, Castillo‘s career offender enhancement increased his advisory sentence range from 151–188 months to 262–327 months under the Sentencing Guidelines. And his nearly 22-year sentence—imposed by the district court based on the Sentencing Guidelines—was approximately 7 to 10 years greater than it would have been without the enhancement, assuming the district court would have sentenced Castillo within the advisory sentence range. The panel wrote that surely neither Kisor nor Stinson permitted the Sentencing Commission to invoke its general interpretative authority via commentary to impose such a massive impact on a defendant with no grounding in the Guidelines themselves.
Because the text of § 4B1.2(b) unambiguously does not include inchoate offenses, and because the court is no longer permitted to rely on the commentary of an unambiguous guideline after Kisor, the panel held that Castillo‘s conspiracy conviction is not a “controlled substance offense” under § 4B1.1.
James H. Locklin (argued), Deputy Federal Public Defender; Cuauhtemoc Ortega, Federal Public Defender; Federal Public Defender‘s Office; Los Angeles, California; for Defendant-Appellant.
David R. Friedman (argued) and Lynda Lao, Assistant United States Attorneys; Bram M. Alden, Assistant United States Attorney, Criminal Appeals Section Chief; Tracy L. Wilkison, United States Attorney; Office of the United States Attorney; Los Angeles, California; for Plaintiff-Appellee.
OPINION
WARDLAW, Circuit Judge:
Roberto Castillo pleaded guilty to the crime of conspiracy to distribute at least 50 grams of methamphetamine in violation of
Because we conclude that we must apply the Supreme Court‘s decision in Kisor, and that Application Note 1 improperly expands the definition of “controlled substance offense” in U.S.S.G. § 4B1.2(b), we vacate Castillo‘s sentence and remand for resentencing consistent with this opinion.
I.
In May 2019, Roberto Castillo sold approximately 14 grams of methamphetamine to a government informant for $100. In June 2019, he sold the same informant 53 grams of methamphetamine for $400. In July 2019, Castillo and Casandra Cachu, Castillo‘s codefendant, arranged to sell the informant about 111.1 grams of methamphetamine for $440. Castillo and the informant made arrangements by phone, and Cachu delivered the drugs to the informant. In the course of these events, Castillo allegedly distributed or “conspired to distribute” a total of approximately 178.1 grams of methamphetamine.
At sentencing, the district court found the Presentence Report (PSR) prepared by the Probation Officer accurate and correct, and so adopted it. For the offense of conviction, the PSR calculated the base offense level at 32 based on the Drug Quantity Table set forth in U.S.S.G. § 2D1.1(c). The PSR then found that Castillo had two prior convictions under
II.
Under the Guidelines, a defendant is a “career offender” if: (1) the defendant was at least 18 years old at the time of the instant offense of conviction; (2) the instant offense is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a).
Sentencing Guideline § 4B1.2 provides the definitions for the terms used in U.S.S.G. § 4B1.1. Subsection 4B1.2(b) defines the term “controlled substance offense” as:
[A]n offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
Id. § 4B1.2(b).
The text of § 4B1.2(b) does not identify conspiracy to commit any of the offenses as such an offense, but the guideline‘s commentary expands the definition to include
Conspiracy is an inchoate offense that is separate and independent from the crime that is the subject of the conspiracy. See United States v. Iribe, 564 F.3d 1155, 1160 (9th Cir. 2009) (“Conspiracy to commit a crime is not equivalent to the completion of that crime.“). Black‘s Law Dictionary defines “inchoate offense” as a “step toward the commission of another crime, the step in itself being serious enough to merit punishment.” Inchoate Offense, BLACK‘S LAW DICTIONARY (11th ed. 2019).
Black‘s lists the three inchoate offenses as “attempt, conspiracy, and solicitation.” Id. Because “[b]y definition” inchoate crimes “do not require completion of the criminal objective,” United States v. Macias-Valencia, 510 F.3d 1012, 1014 (9th Cir. 2007), the Guidelines distinguish between inchoate offenses and underlying substantive offenses. For instance, the Guidelines note that if the offense is a conspiracy to commit a substantive offense and is not covered by a specific offense guideline, the base level must be decreased by 3 levels unless certain narrow circumstances apply. U.S.S.G. § 2X1.1(b)(2), (c). And for career offender purposes, the guideline‘s text includes an inchoate offense—“attempted use“—in the definition of a “crime of violence,”
As a general matter, “[w]e review the district court‘s interpretation of the Sentencing Guidelines de novo.” United States v. Rivera-Constantino, 798 F.3d 900, 902 (9th Cir. 2015) (citing United States v. Grajeda, 581 F.3d 1186, 1188 (9th Cir. 2009)). But here, the parties dispute the proper standard to apply to our review of the district court‘s interpretation of the Sentencing Guidelines because Castillo did not challenge the career offender adjustment in district court. If an appellant fails to raise an issue in the district court proceedings,
The Government argues that we should apply plain error review under
In United States v. McAdory, 935 F.3d 838 (9th Cir. 2019), we held that “we are not limited to [plain error] review when we are presented with [1] a question that is purely one of law and [2] where the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court.” Id. at 841–42 (second and third alterations in original). Therefore, because the question in McAdory—whether an offense qualifies as a predicate felony—was a purely legal question, we applied the de novo standard of
But the assumption that de novo review applies to purely legal questions that have not been argued below has been called into question both by our court and by the Supreme Court. See United States v. Zhou, 838 F.3d 1007, 1015–16 (9th Cir. 2016) (Graber, J., concurring) (“Our ‘pure question of law’ exception contradicts Rule 52(b) and the Supreme Court‘s case law.“); Henderson, 568 U.S. at 269–70 (applying the plain error standard to a “[d]istrict [c]ourt‘s decision on a substantive legal question that was unsettled at the time the trial court acted“).
Because McAdory controls in our circuit but it remains an open question “whether [our] precedent can be reconciled with the Supreme Court‘s cases interpreting
Castillo argues that the district court erred by concluding that his offense of conviction—conspiracy to distribute—is a “controlled substance offense” that qualifies him as a career offender under U.S.S.G. § 4B1.1.
We agree. Castillo‘s sentence was for a drug conspiracy. The Sentencing Guidelines’ definition of “controlled substance offense” for career offender enhancements currently does not include inchoate crimes like conspiracies, although the commentary extends the definition to such crimes. U.S.S.G. § 4B1.2(b), application note 1. Because only the commentary includes inchoate crimes, and the text of the guideline unambiguously does not, applying the Supreme Court‘s Kisor analysis, we must conclude that Castillo‘s conspiracy conviction does not qualify as a “controlled substance offense” under U.S.S.G. § 4B1.2(b).
A.
The Government argues that our precedent in Vea-Gonzales and Crum foreclose Castillo‘s argument that his conspiracy to distribute conviction is not a “controlled substance offense.”2
Twenty-six years later, in Crum, we again addressed the question whether “Application Note 1 of § 4B1.2 lacks legal force because it is inconsistent with the text of the guideline.” 934 F.3d at 966. We explained that if it were inconsistent, courts would be prohibited “from relying on the commentary to expand the definition of ‘controlled substance offense’ to include solicitation“—the predicate crime at issue in Crum. Id. We further noted the developing
Kisor was decided half a year after oral argument in Crum, and was not cited to the Crum panel before it issued its decision. The decision does not indicate that the Crum panel considered in any way the effect of Kisor‘s new rules of guideline interpretation on the reasoning of Vea-Gonzales. We do so now.
B.
In Stinson v. United States, 508 U.S. 36, 38–41 (1993)—decided 30 years ago as of this month—the Supreme Court clarified the legal force of the Guidelines’ commentary. It held that “commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Id. at 39.
Therefore, under Stinson, commentary “must be given ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.‘” Id. at 45 (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). Notably, under Stinson deference, commentary “provides concrete guidance as to how even unambiguous guidelines are to be applied in practice.” Id. at 44. As a result, even when commentary may expand the meaning of the Guidelines, if it is not plainly inconsistent with the Guidelines, it is binding on the federal courts. Id. at 44–45; see also Auer v. Robbins, 519 U.S. 452, 461 (1997) (holding that a federal agency‘s interpretation of a regulation is controlling where it is not “plainly erroneous or inconsistent with the regulation” (internal quotation marks and citation omitted)).
Stinson‘s broad deference to the Guidelines’ commentary—as well as the broad deference afforded to
The more demanding deference standard articulated in Kisor applies to the Guidelines’ commentary. Kisor directly examined and narrowed Seminole Rock and Auer deference in the context of an administrative agency‘s interpretation of its own regulation, noting that such deference is not permitted without first finding the regulation ambiguous. Stinson deference is directly grounded in Seminole Rock and Auer deference. Indeed, the deference standard articulated by the Court in Stinson—that commentary “must be given ‘controlling weight unless it is plainly erroneous or inconsistent‘” with the guideline‘s text—is a direct quotation from Seminole Rock. Stinson, 508 U.S. at 45 (quoting Seminole Rock, 325 U.S. at 414). And although Kisor did not distinguish between an agency‘s interpretation of its own regulations and the commentary‘s interpretation of the Guidelines, “the only way to harmonize [Kisor and Stinson] is to conclude that Kisor‘s gloss on Auer and Seminole Rock applies to Stinson.” United States v. Dupree, 57 F.4th 1269,
C.
Castillo argues that after Kisor, Vea-Gonzales and Crum are no longer binding on us on the question whether Application Note 1 is a permissible interpretation of U.S.S.G. § 4B1.2(b). We are generally bound by our own precedent. However, “a three-judge panel may reexamine normally controlling circuit precedent in the face of an intervening United States Supreme Court decision” in certain narrow circumstances such as “where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority.” See Miller, 335 F.3d at 892–93.
Castillo‘s argument tees up two questions: (1) is Kisor an intervening decision, and (2) is Kisor clearly irreconcilable with our prior decisions, such that we may reexamine our precedent as a three-judge panel? We answer both questions in the affirmative. Kisor is an intervening decision of a higher authority that is clearly irreconcilable with our holdings in Vea-Gonzales and Crum.
1.
Kisor serves as an intervening decision. The Crum panel did not address the effect of Kisor on our deference to Application Note 1. The Government argues that because
We disagree. The Supreme Court issued the Kisor decision after we heard oral argument in Crum, and less than two months before the Crum panel rendered its opinion. The litigants did not raise Kisor to the panel before it issued its decision. The Crum panel applied Stinson‘s deference standard to reach its holding, and expressly held it was not aware of intervening higher authority.3 Crum, 934 F.3d at 967.
Contrary to the Government‘s suggestion, no panel in our circuit has considered Kisor‘s effect on our interpretation of Application Note 1 since Crum. In United States v. House, 31 F.4th 745 (9th Cir. 2022) (per curiam), we stated that we were “bound by Crum” to hold that Application Note 1 “expands the prohibited conduct” of § 4B1.2 to inchoate offenses. Id. at 749, 753. The House decision did not mention Kisor; nor did the parties raise the potential effect of Kisor on the legal force accorded to Application Note 1 in their briefings. See generally Parties’ Briefings, United
Nor have we decided how Kisor affects the extent of deference owed to other commentary interpreting the Guidelines. In United States v. Kirilyuk, 29 F.4th 1128 (9th Cir. 2022)—decided three years after Kisor—we applied Stinson deference to conclude that Application Note 3(F)(i)‘s interpretation of “loss” for calculating the applicable offense level for crimes such as credit card fraud under U.S.S.G. § 2B1.1 is not legally binding on courts. Id. at 1134. We reasoned that the Application Note, which defined “loss” accorded to a stolen credit card as an automatic $500, is inconsistent with the plain meaning of the word “loss” in the guideline. Id. at 1137. We chose “not [to] express a view” on whether we are required to “apply[] the narrower deference set out in [Kisor],” because the Application Note in that instance was not binding even under the broader test laid out in Stinson. Id. at 1138–39.
Because neither Vea-Gonzales, Crum, nor any other Ninth Circuit decision analyzed Application Note 1‘s validity under Kisor, no “case binds us on this question.” Kirilyuk, 29 F.4th at 1134 (noting that even though “two published cases” had interpreted and applied the application note at issue, “no Ninth Circuit case ha[d] considered whether [the] Application Note . . . conflicts with the meaning of ‘loss’ in the Guidelines, and therefore the issue
Because no prior Ninth Circuit panel has considered the effect of KisorStinson deference we previously applied to the Guidelines’ commentary, we conclude that Kisor is an intervening decision of a higher authority.
2.
Kisor‘s reasoning is clearly irreconcilable with Vea-Gonzales and Crum. Applying the traditional tools of statutory construction to the text of the guideline, as Kisor instructs, we conclude that § 4B1.2(b) unambiguously identifies a list of crimes that does not include inchoate offenses. The Government‘s argument that Kisor is not irreconcilable with Vea-Gonzales and Crum because “either the career offender guideline applies here unambiguously [and encompasses conspiracies], or the commentary is entitled to Kisor deference because the guideline is ambiguous,” is not supported by the text of § 4B1.2(b).
Section 4B1.2(b) sets forth the specific offenses that qualify as controlled substance offenses—manufacturing, importing, exporting, distributing, dispensing, or possessing. The canon of construction, expressio unius est exclusio
alterius, directs us to infer from Congress‘s express inclusion of enumerated offenses that its exclusion of inchoate crimes was intentional. See United States v. Nasir, 17 F.4th 459, 471–72 (3d Cir. 2021) (en banc); United States v. Winstead, 890 F.3d 1082, 1091 (D.C. Cir. 2018). Because the plain text of
Further, the exclusion of inchoate offenses in
Here, this distinction between definitions in neighboring subsections within the same provision shows that the drafters knew how to include inchoate offenses in defining
a.
We are not alone in re-evaluating our precedent in light of the Supreme Court‘s decision in Kisor. Prior to Kisor, circuit courts were already divided on whether to afford deference to Application Note 1 in determining whether
Before Kisor, when the more permissive deference standard laid out in Stinson was the law of the land, only the D.C. and Sixth Circuits declined to defer to Application Note 1 in defining “controlled substance offenses.” See Winstead, 890 F.3d at 1091; United States v. Havis, 927 F.3d 382, 387 (6th Cir. 2019) (en banc) (per curiam). These circuits held that, under Stinson, the definition of “controlled substance offense” does not include inchoate offenses.
The D.C. Circuit in Winstead held that
The Sixth Circuit agreed with Winstead and held that “[t]he text of
However, before Kisor was decided, the majority of the remaining circuits agreed with our decisions in Vea-Gonzales and Crum that because Application Note 1 was consistent with the “controlled substance offense” guideline, courts would defer to it, making inchoate offenses “controlled substance offenses.” See United States v. Piper, 35 F.3d 611, 617 (1st Cir. 1994); United States v. Jackson, 60 F.3d 128, 131 (2d Cir. 1995); United States v. Hightower, 25 F.3d 182, 187 (3d Cir. 1994), overruled by Nasir, 17 F.4th 459; United States v. Mendoza-Figueroa, 65 F.3d 691, 692-93 (8th Cir. 1995) (en banc); United States v. Smith, 54 F.3d 690, 693 (11th Cir. 1995), overruled by Dupree, 57 F.4th 1269; see also United States v. Walton, 56 F.3d 551, 555–56 (4th Cir. 1995) (relying on Application Note 1 without explicitly discussing the consistency between the commentary and the “controlled substance offense” guideline or conducting a deference analysis); United States v. Lightbourn, 115 F.3d 291, 293 (5th Cir. 1997) (same); Boyer v. United States, 55 F.3d 296, 297–98 (7th Cir. 1995) (same); United States v. Allen, 24 F.3d 1180, 1185–86 (10th Cir. 1994) (same).
After the Supreme Court issued its decision in Kisor, however, the Third, Fourth, and Eleventh Circuits joined the Sixth and D.C. Circuits to hold that we cannot defer to Application Note 1 to interpret
In Nasir, the Third Circuit overturned its prior ruling in Hightower, 25 F.3d at 187—in which it had relied on Stinson‘s understanding of deference to commentary—after
Our interpretation of the commentary at issue in Hightower – the same commentary before us now – was informed by the then-prevailing understanding of the deference that should be given to agency interpretations of their own regulations. Thus, although we recognized that the commentary expanded and did not merely interpret the definition of “controlled substance offense,” we nevertheless gave it binding effect. In doing so, we may have gone too far in affording deference to the guidelines’ commentary under the standard set forth in Stinson. Indeed, after the Supreme Court‘s recent decision in [Kisor], it is clear that such an interpretation is not warranted.
The Third Circuit acknowledged that the Supreme Court in Kisor “cut back on what had been understood to be uncritical and broad deference to agency interpretations of regulations and explained that Auer, or Seminole Rock, deference should only be applied when a regulation is genuinely ambiguous.” Id. at 471. Applying Kisor‘s refined deference standard, the Nasir court held that “a plain-text reading of [§] 4B1.2(b)” indicates that it does not include inchoate crimes. Id. at 471; see also Riccardi, 989 F.3d at 485 (recognizing that broad deference to Guidelines’ commentary “could not stand after Kisor,” and that Kisor “must awake us ‘from our slumber of reflexive deference’ to the commentary” (citation omitted)); Mountain Cmtys. for Fire Safety v. Elliott, 25 F.4th 667, 675 (9th Cir. 2022)
And recently, in Dupree, the Eleventh Circuit joined the Third Circuit by overruling its prior holdings in United States v. Weir, 51 F.3d 1031 (11th Cir. 1995), and Smith, 54 F.3d 690, in light of Kisor to conclude that “the definition of ‘controlled substance offense’ in
The Fourth Circuit has also held that an attempt crime does not constitute a “controlled substance offense” under Kisor because the guideline‘s plain text does not include inchoate crimes. Campbell, 22 F.4th at 447. The Campbell court determined that this was an issue of first impression, even though it had applied Application Note 1 in its prior decision in United States v. Kennedy, 32 F.3d 876 (4th Cir. 1994). Id.; see also Kennedy, 32 F.3d at 888 (deferring to Application Note 1 and determining that a defendant convicted of conspiracy to distribute cocaine qualified as a career offender under
On the other side of the post-Kisor split, the First, Second, Seventh, Eighth, and Tenth Circuits have continued to defer to Application Note 1. Significantly, however, while these opinions were published after the Supreme Court‘s decision in Kisor, nearly all fail to address how Kisor affects deference to the Guidelines’ commentary. See United States v. Richardson, 958 F.3d 151, 154–55 (2d Cir. 2020) (relying on Stinson and prior circuit precedent to conclude that Application Note 1 is binding, without engaging in an analysis of Kisor); United States v. Smith, 989 F.3d 575, 583–85 (7th Cir. 2021) (continuing to follow its pre-Kisor precedent which deferred to the commentary of
Only the First Circuit has held that Kisor is not irreconcilable with its circuit precedent. In United States v. Lewis, 963 F.3d 16 (1st Cir. 2020), cert. denied, 141 S. Ct. 2826 (2021), the First Circuit concluded that “circuit precedent forecloses” an argument that the definition of “controlled substance offense” does not include inchoate crimes, even after the Supreme Court‘s decision in Kisor. Id. at 22–23. Although the Lewis court noted that Kisor requires that we not afford deference unless a regulation is genuinely ambiguous, it ultimately held that it “do[es] not find anything in [its] prior opinions suggesting that those panels understood themselves as straying beyond the zone of genuine ambiguity in deeming Application Note 1 consistent with
We are unpersuaded by the First Circuit‘s decision. The Lewis court determined it was bound to follow its prior panels under the “law of the circuit doctrine” because its circuit precedent interpreted
In our circuit, however, we cannot state with confidence that prior panels have interpreted
Additionally, the Lewis court made a conclusory finding that
D.
Because we find that
Accordingly, we hold that our precedent in Crum and Vea-Gonzales applied an inappropriate level of deference to
V.
Further, deference to Application Note 1 raises grave constitutional concerns. The Sentencing Commission, “established as an independent commission in the judicial branch of the United States,”
But unlike the Sentencing Guidelines themselves, the Guidelines’ commentary is not required to undergo notice and comment requirements; nor is it subject to any other mandated safeguards to cabin the Sentencing Commission‘s broad authority.8 See Campbell, 22 F.4th at 446 (“[I]n fashioning commentary the Commission acts unilaterally, without that continuing congressional role so vital to the Sentencing Guidelines’ constitutionality.“). For the most part, the fact that the commentary is not subject to constitutional safeguards is unproblematic because we defer to commentary that “serves only to interpret the Guidelines’ text” and “has no independent legal force.” Havis, 927 F.3d at 386.
However, the Sentencing Commission‘s lack of accountability in its creation and amendment of the commentary raises constitutional concerns when we defer to commentary such as Application Note 1 that expands unambiguous Guidelines, particularly because of the extraordinary power the Commission has over individuals’
Indeed, “the Sentencing Commission has established significant, legally binding prescriptions governing application of governmental power against private individuals” just “short of capital punishment.” Mistretta, 488 U.S. at 413 (Scalia, J., dissenting) (footnote omitted). As we noted in Crum, by “exercis[ing] its interpretive authority to expand the definition of ‘controlled substance offense‘... without any grounding in the text of
Here, Castillo‘s career offender enhancement increased his advisory sentence range from 151–188 months to 262-327 months under the Sentencing Guidelines. And his nearly 22-year sentence—imposed by the district court based on the Sentencing Guidelines—was approximately 7 to 10 years greater than it would have been without the
VI.
Because the text of
VACATED and REMANDED.