UNITED STATES OF AMERICA, Plaintiff – Appellee, v. TREY CARDALE CAMPBELL, Defendant – Appellant.
No. 20-4256
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
January 7, 2022
Before GREGORY, Chief Judge, and MOTZ and THACKER, Circuit Judges.
PUBLISHED. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, Chief District Judge. (3:19-cr-00026-GMG-RWT-1). Argued: September 24, 2021.
Vacated and remanded for resentencing by published opinion. Judge Motz wrote the opinion in which Chief Judge Gregory and Judge Thacker joined.
ARGUED: Jenny R. Thoma, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Wheeling, West Virginia, for Appellant. Timothy David Helman, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee. ON BRIEF: Aaron D. Moss, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. William J. Powell, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
This appeal raises the question of whether, as the district court determined, commission of an attempt crime constitutes a “controlled substance offense” supporting a career offender sentencing enhancement. Because the Sentencing Guidelines’ definition of a “controlled substance offense” does not include an attempt crime, we must vacate the enhanced sentence imposed in this case and remand for resentencing.
I.
After a jury convicted Trey Cardale Campbell of possession with intent to distribute opiates in violation of
Campbell objected to the sentencing enhancement, arguing that the Sentencing Guidelines did not include attempt within its definition of “controlled substance offense,” and so he did not have the requisite two prior convictions of a “controlled substance offense.” He renews that argument before us.1 The district court overruled Campbell‘s objections to the career offender enhancement, found that he did have two prior convictions of “controlled substance offense[s],” and on that basis imposed a sentence of 180 months imprisonment.
Campbell then timely filed this appeal. We “consider de novo the [question of] whether a prior conviction qualifies under the Guidelines as a ‘controlled substance offense’ for purposes of a sentencing enhancement.” United States v. Allen, 909 F.3d 671, 674 (4th Cir. 2018).
II.
The Sentencing Guidelines provide that a defendant will be sentenced as a “career offender” if, among other requirements, “the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.”
The term “controlled substance offense” means an 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.
The Sentencing Commission‘s commentary in the first application note to
To determine whether a conviction under an asserted predicate offense statute like the West Virginia law constitutes a “controlled substance offense” as defined by the Sentencing Guidelines, we employ the categorical approach. United States v. Ward, 972 F.3d 364, 368 (4th Cir. 2020). If the “least culpable” conduct criminalized by the predicate offense statute does not qualify as a “controlled substance offense,” the prior conviction cannot support a career offender enhancement. United States v. King, 673 F.3d 274, 278 (4th Cir. 2012).
The West Virginia conviction that served as one of the predicate offenses justifying Campbell‘s enhanced sentence arises from a statute that makes it “unlawful for any person to manufacture, deliver, or possess
Campbell maintains that an attempt crime cannot constitute a “controlled substance offense.”2 For this reason, he further contends that his West Virginia conviction does not qualify as a career offender predicate. Given that the district court only identified two predicate controlled substance offenses, if the West Virginia conviction is not a “controlled substance offense,” then Campbell has not committed the two predicate offenses required for the enhanced sentence under
Resolving the question of whether an attempted offense can constitute a “controlled substance offense” has challenged the federal courts because of a crucial difference between the text of
In Stinson v. United States, the Supreme Court directed courts to take commentary to the Sentencing Guidelines as authoritative unless doing so would violate the Constitution or a federal statute, or would be a “plainly erroneous” or “inconsistent” reading of the Sentencing Guideline itself. 508 U.S. 36, 38 (1993). The Court explained that when the “commentary and the guideline it interprets are inconsistent in that following one will result in violating the dictates of the other, the Sentencing Reform Act itself commands compliance with the guideline.” Id. at 43.
Initially, courts read Stinson to support a holding that an inchoate crime like attempt or conspiracy did constitute a “controlled substance offense,” because the Commentary to
In 2018, the D.C. Circuit became the first court to reject this view. See United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018) (Silberman, J.). The Winstead court concluded that “there is no question that . . . the commentary [to
The Sixth Circuit followed the next year, overturning circuit precedent to the contrary in an en banc decision. See United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019) (en banc) (per curiam) (“To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in the guideline itself — no term in § 4B1.2(b) would bear that construction. Rather, the Commission used Application Note 1 to add an offense not listed in the guideline.” (footnote omitted)). Since that time, the Third Circuit, also sitting en banc, has agreed with the Sixth and D.C. Circuits that the Commentary is inconsistent with
The First, Second, Seventh, Eighth, and Eleventh Circuits, however, have continued to hold that inchoate crimes like attempt and conspiracy qualify as controlled substance offenses under
And now, this question has reached our doorstep.
III.
The Supreme Court‘s caution in Stinson that commentary to the Sentencing Guidelines “is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline” guides us. 508 U.S. at 38. With those principles in mind, we begin with the text of
The text of
The Supreme Court has reiterated that defining the same key term in different ways, such that one definition includes a category that the other definition does not, renders those two definitions “inconsistent.” See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 168–69 (2007) (“[T]he two regulations are inconsistent, for the one limits the definition of ‘domestic service employee’ . . . to workers employed by the household, but the other includes in [that definition] . . . persons who are not employed by the household.“). Under this straightforward rule, the text of
This conclusion is hardly novel. Over a century ago, the Supreme Court rejected a similar effort to read attempt offenses into the plain text of a provision that mentioned only substantive crimes. See Keck v. United States, 172 U.S. 434, 444 (1899) (concluding “from the plain text of the law . . . [t]hat while it embraces the act of smuggling or clandestine introduction, it does not include mere attempts to commit the same. Nothing in the statute by the remotest possible implication can be found to cover mere attempts to commit the offense referred to . . . . [T]his contention overlooks the plain distinction between the attempt to commit an offense and its actual commission.“). The same logic applies today. Accordingly, Stinson directs that “the Sentencing Reform Act itself commands compliance with the guideline.” 508 U.S. at 43. Thus, Stinson requires the conclusion that an attempt offense, and so the West Virginia conviction at issue here, is not a “controlled substance offense.”
Moreover, if there were any doubt that under Stinson the plain text requires this result, the Supreme Court‘s recent decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), renders this conclusion indisputable. Stinson held that the commentary deserves the same deference that courts give agencies’ interpretations of their own rules. 508 U.S. at 44–45. In doing so, Stinson relied on the Seminole Rock/Auer doctrine, a line of cases governing this type of deference. Id. at 45 (citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (holding that courts should defer to an agency‘s interpretation of its own regulation “unless it is plainly erroneous or inconsistent with the regulation“)); see also Auer v. Robbins, 519 U.S. 452, 461 (1997).
Kisor limited when courts will afford Seminole Rock/Auer deference. Although in Kisor the Supreme Court refused to jettison Seminole Rock/Auer deference entirely, it explicitly “reinforce[d] . . . the limits” of the doctrine, substantially “cabin[ing]” the circumstances under which courts defer to agencies’ interpretations of their own rules.3 139 S. Ct. at 2408, 2418; see also Romero v. Barr, 937 F.3d 282, 291–92 (4th Cir. 2019) (summarizing Kisor). Under Kisor, “[f]irst and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous . . . [after] exhaust[ing] all the ‘traditional tools’ of construction.” 139 S. Ct. at 2415.
Thus, as Kisor instructs, if the inconsistency between
of statutory construction to determine if
First,
Second, the Sentencing Guidelines’ parallel definition of “crime of violence” immediately prior to the definition of “controlled substance offense” explicitly includes attempt offenses. See
nearby passages. Rotkiske v. Klemm, 140 S. Ct. 355, 361 (2019); see also United States v. Haas, 986 F.3d 467, 479 (4th Cir. 2021) (“[T]he canon of expressio unius est exclusio alterius . . . advises that when language is used in one part of a Guidelines provision and not in another, the exclusion is presumed intentional.“). This is precisely the case here.
We are also mindful that Kisor warned against judicial apathy regarding “the far-reaching influence of agencies and the opportunities such power carries for abuse.” 139 S. Ct. at 2423. These concerns are even more acute in the context of the Sentencing Guidelines, where individual liberty is at stake. The Supreme Court has long held that “defining crimes and fixing penalties are legislative, not judicial, functions.” United States v. Evans, 333 U.S. 483, 486 (1948). And although the Court has held that the Sentencing Guidelines do not violate this separation of powers, that is so because of the checks on the Sentencing Commission‘s authority. United States v. Mistretta, 488 U.S. 361, 393–94 (1989) (“Whatever constitutional problems might arise if the powers of the Commission were vested [solely in the Judiciary], the Commission is not a court . . . and is not controlled by or accountable to members of the Judicial Branch.“). In fashioning the Sentencing Guidelines, “the Commission is fully accountable to Congress, which can revoke or amend any or all of the Guidelines as it sees fit,” and the Commission‘s “rulemaking is subject to . . . notice and comment requirements[.]” Id. In contrast, in fashioning commentary the Commission acts unilaterally, without that continuing congressional role so vital to the Sentencing Guidelines’ constitutionality.
Thus, a holding that “the commentary can . . . add to [the Sentencing Guidelines‘] scope” would “allow circumvention of the checks Congress put on the Sentencing Commission, a body that exercises considerable authority in setting rules that can deprive citizens of their liberty.” Nasir, 982 F.3d at 159, aff‘d on remand, 17 F.4th 459. See also Havis, 927 F.3d at 385–86 (warning against “uniting legislative and judicial authority [in the Sentencing Commission] in violation of the separation of powers.“).
Here, such a holding would not only allow the commentary to add offenses to the Sentencing Guidelines, but to add attempt offenses, which are generally thought of as less culpable than the relevant substantive crime. See, e.g., Bifulco v. United States, 447 U.S. 381, 399 (1980) (“When one focuses on the fact that [a particular statute] penalizes attempts . . . it is not surprising that Congress would provide for less stringent sanctions to be imposed for violations of that provision than for a completed substantive offense.“);
The Government‘s position would effectively empower the Commission unilaterally to set — not just interpret — the rules for the “application of the ultimate governmental power, short of capital punishment,” without congressional involvement. Winstead, 890 F.3d at 1092 (quoting Mistretta, 488 U.S. at 413 (Scalia, J., dissenting)). Particularly when, as in Campbell‘s case, a sentence enhancement potentially translates to additional years or decades in federal prison, we
In short, the plain text of
IV.
In response, the Government lodges three arguments.
A.
First, the Government‘s contends that we have previously resolved the question at issue here and circuit precedent now binds us. This argument is meritless. As multiple district courts within our circuit have recognized, “[t]his issue remains open in the Fourth Circuit.” United States v. Bond, 418 F. Supp. 3d 121, 122 (S.D. W. Va. 2019); see also United States v. Barbour, No. 10 Cr. 69, 2021 WL 4991589, at *3 (W.D. Va. Oct. 27, 2021); United States v. Faison, No. 19 Cr. 27, 2020 WL 815699, at *8 (D. Md. Feb. 18, 2020). Moreover, all of the cases on which the Government relies predate Kisor. Even if we had earlier resolved the question now before us, which we have not, Kisor would have at the very least undermined those cases’ holdings. As we recently explained, a panel is not bound by a panel precedent where that prior decision has been “clearly undermine[d]” by an intervening Supreme Court decision. Payne v. Taslimi, 998 F.3d 648, 655 n.4 (4th Cir. 2021); see also Nasir, 17 F.4th at 471 (“Indeed, after the Supreme Court‘s recent decision in Kisor v. Wilkie, it is clear that [the Government‘s proposed] interpretation is not warranted.” (internal citation omitted)).
But in fact, we would reach the same conclusion regardless of Kisor, because none of the Government‘s cases is on point. In the first, United States v. Kennedy, 32 F.3d 876, 890 (4th Cir. 1994), we held that the Sentencing Commission had the statutory authority to add inchoate offenses like conspiracy and attempt to the definition of a “controlled substance offense,” not that the Commission‘s authority extends so far as to empower it to do so through the Commentary alone. In the second, United States v. Mack, 855 F.3d 581, 585 (4th Cir. 2017), we did not even address “controlled substance offense[s],” but merely held that an attempted “crime of violence” can be a career enhancement predicate; this is unsurprising, given that the “crime of violence” Sentencing Guideline (unlike the “controlled substance offense” Sentencing Guideline at issue here) explicitly includes attempt crimes. Compare
And in the last two cases on which the Government relies, we dealt only with whether using a communication facility to facilitate a controlled substance offense in violation of
At best for the government, the issues before us today “merely lurk in the record” of Allen and Walton, “neither brought to the attention of the court nor ruled upon[.]” Richardson v. Kornegay, 3 F.4th 687, 706 n.13 (4th Cir. 2021) (quoting Webster v. Fall, 266 U.S. 507, 511 (1925)). As we recently reiterated, such cases “are not to be considered as having been so decided as to constitute precedents.” Id.
B.
The Government‘s next argument relies on the word “prohibits” in
“prohibits” implicitly incorporates all attempted versions of the forbidden conduct. Gov‘t Br. at 11-12. A few of our sister circuits have agreed. They reason: (1)
Respectfully, we disagree with this logic for several reasons. Initially, we think the Sixth Circuit is right as a matter of common sense: “the guideline‘s boilerplate use of the term ‘prohibits’ simply states the obvious: criminal statutes proscribe conduct.” Havis, 927 F.3d at 386 n.4. Moreover, an expansive reading of the word “prohibits” raises an “elephants in mouseholes” problem – i.e., it “alter[s] the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. Am. Trucking Ass‘ns, Inc., 531 U.S. 457, 468 (2001). Interpreting “prohibits” to include anything that makes the outlawed conduct more likely to occur would sweep into criminal statutes a vast swath of conduct based on a secondary dictionary definition. Finally, this argument has no logical endpoint. Criminalizing attempted drug distribution surely “hinders” actual drug distribution. But one could make the same argument about money laundering
C.
The Government‘s only remaining argument is that the “text of
Again, we respectfully disagree.
Sentencing Guidelines. Kisor, 139 S. Ct. at 2415; see also Haas, 986 F.3d at 479 (“[W]hen language is used in one part of a Guidelines provision and not in another, the exclusion is presumed intentional.“). In short, the text of
Moreover, this argument too has no logical endpoint. Of course the text of
V.
For all of these reasons, we must vacate Campbell‘s sentence and remand for resentencing consistent with this opinion.
VACATED AND REMANDED FOR RESENTENCING