The Guidelines Commentary: That’s Just Like, Uh, Your Opinion, Man

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Written by Nicole M. Kaplan:

The en banc Eleventh Circuit recently issued an opinion in United States v. Dupree, 2023 WL 227633 (11th Cir. Jan 18, 2023). The first big takeaway is that inchoate crimes (conspiracy and attempt) are not “controlled substance offenses” under U.S.S.G. § 4B1.2(b). So, none of your client’s prior attempt and conspiracy convictions (including drugs and crimes of violence) count to make him a career offender or to increase his base offense level under U.S.S.G. § 2K2.1. You can avoid the career-offender enhancement entirely by pleading in the federal case to a conspiracy or attempt crime instead of a substantive offense. (For now. Stay tuned for updates on proposed guideline amendments.)

The second big win in Dupree is the court’s holding that Kisor v. Wilkie, 139 S. Ct. 2400 (2019), applies to the sentencing guidelines. This is a VERY big deal. Automatic deference to the guideline commentary is over. If the text of a guideline is not ambiguous, a court cannot look to the commentary at all. And the court can only decide the guideline is ambiguous after using all the tools of statutory construction. The Sixth and Ninth Circuits, for example, have already determined that “loss” under the fraud guideline does not mean $500 per credit or gift card. US v. Riccardi, 989 F.3d 476, 488-89 (6th Cir. 2021); US v. Kirilyuk, 29 F.4th 1128, 1134 (9th Cir. 2022). The Third Circuit recently held that “loss” unambiguously means “actual loss” and not “intended loss.” US v. Banks, 55 F.4th 246, 258 (3d Cir. 2022).

Here is the takeaway: We should all be thinking about every guideline enhancement and whether the commentary should be challenged. The stolen gun enhancement under U.S.S.G. § 2K2.1 and the meaning of loss under U.S.S.G. § 2B1.1 are just a couple of enhancements being litigated under Kisor and now Dupree. (Shout out to Dupree’s counsel, Conrad Kahn, Appellate Chief and AFPD, M.D. Florida.) Please reach out if you are interested in raising these challenges. We would love to hear from you. And remember: The commentary is just, like, uh, the Commission’s opinion; it’s not necessarily the law.

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