United States v. Moses

United States v. Moses

Opinion

 [*348]  NIEMEYER, Circuit Judge:

In this appeal, we determine the enforceability of and the weight to be given the official commentary of the Sentencing Guidelines. ] And to make that determination, we must consider whether we are required to continue to apply the rules set forth in Stinson v. United States, 508 U.S. 36, 113 S. Ct. 1913, 123 L. Ed. 2d 598 (1993), which held that Guidelines commentary, even when the related Guideline is unambiguous, is authoritative and therefore binding [**2]  on courts unless the commentary is inconsistent with law or the Guideline itself, id. at 38, 43, 44, or whether Stinson was overruled by the Supreme Court's recent decision in Kisor v. Wilkie, 139 S. Ct. 2400, 204 L. Ed. 2d 841 (2019), which limited controlling deference to an executive agency's reasonable interpretation of its own regulations to where "the regulation is genuinely ambiguous," id. at 2415 (emphasis added). Thus, under Stinson, Guidelines commentary would be authoritative and binding regardless of whether the Guideline to which it is attached is ambiguous, whereas under Kisor, Guidelines commentary would receive such deference only if the Guideline is "genuinely ambiguous." The distinction is meaningful to federal courts' continued reliance on Guidelines commentary when sentencing criminal defendants.

In the case before us, after Lenair Moses was convicted of two counts of drug trafficking, the district court sentenced him as a career offender under U.S.S.G. § 4B1.1, based on two prior drug-trafficking convictions. Moses argues, however, that the conduct involved in one of the prior convictions that was counted as a predicate was actually part of the same course of conduct as his current offenses and therefore should have been considered "relevant conduct" under § 1B1.3, rather  [*349]  than as part of [**3]  his criminal history, thereby resulting in a substantially lower Guidelines sentencing range.

Application Note 5(C) to § 1B1.3, however, defines the line between a defendant's conduct involved in a prior conviction and his relevant conduct, stating that "conduct associated with a sentence that was imposed prior to" the conduct of the instant offense "is not considered" to be relevant conduct. (Emphasis added). Therefore, if Application Note 5(C) is authoritative and binding, the conduct associated with Moses's prior offense — an offense for which he was convicted and sentenced years before he committed the instant offenses — was properly found not to be conduct relevant to his current offenses. Moses argues, however, that Kisor controls whether Application Note 5(C) is binding and that when Kisor's limitations on deference are applied, "Application Note 5(C) is not entitled to controlling weight." Accordingly, he contends that the district court erred in relying on Application Note 5(C) to sentence him as a career offender.

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