Sunday, June 3, 2018

Circuit split: USSG § 4B1.2's "commentary offenses"

We have over the past several years blogged about advocates’ need to be weary of enumerated “commentary offenses” that are inconsistent with the guidelines themselves. (See, e.g., here and here.) And last week, in United States v. Winstead, the D.C. Circuit created a new and notable circuit split on the issue.

The Winstead court acknowledged that in Stinson v. United States, 506 U.S. 36 (1993) the U.S. Supreme Court held that the commentary to the guidelines should be treated as an agency’s interpretation of its own legislative rule. (Citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). “Thus, under this Seminole Rock deference, 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.”  
   
Irrespective of sister-circuit precedent holding otherwise, the D.C. Circuit found that “there is no question” that the commentary to § 4B1.2 is inconsistent with the guideline in that the commentary adds inchoate crimes that are not included in the guideline itself. (In this case specifically, the crime of attempted distribution). In so doing, the the U.S. Sentencing Commission has exceeded its authority under Stinson

Section 4B1.2(b) presents a very detailed “definition” of controlled substance offense that clearly excludes inchoate offenses . . . . [T]he Commission showed within § 4B1.2 itself that it knows how to include attempted offenses when it intends to do so. See USSG § 4b1.2(a)(1) (defining a “crime of violence” as an offense that “has an element the use, attempted use, or threatened use of physical force . . . .”) . . . . [S]urely Seminole Rock deference does not extend so far as to allow the Commission to invoke its general interpretive authority via commentary . . . to impose such a massive impact on a defendant with no grounding in the guidelines themselves.

The D.C. Circuit’s conclusion: Counsel’s failure to raise this sentencing issue before the district court, which categorized the defendant as a career criminal under § 4B1.1(a), constituted ineffective assistance of counsel under Strickland as a matter of law. “If the Commission wishes to expand the definition of ‘controlled substance offenses’ to include attempts, it may seek to amend the language of the guidelines by submitting the change for congressional review.”

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