Today's case is complicated but a must read. If you have had a career offender finding based on a conspiracy conviction predicate, it is no longer a valid career offender predicate.
In United States v. Castillo, --- F.4th ---, No. 21-50054 (9th Cir. 2023), the Court vacated Roberto Castillo’s sentence for conspiracy to distribute at least 50 grams of methamphetamine in violation of 21 U.S.C. §§ 846 and 841, and remanded for resentencing.
Here are some highlights from the decision.
Roberto Castillo pleaded guilty to the crime of conspiracy to distribute at least 50 grams of methamphetamine in violation of 21 U.S.C. §§ 846 and 841. The district court concluded that this offense of conviction qualified Castillo as a career offender under United States Sentencing Guidelines Manual (U.S.S.G.) § 4B1.1, as it was a “controlled substance offense,” as defined by U.S.S.G. § 4B1.2(b). However, the text of U.S.S.G. § 4B1.2(b) does not actually 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.” We have previously held that Application Note 1 permissibly expands on, and is consistent with, the text of U.S.S.G. § 4B1.2(b). We must decide whether Kisor v. Wilkie, 139 S. Ct. 2400 (2019), is intervening “clearly irreconcilable” authority that requires us to examine the plain text of the guideline, determine whether there is any ambiguity, and if there is not, to disregard the interpretive gloss set forth in the guideline’s commentary. Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003). In short, we must decide which side of a growing intercircuit split is correct on the question whether Application Note 1 improperly expands the definition of “controlled substance offense” in § 4B1.2(b).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.***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).***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.***Surely, issues which are “neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”Because no prior Ninth Circuit panel has considered the effect of Kisor on the Stinson deference we previously applied to the Guidelines’ commentary, we conclude that Kisor is an intervening decision of a higher authority.***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.***Because we find that § 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, we hold that our precedent in 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 offense is a “controlled substance offense” for career enhancement purposes under the Sentencing Guidelines, we overrule them.***[T][he 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.***Because the text of § 4B1.2(b) unambiguously does not include inchoate offenses, and because we are no longer permitted to rely on the commentary of an unambiguous guideline after Kisor, we hold that Castillo’s conspiracy conviction is not a “controlled substance offense” under the career offender enhancement, § 4B1.1.9 Accordingly, the district court erred by relying on the PSR’s recommendation that Castillo qualifies as a career offender. We vacate Castillo’s sentence and remand for resentencing consistent with this opinion.
