Inchoate Offenses No Longer Career Offender Predicates in Third Circuit: Nasir
In United States v. Malik Nasir, the full (en banc) Third Circuit Court of Appeals issued an important opinion on the Sentencing Guidelines and what importance judges should give to the Commentary to the Sentencing Guidelines.
Issue Presented: What Priors Count for Imposing Career Offender Enhancement?
The Nasir case included a complicated procedural background, but the fundamental issue before the Third Circuit was whether or not Nasir qualified as a career offender under the Sentencing Guidelines.
Nasir argued that he was not a career offender because one of his prior convictions for “attempting to possess with intent to distribute” did not meet the definition of a “controlled substance offense” under United States Sentencing Guideline 4B1.2(b). If Nasir’s prior conviction did not qualify as a “controlled substance offense” then the career offender enhancement was improper in his case.
Sentencing Guideline Definitions
The relevant dispute in the Nasir case centered on the application of the career offender enhancement under the U.S. Sentencing Guidelines. The Sentencing Guideline sections involving the career offender enhancement are found at USSG 4B1.1 and 4B1.2.
The career offender enhancement applies to defendants charged with certain offenses who have at least two prior felony convictions for either A) a crime of violence or B) a “controlled substance offense.” USSG 4B1.1(a). The Guidelines specifically define a “controlled substance offense” to mean:
“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.”
At sentencing, Nasir’s judge determined he was a career offender because Nasir had two prior convictions which met the definition of a “controlled substance offense.”
Nasir argued that his prior conviction for attempting to possess with intent to distribute cocaine should not qualify as a predicate for the career offender enhancement because the Sentencing Guideline textual definition does not include so called “inchoate crimes.”
What is an Incohate Crime?
Nasir and the Third Circuit discussed at length whether or not the Sentencing Guideline definitions included inchoate crimes. Inchoate is not a normal word to use even among attorneys.
Here is how Black’s Law Dictionary defines inchoate crimes:
“[a] step toward the commission of another crime, the step itself being serious enough to merit punishment.”
Offense, Black’s Law Dictionary (11th ed. 2019).
Common inchoate offenses include “attempt” to commit an underlying crime; “conspiracy” to commit an underlying crime; “solicitation” to commit an underlying crime.
What is important to remember here is that Nasir’s prior conviction was a conviction for ATTEMPTED possession with intent to distribute. That is what made it an “inchoate crime” in the legal jargon sense.
Sentencing Guidelines Versus Online Commentary
Sentencing Guidelines themselves are different from the Sentencing Guideline commentary. Sentencing Guidelines can only be amended after formal notice and rulemaking procedure and are written by the Sentencing Commission itself (who are appointed by the President with Senate confirmation).
Commentary to the Guidelines, however, is a bit different. The Supreme Court essentially treats the commentary to the Guidelines as more similar to an agency regulation than a statute which would have been passed by Congress. This means that the commentary to the Guidelines is placed lower in the hierarchy of authority than the text of the Guidelines themselves.
Recently, the U.S. Supreme Court has cut back on the amount of uncritical deference to agency interpretations, such as the Guideline commentary, that judges should use. In the 2019 Kisor v. Wilkie case, the Supreme Court made clear that judges should apply deference to these agency interpretations of regulations (like the Sentencing Guidelines) only when the regulation (read: Sentencing Guideline) is genuinely ambiguous.
Judges now must look at the text, structure, history, and purpose of a Sentencing Guideline first to determine IF the Sentencing Guideline is ambiguous. When the Guideline is not ambiguous then a judge is not allowed to give any deference to the commentary. This new approach requires a much stricter judicial review and approach before ever consulting Guideline commentary.
Guideline Commentary: We Want to Punish you for Inchoate Stuff Too
Remember, the plain text of the definition of “controlled substance offense” did not mention inchoate crimes such as attempt, conspiracy, or solicitation. See USSG 4B1.2(b).
However, the commentary to that definition includes language which tries to expand the definition to include more crimes. Specifically, commentary includes offenses of “aiding and abetting, conspiring, and attempting to commit such offenses.” USSG 4B1.2 cmt. n.1. This language is obviously not in the text of the Guideline definition itself.
The commentary to the Guideline is thus more expansive and would include more prior convictions for career offender purposes than the plain text definition would on its own.
Court: Guideline is Unambiguous so Commentary is Inapplicable
The Third Circuit determined that the plain text definition of “controlled substance offense” was unambiguous so the more expansive commentary should not be applied. In addition to the plain language, the court contrasted other definitions found in the Guidelines which explicitly included “inchoate” offenses in their text.
The interpretation of regulations like the Sentencing Guidelines ultimately remains in the hands of judges not agencies. Thus, Third Circuit determined that inchoate crimes are not included in the definition of “controlled substance offenses” under USSG 4B1.2(b).
Nasir’s sentence was vacated and the case remanded for resentencing without application of the career offender enhancement.
The result is that many prior convictions for attempts, conspiracy, aiding and abetting, or solicitation of drug crimes cannot be used to impose the career offender enhancement in the Third Circuit.
This is a very big change in existing law. The Third Circuit overruled almost 30 years of precedent which previously allowed the use of “inchoate” drug priors for career offender purposes. The Third Circuit joined the District of Columbia Circuit Court in this ruling.
In light of these decisions, we are hopeful that there will be more favorable rulings in the future limiting the use of overly punitive commentary in sentencing.
Circuit Courts Grapple with Inchoate Prior Issues for Career Offenders
Eleventh Circuit: Definition of "Controlled Substance Offense" Does Not Include Conspiracy: Dupree, No. 19-13776 (11th Cir. 2023)
The district court found Dupree to be a career offender based in part on a prior conviction for conspiracy to possess with intent to distribute a controlled substance in violation of 21 U.S.C. 846. On direct appeal, Dupree argued that his conspiracy conviction could not serve as a predicate for his career offender enhancement because the Guidelines’ definition of “controlled substance offense” does not list conspiracy and other inchoate crimes.
A panel of the Eleventh Circuit affirmed Dupree’s sentence, concluding that prior circuit precedent holding the Guidelines’ commentary controlling foreclosed the argument. Dupree petitioned the Eleventh Circuit for rehearing en banc, which the court granted.
A “controlled substance offense” for career offender purposes is defined under U.S.S.G. 4B1.2(b) as “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 the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.” However, the commentary to the Guidelines adds that the term “controlled substance offense” includes aiding and abetting, conspiracy, and attempt. U.S.S.G. 4B1.2(b) cmt. n.1.
Whether the commentary to the Guidelines is controlling is an issue that has generated a significant split among circuit courts. The Third, Fourth, Sixth, and D.C. Circuits have held that inchoate crimes do not qualify as controlled substance offenses for career offender purposes. The First, Second, Seventh, Eighth, and Ninth have reached the opposite conclusion. The Fifth Circuit recently vacated its decision on the issue and will address the question en banc. United States v. Vargas, 35 F.4th 936 (5th Cir.), reh’g en banc granted, opinion vacated 45 F.4th 1083 (5th Cir. 2022).
In interpreting Supreme Court precedent and the relevant Guidelines, the Eleventh Circuit held that Section 4B1.2 unambiguously excludes inchoate offenses and the commentary’s interpretation is not binding. Joining the Third, Fourth, Sixth, and D.C. Circuits, the Eleventh Circuit overruled its prior precedent holding that the Guidelines commentary constitutes a binding interpretation of 4B1.2(b). As such, the appellate court found that Dupree is ineligible for the career offender enhancement because his conspiracy conviction did not qualify as a “controlled substance offense” under the plain text of the Guidelines. Accordingly, Dupree’s sentence was vacated and remanded to the district court for resentencing without the career offender enhancement.
Did your Career Offender Enhancement Include Inchoate Priors?
Today, it would be ineffective assistance of counsel for an attorney to allow imposition of the career offender enhancement based on inchoate drug priors without an objection. This is the clear law of the Third Circuit.
However, the reasoning used by the Third Circuit is likely to be extended by other courts in the future too. Even if your case is outside the Third Circuit your attorney should be making these arguments on your behalf.
Reach out to our office if you were recently sentenced as a career offender and you think your prior convictions should not have counted.
We may be able to help you challenge your case and help you obtain relief.