T.W. Brown

T.W. Brown is an Assistant Federal Public Defender in the Northern District of Texas and works in the Fort Worth division. He graduated from the University of Arkansas School of Law in May 2013 and joined the FPD’s office in January 2015. He spent a few years in the trial division and has been in appeals since May 2019. If you have any questions about this article, you can reach him at .

Federal Corner: July/August 2022


In United States v. Vargas, the Fifth Circuit addressed a tricky question—how should a recent Supreme Court decision limiting the deference owed to an agency’s interpretation of its own regulations affect a district court’s deference to the commentary found in the Guidelines Manual?1 After likening Guidelines commentary to “an agency’s interpretation of its own legislative rules,” the Supreme Court announced the following rule in Stinson v. United States: “[C]ommentary 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.”2 That level of deference may no longer be appropriate. In 2019, the Supreme Court clarified how and when a district court should defer to an agency’s interpretation of its own regulations.3 That opinion—Kisor v. Wilkie—addressed the level of deference described in Stinson and noted that it applies only if “the regulation [at issue] is genuinely ambiguous.”4 Whether Kisor overruled Stinson was an open question in the Fifth Circuit for almost three years, but on May 31, 2022, a three‑judge panel held that Stinson remained good law.5 This resulted in a short opinion authored by Judge Cory Wilson, which affirmed the appellant’s classification as a career offender.6 The panel nevertheless expressed sympathy with Mr. Vargas’s legal claim.7 It also noted a pending circuit split concerning Kisor’s effect on Stinson.8

On appeal, Mr. Vargas attacked the commentary to the Guidelines Manual’s career‑offender provision. He qualified as a career offender, the district court found, “because the instant offense, as well as . . . prior convictions for possession with intent to distribute amphetamine and conspiracy to possess with intent to manufacture and distribute methamphetamine, qualified as controlled substance offenses.”9 The Guidelines Manual, in the substantive text of Section 4B1.2, defines the term “controlled substances offense” to include “an[y] 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.”10 According to Section 4B1.2’s commentary, this definition “also ‘includes the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.’”11 In light of Kisor, Mr. Vargas pitted the substantive text against the commentary. The “plain text” of Section 4B1.2 was unambiguous, he argued, and did not account for inchoate crimes.12 He then pointed to Kisor’s clarification of the standard announced in Stinson and asked the Fifth Circuit to declare Section 4B1.2’s commentary unworthy of deference.13

To prevail, Mr. Vargas needed to overcome both Stinson and the Fifth Circuit’s 1997 opinion in United States v. Lightbourn. The latter opinion addressed the Sentencing Commission’s statutory authority to de‑ fine drug conspiracies as career‑offender predicates.14 The Fifth Circuit determined that the Commission had appropriately “draw[n] its authority from the general guideline promulgation powers” granted to it by Congress.15 Lightbourn, Judge Wilson noted, “did not cite Stinson or otherwise expressly defer to the Guidelines commentary,” but since Section 4B1.2’s commentary provided “the sole source of authority for including in‑ choate offenses” within the relevant definition, “its hold‑ ing implied deference” to the commentary.16 A published opinion later adopted that implicit holding and thereby “rendered any implication of deference in Lighbourn explicit.”17 Lightbourn and its progeny thus foreclosed Mr. Vargas’s claim. To escape the effect of that authority, he needed to establish “an intervening change in law.”18

Kisor, Mr. Vargas argued, provided just that. There, the Supreme Court addressed the level of deference described in Stinson and explained that it “does not ap‑ ply ‘unless the regulation is genuinely ambiguous.’”19 “[B] efore concluding that a rule is genuinely ambiguous, a court must exhaust all the traditional tools of construction.”20 These include the “careful consideration of ‘the text, structure, history, and purpose of a regulation.’”21 Such analysis “will resolve many seeming ambiguities out of the box,” but if “genuine ambiguity remains,” a court may defer to an agency’s interpretation of its own regulations if that interpretation is “reasonable” in light of the regulation’s text.22

Stinson allowed for greater deference and without regard to ambiguity. There, the Supreme Court “considered whether and when the Sentencing Commission’s commentary to the Guidelines should be given binding interpretive effect” and treated Guidelines commentary as “akin to an agency’s interpretation of its own legislative rules.”23 At the time, that meant Guidelines commentary was “authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that Guideline.”24 In Kisor, the Supreme Court rejected this approach as a “caricature” of the appropriate analysis.25

Did Kisor overrule Stinson? Mr. Vargas argued yes, and that development, he claimed, would render Lighbourn’s implicit deference to Section 4B1.2’s commentary improper in light of its unambiguous “plain text.”26 That text—the “controlled substances offense” definition found in Section 4B1.2(b)—did not account for inchoate crimes.27 Given its clarity, Mr. Vargas maintained, the commentary expanding the definition to include conspiracies was no longer “entitled to deference.”28 The panel expressed sympathy with Mr. Vargas’s argument but ultimately determined that Kisor was too vague to overrule Stinson. “If we were writing on a blank slate,” Judge Wilson noted, “we might well agree with Vargas,”29 but to escape Lightbourn, he needed to show that Kisor “unequivocally overrule[d]” the precedent blocking his claim on appeal.30 This, the panel concluded, he could not do, as “Kisor did not discuss the Sentencing Guidelines or Stinson.”31 Although Kisor provided a hint as to how the Supreme Court might rule in the future, “a mere ‘hint’ . . . is not enough to circumvent” the Fifth Circuit’s “rule of orderliness.”32

Other jurists disagree. Sitting en banc, the Third Circuit Court of Appeals considered the same argument advanced by Mr. Vargas and sided with the defendant.33 It found that Kisor had “cut back on what had been understood to be uncritical and broad deference to agency interpretations of regulations” and then applied Kisor’s analysis to Section 4B1.2’s text and commentary.34 The Third Circuit determined that Section 4B1.2(b)’s substantive text unambiguously excluded inchoate crimes and rejected the commentary as unworthy of deference.35 The defendant, who had been classified as a career of‑ fender based in part on a prior “conviction for an attempt to possess with intent to distribute cocaine” was therefore “entitled to be resentenced without being classified as a career offender.”36

The Fifth Circuit may follow the Third Circuit’s lead and rehear the case en banc. Judge Wilson wrote the opinion in Vargas, and Judges Jerry Smith and Gregg Costa signed on to his expression of sympathy concerning Mr. Vargas’s legal claim. A prior unpublished opinion drafted by Judge Edith Jones and joined by Judges Jennifer Walker Elrod and Smith expressed the same sentiment.37 On top of that, Judge Wilson used a footnote in Vargas to acknowledge the existing circuit split.38 Mr. Vargas has since filed a petition for en banc rehearing.39 In the petition, he asked the Fifth Circuit to reconsider the panel’s opinion, and for support, pointed to circuit splits concerning both Kisor’s general effect on Stinson and the specific deference owed to the career‑offender commentary.40 The pending petition may well provide Judge Wilson and his sympathetic colleagues the opportunity to reconsider Kisor’s effect while “writing on a blank slate.”41