Federal Corner: June 2022


While our lives were being upended by a pandemic, the Supreme Court and Congress have upended discrete aspects of federal sentencing that provide opportunity for forging new law that can help our clients. Other circuits have published decisions on three such issues: deference owed to Guidelines commentary, the criminal history bars in the new safety valve criteria, and whether prior marijuana convictions qualify as “controlled substance offenses.” The Fifth Circuit has not yet fully addressed these issues. Spot them, and potentially save your client significant time in prison.

  1. When the guideline commentary increases the advisory Guidelines range, rethink whether that commentary deserves deference.

The Third, Fourth, Sixth, and D.C. Circuits found that §4B1.2 controlled substance offenses do not include inchoate offenses. United States v. Nasir, 17 F.4th 459, 470 (3d Cir. 2021) (en banc); United States v. Campbell, 22 F.4th 438, 440 (4th Cir. 2022); United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019); United States v. Winstead, 890 F.3d 1082, 1091 (D.C. Cir. 2018).1 They did so based on a recent Supreme Court decision regarding when to give deference to agency decisions: Kisor v. Wilkie, 139 S. Ct. 2400 (2019). This Kisor‑deference argument has the potential to save our clients from higher sentences that result from guideline commentary that is harsher than the guideline text.

What does an agency deference decision have to do with the Guidelines?

The text of the Guidelines comes into effect only after being submitted to Congress for disapproval or modification. See 28 U.S.C. § 994(p). In contrast, the Guidelines commentary is not subject to congressional review.

In 1993, the Supreme Court compared the commentary to “an agency’s interpretation of its own legislative rules.” Stinson v. United States, 508 U.S. 36, 45 (1993).

Unlike Guidelines text, which must be followed, the Supreme Court applied the then‑prevailing agency deference framework of Seminole Rock, also called Auer deference,2 and said that the commentary should be followed unless it is inconsistent with the Guidelines text. Id. at 43. Practically speaking, this meant the Guidelines commentary was almost always applied. So, we defense attorneys gradually were lulled into a routine of applying the commentary without question.

Decades later, in 2019, Kisor “awoke us from our slumber of reflexive deference” to the agency interpretation of regulations. Nasir, 17 F.4th at 472 (Bibas, J., concurring). Kisor “cut[s] back on what had been understood to be uncritical and broad deference to agency interpretations of regulations and explain[s] that Auer, or Seminole Rock, deference should only be applied when a regulation is genuinely ambiguous.” Id. at 470. Rather than reflexive deference, Kisor says “a court must exhaust all the traditional tools of construction” before deciding that a regulation is “genuinely ambiguous[.]” 139 S. Ct. at 2415 (cleaned up). “Doing so will resolve many seeming ambiguities out of the box, without resort to Auer deference.” Id. And even when the regulation is ambiguous, the agency interpretation only warrants deference when it is “reasonable,” “authoritative,” a product of its “substantive expertise,” and a “fair and considered judgment.” Id. at 2416‑18 (cleaned up).

Because Guidelines commentary is treated as an agency’s interpretation of its own legislative rules, several circuits have applied Kisor to the commentary. See Nasir, 17 F.4th at 471‑72. Doing so, they have found, for instance, the §4B1.2(b) text unambiguous, meaning there was no reason to resort to the commentary. Id.

The Fifth Circuit has not squarely addressed how Kisor affects deference to Guidelines commentary. One panel found that it was bound by precedent, United States v. Lightbourn, 115 F.3d 291, 293 (5th Cir. 1997), to follow the §4B1.2 commentary adding conspiracy to the “controlled substance offense” definition. United States v. Goodin, 835 F. App’x 771, 782 (5th Cir. 2021). But the panel indicated that, if given a clean slate, it was inclined to agree with the Third Circuit. Id. at 782 n.1. That amounts to an en banc invitation in the right case.

United States v. Vargas, No. 21‑20140, may be such a case.3 A Fifth Circuit panel heard argument in Vargas in March 2022. Mr. Vargas argued Kisor had abrogated Stinson and that the panel was not bound by Lightbourn. But even if the panel does not agree, the en banc court or the Supreme Court may one day take the issue up and rule that deference is only due to the Guidelines commentary when the Guidelines text is “genuinely ambiguous.” Nasir, 17 F.4th at 471.

A shift to the limited Kisor deference for Guidelines commentary would mean courts would have to work harder to decide whether any given commentary should apply. See, e.g., United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021) (refusing to defer to the §2B1.1 commentary’s definition that “loss” for access device cards means $500 per card). And defense attorneys excel at working hard and using the complexity of issues to our clients’ advantage.

To recap:

  • The old: defer to Guidelines commentary unless inconsistent (Stinson).
  • The break: defer to agency interpretations only if regulation is genuinely ambiguous and interpretation warrants deference (Kisor v. Wilkie).
  • The possible  new: defer to commentary only after exhausting statutory construction tools to determine whether the Guidelines text is ambiguous, and then defer to commentary only if When your client appears to not qualify for safety valve due to too many criminal history points, think again.
  1. We know that having too many criminal history points can disqualify a client from safety valve, and safety valve can be important because it allows a district court to sentence below the mandatory minimum in certain drug cases.4 18 U.S.C. § 3553(f). The question is how many criminal history points is too many.

It used to be more than one criminal history point disqualified a client. 18 U.S.C. § 3553(f)(1) (2018).

Then came the First Step Act of 2018. It changed the criminal history requirements so that a defendant remains eligible if:

the defendant does not have‑‑

  1. more than 4 criminal history points, excluding … 1‑point offense[s]…;
  2. a prior 3‑point offense…;
  3. a prior 2‑point violent offense[.]
    § 3553(f)(1).

In United States v. Lopez, 998 F.3d 431 (9th Cir. 2021), the Ninth Circuit held that the “and” in the new safety‑valve provision means “and.” In other words, a defendant’s criminal history points only make him ineligible for safety valve if he has more than 4 criminal history points excluding 1‑point offenses, a 3‑point offense, and a 2‑point violent offense. If a defendant only has a 3‑point offense and a 2‑point nonviolent offense, he would still be eligible. The Government filed a petition for rehearing en banc in Lopez in August 2021 that is pending.

A panel of the Eleventh Circuit initially ruled the opposite way (finding the “and” is disjunctive) but then vacated that opinion when it granted rehearing en banc. United States v. Garcon, 997 F.3d 1301 (11th Cir. 2021), reh’g en banc granted, opinion vacated, 23 F.4th 1334 (11th Cir. 2022). The Government filed its en banc reply brief in Garcon in May 2022.

The Fifth Circuit heard oral argument on this issue in February 2022 but has not yet issued a decision. United States v. Palomares, No. 21‑40247 (5th Cir.).5 Some district courts in the Western District of Texas have sided with Lopez and imposed sentences below the mandatory minimum sentence. Maybe you can also convince a court that “and” means “and.”

To recap:

  • The old: no safety valve if more than 1 criminal history point.
  • The break: the First Step Act of 2018 amended the safety valve
  • The possible new: only defendants who have more than 4 criminal history points excluding 1‑point offenses, a 3‑point offense, and a 2‑point violent offense are ineligible (Lopez).
  • Or at least: defendants who have more than 4 criminal history points excluding 1‑point offenses, a 3‑point offense, or a 2‑point violent offense are ineligible.
  1. If your client’s pre-2018 marijuana convictions are enhancing the sentence, consider whether those priors included hemp.

In United States v. Bautista, the Ninth Circuit held that a pre‑2018 Arizona marijuana conviction was not a §4B1.2 “controlled substance offense” (CSO). 989 F.3d 698, 703‑ 04 (9th Cir. 2021). As a result, Mr. Bautista’s §2K2.1 sentence of 30 months’ imprisonment was vacated for resentencing under the correct range of 15 to 21 months. Id. at 705. The Ninth Circuit followed these steps to reach the favorable result:

  1. Used substances listed in the federal Controlled Substances Act (CSA) to define “controlled substance” in guideline 4B1.2. United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir. 2012).
  2. Compared the controlled substance definition for the prior conviction to the §4B1.2 controlled substance definition that exists now at sentencing. See 18 U.S.C. § 3553(a)(4)(A) (ii); U.S.S.G. § 1B1.11.

The definition of “marijuana” at the time of the prior Arizona offense included hemp. At the time of sentencing for the new federal offense, the Agricultural Improvement Act of 20186 had removed hemp (cannabis with THC of 0.3% or less) from the “marijuana” definition. Thus, the prior Arizona conviction was broader than the §4B1.2 CSO definition because the former included hemp, and the latter did not.

In a recent unpublished Fifth Circuit decision, Judge Higginson indicated he thought the Bautista analysis was correct and should apply in the Fifth Circuit. United States v. Belducea-Mancinas, No. 20‑50929, 2022 WL 1223800, at *2 (5th Cir. Apr. 26, 2022) (Higginson, J., concurring).7 He thought the district court erred, albeit not plainly, by sentencing Mr. Belducea as a career offender based on pre‑ 2018 marijuana convictions. Id.; see also United States v. Abdulaziz, 998 F.3d 519, 524‑31 (1st Cir. 2021); United States v. Crocco, 15 F.4th 20, 23 n.3 (1st Cir. 2021); United States v. Williams, 850 Fed. App’x 393, 398 (6th Cir. 2021) (unpublished).

Some circuits do not define “controlled substance” in §4B1.2 as a substance in the federal CSA. See Crocco, 15 F.4th at 23 (describing circuit split). But the Fifth Circuit already incorporated the federal CSA in the materially similar drug trafficking offense definition of guideline §2L1.2. United  States v. Gomez-Alvarez, 781 F.3d 787 (5th Cir. 2015) (adopting Leal- Vega). “Because the qualifying prior convictions in § 2L1.2 and § 4B1.2(b) are defined in substantially the same way, cases discussing these definitions are cited interchangeably[.]” United States v. Arayatanon, 980 F.3d 444, 453 n.8 (5th Cir. 2020) (cleaned up). Under the holding and reasoning of Gomez-Alvarez, Judge Higginson finds that the Fifth Circuit defines “controlled substance” in §4B1.2(b) with reference to the CSA. Belducea- Mancinas, 2022 WL 1223800, at *2 (Higginson, J., concurring).

Note: While Bautista and Belducea-Mancinas were in the context of guideline §4B1.2, the argument could apply to other recidivist enhancements or categorizations, such as Armed Career Criminal Act serious drug offenses, and the serious drug felonies that can enhance drug sentences. See, e.g., United States v. Hope, 28 F.4th 487, 504‑05 (4th Cir. 2022) (in the ACCA context).

To recap:

The old: the Controlled Substances Act defined “marijuana” as any part of the cannabis sativa L. plant, regardless of the amount of THC.

The break: the Agriculture Improvement Act of 2018 amended the “marijuana definition” to exclude hemp, which is any part of the cannabis sativa plant containing TCH of 0.3% or less.

The possible new: prior drug convictions for which the least culpable act involved hemp may not be §4B1.2 CSOs or other drug recidivist enhancements.


  1. Other circuits disagree. See United States v. Campbell, 22 F.4th 438, 443 (4th Cir. 2022) (describing circuit split). And a separate Fourth Circuit panel refused to a apply Kisor deference to guideline commentary. United States v. Moses, 23 F.4th 347, 356 (4th Cir. 2022).
  2. Auer v. Robbins, 519 U.S. 452, 461 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945).
  3. Mr. Vargas is represented by AFPD Evan Howze, with the FPD Office for the Southern District of Texas.
  4. There are other disqualifiers, such as (1) using violence or threats or possessing a firearm; (2) offense resulting in death or serious bodily injury; (3) leader or managerial role; or (4) not providing truthful information about the offense. 18 U.S.C. § 3553(f)(2)-(5).
  5. Ms. Palomares is represented by AFPD Scott Martin, with the FPD Office for the Southern District of Texas.
  6. Pub. L. 115-334, § 12619(a), 132 Stat. 4490, 5018; see 21 U.S.C. § 802(16); 7 U.S.C. § 1639o(1).
  7. I represent Mr. Belducea. Judges Southwick and Haynes did not join in Judge Higginson’s concurrence, and the per curiam opinion finds that any error is not clear or obvious. Belducea-Mancinas, 2022 WL 1223800, at *1.
Kristin M. Kimmelman
Kristin M. Kimmelman
Kristin M. Kimmelman is a Supervisory Assistant Federal Public Defender for the Office of the Federal Public Defender of the Western District of Texas. She lives in San Antonio and practices primarily before the Fifth Circuit Court of Appeals. She can be reached at or 210-472-6700.

Kristin M. Kimmelman is a Supervisory Assistant Federal Public Defender for the Office of the Federal Public Defender of the Western District of Texas. She lives in San Antonio and practices primarily before the Fifth Circuit Court of Appeals. She can be reached at or 210-472-6700.

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