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Date: 11-11-2021

Case Style:

United States of America v. Malik Nasir

Case Number: 18-2888

Judge: Kent Amos Jordan

Court: UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
On appeal from The United States District Court for the District of Delaware

Plaintiff's Attorney: Whitney C. Cloud [ARGUED]
Robert F. Kravetz [ARGUED]
Daniel E. Logan, Jr.
Office of United States Attorney

Defendant's Attorney:


Philadelphia, PA - Criminal defense Lawyer Directory


Description:

Philadelphia, PA - Criminal defense lawyer represented defendant with
possession of marijuana with intent to distribute and felon in possession of a firearm charges.



On December 21, 2015, the owner of a storage facility
in Dover, Delaware reported to the police suspicious activity at
one of the storage units, number C69. The owner asked the
police to visit the storage facility to discuss what he believed
to be “drug occurrences” on his property. (App. at 90.) When
the police arrived, he told them that, over the past several
months, someone had visited that unit frequently, as often as
five times a day. Each time, the man – whom he identified as
Nasir – would enter the storage unit and close the door behind
him. Shortly thereafter, he would reemerge and leave the
facility. Concerned about illegal activity, the owner had taken
a photograph of the inside of the unit, which he showed the
officers. It revealed two large coolers, two closed buckets, a
box of baggies, a large bag, and an aerosol spray can. The
owner provided a copy of a rental agreement signed by Nasir
and a photocopy of Nasir’s driver’s license. The rental
agreement listed Nasir’s storage unit as C43, not C69, but the
police apparently did not notice that discrepancy.2

No. 20-1522, 2021 WL 4507560 (U.S. Oct. 4, 2021). This is
our decision on remand. The sentencing-enhancement ruling
reflects the decision of the Court en banc. The remaining
issues are the decision of the original panel, consisting of
Judges Jordan, Scirica, and Rendell.
2
Nasir had initially agreed to rent unit C43, but soon
after transferred to unit C69.
6
Following up on the information provided by the
facility owner, the police ran a criminal history check on Nasir
and learned that he had a criminal record that included felony
drug convictions. They visited unit C69 with a drug detection
dog, and the dog positively alerted to the presence of drugs
there. Based on the accumulated evidence, the detectives
applied for a search warrant for that unit.
While awaiting the warrant, several police officers
remained at the storage unit, and one surveilled Nasir’s home.
The officer at the home saw Nasir place a large black bag in
the back of a Mercury Mariner SUV and drive in the direction
of the storage facility. Nasir in fact went to the facility, and,
when he arrived, the officers stopped him as he entered the row
of units including numbers C69 and C43. After handcuffing
him and putting him in the back of a patrol car, they searched
his SUV, where they found a black duffle bag and a key to unit
C69.
That same night, a search warrant issued and was
executed. In unit C69, the police found more than three
kilograms of marijuana, as well as scales and packaging
materials. The next day, they applied for and received a search
warrant for Nasir’s home and any vehicles on the property.
While executing the warrant, the officers found $5,000 in cash
in a grocery bag in the house and several handguns with
ammunition in a Dodge Charger parked on the property.
Nasir was indicted for violating 21 U.S.C. § 856(a)(1),
part of what is commonly known as the crack house statute
(Count One), and was also charged under
21 U.S.C. §§ 841(a)(1) and (b)(1)(D) for possession of
marijuana with intent to distribute (Count Two), and under 18
7
U.S.C. §§ 922(g)(1) and 924(a)(2) as a felon in possession of a
firearm (Count Three). He moved to suppress the evidence
obtained from the searches of the storage unit, his house, and
his vehicles. The District Court held hearings on that motion
and denied it. Later, at trial, the jury convicted him on all three
counts of the indictment.
After the trial, Nasir filed a motion to set aside the
verdict and a motion for a new trial, both of which were denied.
The District Court sentenced him to 210 months of
imprisonment and three years of supervised release, having
determined that he qualified as a career offender under the
guidelines because of two earlier convictions in Virginia, one
from the year 2000 for attempting to possess cocaine with
intent to distribute and one from 2001 for possession of cocaine
and marijuana. This appeal followed.
II. DISCUSSION3

This appeal now presents four issues.4
First, Nasir says
that there was insufficient evidence to sustain his conviction
3
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742.
4
As noted earlier, supra n.1, Nasir had also argued that,
under Rehaif, 139 S. Ct. at 2194, to sustain a conviction under
18 U.S.C. § 922(g), the government had to prove he knew he
was a felon, that it had failed to do so, and that it was plain
error for him to be convicted in the absence of such proof. That
line of argument was struck down by the Supreme Court in
Greer, 141 S. Ct. at 2096, and requires no further discussion.
8
under the crack house statute because the section of the statute
under which he was convicted does not make it unlawful to
store drugs. Second, he argues that the officer who searched
the Mercury Mariner did not have probable cause to justify that
search, so the evidence found there should have been
suppressed. Third, he contends that a member of his jury was
avowedly partial, so seating her deprived him of a fair trial.
Fourth, he asserts that the career-offender enhancement under
the guidelines should not have factored into his sentencing
because one of his prior felony convictions does not qualify as
a “controlled substance offense,” as that term is defined in the
guidelines.

We will affirm the District Court’s denial of Nasir’s motion for
acquittal as to Counts 1 and 2 and accordingly affirm those
convictions. In doing so, we reject Nasir’s first three
arguments. However, we agree that he does not qualify for the
career-offender enhancement and must be resentenced.
A. The Crack House Conviction
Nasir first challenges his conviction under the crack
house statute, specifically 21 U.S.C. § 856(a)(1), which makes
The judgment order we enter today accordingly reflects that all
of Nasir’s convictions, including his conviction under
§ 922(g), are affirmed. Because the Supreme Court vacated
our earlier judgment in its entirety, however, we reiterate our
analysis of the four issues that were not implicated by Greer,
and our judgment order will also reflect the conclusions we
repeat here.
9
it unlawful to “knowingly … lease, rent, use, or maintain any
place … for the purpose of manufacturing, distributing, or
using any controlled substance.” Despite the breadth of that
language, Nasir argues that his conviction should be reversed
because, he says, that subsection was not meant to cover
storage.5
Nasir did not preserve that argument in the District
Court, so we review the denial of his motion for judgment of
acquittal for plain error.6
United States v. Olano, 507 U.S. 725,
731 (1993). We will reverse for plain error only if there was
an actual error that is plain, that affects “the outcome of the
district court proceedings,” and that “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.”
Id. at 734-36 (citations and internal quotation marks omitted)
(alteration in original).
5
Nasir does not argue that 21 U.S.C. § 856(a)(1) does
not cover storage units; instead, he says that it does not cover
the activity of storing. The distinction he attempts to draw is
irrelevant here because, as we will explain, there was ample
evidence to support the finding that Nasir was not merely
storing drugs, he was distributing drugs from a rented place.
6
Nasir claims he preserved his position when he raised
a sufficiency-of-the-evidence challenge. At trial, Nasir’s
attorney said, “[s]uccinctly, it’s our position that the
government has not proved Mr. Nasir in possession of either
the firearms or the marijuana.” (App. at 549.) But counsel’s
generic statement, which made no reference to 21 U.S.C.
§ 856, was not sufficient to preserve a claim of error on this
issue.
10
Nasir’s argument rests on the contrast between
subsection (a)(1) of the crack house statute, which he was
convicted of violating, and subsection (a)(2), under which he
was not charged. That latter subsection declares it unlawful to
“manage or control any place, whether permanently or
temporarily, … and knowingly and intentionally rent, lease,
profit from, or make available for use, with or without
compensation, the place for the purpose of unlawfully
manufacturing, storing, distributing, or using a controlled
substance.” 21 U.S.C. § 856(a)(2) (emphasis added).
According to Nasir, because “storing” is listed as a
prohibited activity in subsection (a)(2) but is not mentioned in
subsection (a)(1), it was intentionally excluded from (a)(1). By
his lights, since he was storing illegal drugs, he should be safe
from conviction under (a)(1). But even if we were inclined to
accept that subsection (a)(1) does not cover storage, that does
not help Nasir. No sensible reading of the statute allows one
to distribute drugs just because one is also storing them.
Within unit C69, besides the drugs themselves, there was drug
distribution paraphernalia, namely scales and packaging
materials such as food storage bags. In addition to that
evidence, there was the testimony of the facility owner about
Nasir’s frequent and suspicious trips to the unit. Subsection
(a)(1) expressly prohibits “distributing” a controlled substance
from any rented place, and the jury was presented with more
than ample evidence that Nasir was doing just that. The
District Court properly instructed the jury that it could find
Nasir guilty of violating section 856(a)(1) if he used a “place
for the purpose of manufacturing, distributing, or using any
controlled substance.” (App. at 615 (emphasis added).) There
was thus an obvious and legitimate basis for his conviction
under the crack house statute, and the District Court’s denial of
11
Nasir’s motion for a judgment of acquittal was not error at all,
let alone plain error.
B. The Motion to Suppress Evidence from the
SUV
Nasir also appeals the denial of his motion to suppress
the evidence retrieved in the search of his Mercury Mariner
SUV. He repeats the argument he made in the District Court,
saying that the officer who searched the SUV lacked probable
cause. We review de novo whether there was probable cause
to justify police action. United States v. Vasquez-Algarin, 821
F.3d 467, 471 (3d Cir. 2016).
The legal theories offered in opposition to and support
of the SUV search have morphed over time. They began with
Nasir objecting to the search as the proverbial fruit of the
poisonous tree. He said the “[p]olice did not have cause to
arrest [him] at the time he arrived at the storage facility parking
lot and accordingly all statements made by him and any
evidence found subsequent to his arrest should be suppressed.”
(App. at 47.) In responding to that motion, the government
said that the search of the SUV “was a lawful search incident
to a valid arrest pursuant to Arizona v. Gant, 556 U.S. 332
(2009).” (App. at 60 n.21.) The government also stated that,
at the suppression hearing, it “would present evidence that the
search … was a valid inventory search[,]” although apparently
it did not do so. (App. at 60 n.21.) In his post-hearing rebuttal
briefing before the District Court, Nasir argued that the search
of the SUV was unlawful as a search incident to arrest and as
an inventory search. The District Court ultimately classified
the search as being incident to Nasir’s arrest but noted that,
even if the search had occurred prior to the arrest, “the search
12
of the vehicle appears to have been within the scope of the
automobile exception” to the warrant requirement of the
Fourth Amendment. (App. at 21 n.4 (citations omitted).)
On appeal, Nasir simply asserts, without specifying the
legal framework for analysis, that there was no probable cause
to search the SUV.7
We conclude that the District Court
correctly approached the issue as being a search incident to
arrest. Even when, like Nasir, an arrestee is detained and not
within reach of his vehicle, the police may conduct “a search
incident to a lawful arrest when it is reasonable to believe
evidence relevant to the crime of arrest might be found in the
vehicle.” Gant, 556 U.S. at 343 (citation and internal quotation
marks omitted). Whether viewed as a question of probable
cause to arrest Nasir or probable cause to search the SUV under
the automobile exception, however, the pertinent facts and the
outcome are the same.
In challenging the search of the SUV, Nasir says that
the evidence uncovered in that vehicle – a black duffle bag and
the key to unit C69 – should have been suppressed because the
investigating officers did not corroborate the tip from the
storage facility owner. Nasir characterizes the owner as an
unknown and unreliable informant, and he lays particular
emphasis on the incorrect unit number on the rental agreement
the owner provided to the police. Nasir also argues that the
7
Although Nasir pointed out in his briefing that the
arresting officer said he “[b]asically … looked at [the search]
as an inventory search,” (App. at 138,) that does not appear to
have been the theory that the government pursued before the
District Court or now pursues on appeal.
13
District Court impermissibly attributed information known
only to officers not present at the search to the officer who
actually conducted the search. His arguments are
unpersuasive.
When the police receive information from an informant
for the first time, they have a duty to independently corroborate
at least some of the information the informant provides. See
Illinois v. Gates, 462 U.S. 213, 242 (1983) (“[A]n officer may
rely upon information received through an informant, rather
than upon his direct observations, so long as the informant’s
statement is reasonably corroborated by other matters within
the officer’s knowledge.” (citation and internal quotation
marks omitted)). They discharged that duty in this case. The
arresting officers personally knew the following at the time of
the arrest and related search of the vehicle: according to a
background check, Nasir had a history of drug dealing; the
owner of the storage facility had reported Nasir engaged in
suspicious activity at unit C69, including making numerous
trips to the storage unit, sometimes several in a day; the owner
had taken a photograph that showed items in the unit consistent
with drug distribution; an officer had seen Nasir put a bag in
the back of his car and drive toward the storage facility; and a
narcotics dog had positively alerted to drugs at unit C69.
Given the totality of those circumstances known to the
officers who arrested Nasir, there was certainly probable cause,
reasonably corroborated, for Nasir’s arrest, and it was
reasonable to believe that evidence of his drug dealing would
14
be found in the SUV.8
We will therefore affirm the District
Court’s denial of Nasir’s motion to suppress.
C. The Ruling on Alleged Juror Bias
Nasir next claims that he was deprived of a fair and
impartial jury because one of the jurors at his trial, Juror 27,
did not unequivocally affirm that she would be impartial. Our
review of a ruling on a motion to strike a juror for cause is for
manifest error – a most deferential standard. Skilling v. United
States, 561 U.S. 358, 396 (2010). The Supreme Court has
emphasized that jury selection is “particularly within the
province of the trial judge” and cautioned against “secondguessing the trial judge’s estimation of a juror’s impartiality[.]”
Id. at 386 (citation and internal quotation marks omitted).
During voir dire, one of the questions the District Court
asked to determine juror partiality was, “Would you give more
or less weight to the testimony of a law enforcement agent or
police officer than you would give to that of a civilian witness,
8
We note, as did the District Court, that even if the
search had been performed prior to Nasir’s arrest, “the search
of the vehicle appears to have been within the scope of the
automobile exception.” (App. at 21 n.4 (citations omitted).) It
is well established that under the automobile exception to the
warrant requirement, the police may search a vehicle if they
have probable cause to believe that the vehicle contains
evidence of criminal activity. Carroll v. United States, 267
U.S. 132, 155-56 (1925). Here, the same facts that gave rise to
probable cause for an arrest can rightly be seen as
independently giving rise to probable cause for a search of the
vehicle.
15
simply because he or she is employed as a law enforcement
agent or police officer?” (App. at 237-38.) Because Juror 27
answered “yes” to that question, the following colloquy
ensued:
A JUROR: […] But the other thing that I kind
of answered “yes” to was police officer and a
person on the street. I would like to think I would
be partial (sic), but I don’t know.
THE COURT: You would like to think you
would be impartial and fair to both sides?
A JUROR: Yes, impartial that is what I would
like to say.
THE COURT: What is your concern you
wouldn’t be?
A JUROR: Well, my daughter dates a state
police officer. And I really have a lot of respect
for them, you know, and I feel that for the most
part they all do a good job, and they try to be fair.
I think I might tend to believe what they say. I
don’t know.
THE COURT: Do you think if I instruct you that
you have to be fair and impartial and assess
everybody’s credibility as best as you can that
you would be able to do that?
A JUROR: I would think I would. I would hope
I would.
(App. at 305.) Then, outside the juror’s presence the
Court and counsel had this further conversation:
16
[NASIR’S ATTORNEY]: Your Honor, I move
to strike on the basis that she -- her daughter is
dating a state police officer and she would tend
to believe the officer and police testimony.
THE COURT: What is the government’s
position?
[GOVERNMENT’S ATTORNEY]: Your
Honor, I don’t have a real strong one. That she
would answer any questions that she was
instructed [sic]. She could stay impartial. She
confronted all those issues. I certainly
understand why [Defense counsel] is objecting.
THE COURT: Any response?
[NASIR’S ATTORNEY]: No response, Your
Honor.
THE COURT: I’m going to deny the motion. I
felt sufficient confidence that she would work as
hard as anyone could to be fair and impartial, and
I think she would follow the instructions. So I’m
denying the motion to strike.
(App. at 306-07). Nasir argues that the statements “I would
think I would” and “I would hope I would” are not sufficiently
strong affirmations of impartiality.
Because the juror admitted to her concern about
partiality, the District Court quite rightly asked follow-up
questions to determine whether she was actually biased. Cf.
United States v. Mitchell, 690 F.3d 137, 142 (3d Cir. 2012)
(holding that actual bias is “the existence of a state of mind that
leads to an inference that the person will not act with entire
17
impartiality[,]” unlike implied bias, which is “presumed as [a]
matter of law” (citations and internal quotation marks
omitted)). Here, Juror 27’s acknowledgement that she “ha[s]
a lot of respect for” police officers and “might tend to believe
what they say” prompted the District Court to emphasize her
obligation to be fair and impartial and to weigh the evidence
equally. (App. at 305.) She responded with assurances that
she would follow the Court’s instructions. Her declaration that
she “would think” and “would hope” (App. at 305) that she
could be impartial – combined, it seems, with the way in which
she said it – allowed the District Court, observing her behavior
and mannerisms first hand, to have “sufficient confidence that
she would work as hard as anyone could to be fair and
impartial.” (App. at 306-07.) That decision, on this record, is
not manifestly erroneous.
D. The Career Offender Enhancement
Finally, Nasir challenges the enhancement he received
at sentencing pursuant to the “career offender” provision of the
sentencing guidelines. He argues that he should not have
received the enhancement because one of his two prior
qualifying convictions was an inchoate drug offense, which
does not qualify as a predicate offense under the plain language
of the guidelines. The interpretation of the guidelines is a legal
question, so we exercise plenary review. United States v.
Wilson, 880 F.3d 80, 83 (3d Cir. 2018). We agree with Nasir
that the plain language of the guidelines does not include
inchoate crimes, so he must be resentenced.
18
1. The Definition of “Controlled Substance
Offenses” in the Guidelines
Under section 4B1.1 of the sentencing guidelines, an
adult defendant is a career offender if “the instant offense of
conviction is a felony that is either a crime of violence or a
controlled substance offense; and … the defendant has at least
two prior felony convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 4B1.1(a). If a
defendant is a career offender, that designation increases the
offense level of the crime for which he is to be sentenced and
mandates a criminal history ranking of Category VI.
U.S.S.G. § 4B1.1(b).
The District Court determined that one of Nasir’s three
convictions in this case is a controlled substance offense,
namely his conviction on Count Two for possession of
marijuana with intent to distribute. After evaluating Nasir’s
criminal history, the Court concluded that two of his prior
convictions in Virginia state court also qualify as predicate
controlled substance offenses: a 2000 conviction for an attempt
to possess with intent to distribute cocaine and a 2001
conviction for possession of marijuana and cocaine with intent
to distribute.9
Nasir was accordingly sentenced as a career
offender.
He argues that his conviction in 2000 for attempting to
possess with intent to distribute cocaine should not qualify as
9
Nasir has other prior convictions, but the government
and Nasir appear to agree than none of them qualify as
predicate offenses.
19
a “controlled substance offense” under section 4B1.1 because
the guidelines’ definition of a “controlled substance offense”
does not include inchoate crimes.10 In particular, Nasir points
out that section 4B1.2 of the sentencing guidelines defines the
term “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.
U.S.S.G. § 4B1.2(b). Nasir notes this definition plainly does
not mention inchoate crimes, and consequently asserts that his
inchoate “attempt” crime should not qualify as a predicate
offense for the career offender enhancement. The analytical
problem is more complicated than that, however, because the
commentary to section 4B1.2 appears to expand the definition
of “‘controlled substance offense’ [to] include the offenses of
aiding and abetting, conspiring, and attempting to commit such
offenses.” U.S.S.G. § 4B1.2 cmt. n.1. That section of the
10 An inchoate offense is “[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). Inchoate offenses include, for
example, the attempt, conspiracy, or solicitation to commit a
crime. Id.
20
commentary, and, importantly, our precedent on the
application of the commentary to the interpretation of the
guidelines, informed the District Court’s decision to apply the
career offender enhancement. The question, then, is whether
the more expansive commentary should be given controlling
weight in interpreting the narrower guideline at issue here.11
2. The Effect of the Commentary on our
Interpretation of the Guidelines
The extent to which the guidelines’ commentary
controls our interpretation of the guidelines themselves is
informed by principles of administrative law. In Stinson v.
United States, 508 U.S. 36 (1993), the Supreme Court
considered how to classify the commentary to the sentencing
guidelines and whether and when it should be given binding
interpretive effect. Because the guidelines are written by the
Sentencing Commission, a body that straddles both the
legislative and judicial branches of the government, the Court
11 The Sentencing Commission has proposed an
amendment to the guidelines to explicitly include inchoate
offenses in section 4B1.2(b). Notice of Proposed Amendments,
83 Fed. Reg. 65400-01, 65412-15 (Dec. 20, 2018). The
proposed change has been submitted for notice and comment,
and the time for notice and comment has closed. Id. However,
the Commission does not currently have a quorum (and has not
had one since at least 2018), so it cannot act on that issue. U.S.
Sentencing Commission, 2018 Annual Report 2-3, available at
https://www.ussc.gov/sites/default/files/pdf/research-andpublications/annual-reports-and-sourcebooks/2018/2018-
Annual-Report.pdf.
21
determined that the commentary to the guidelines is more akin
to an agency regulation than a statute. Id. at 44. Consequently,
the Court determined that the commentary should “be treated
as an agency’s interpretation of its own legislative rule.” Id.
Relying on its opinion in Bowles v. Seminole Rock & Sand Co.,
the Court said that such determinations should be given
deference unless they are “plainly erroneous or inconsistent
with the regulation.” Id. at 45 (quoting Bowles v. Seminole
Rock & Sand Co., 325 U.S. 410, 414 (1945)). Further, the
Court instructed that, “if the guideline which the commentary
interprets will bear the construction,” the commentary can
expand the guidelines, particularly when the commentary is
“interpretive and explanatory.” Id. at 46-47. Accordingly, socalled Seminole Rock deference, also sometimes called Auer
deference,12 governs the effect to be given to the guidelines’
commentary.
Our precedent has followed that course. In United
States v. Hightower, 25 F.3d 182 (3d Cir. 1994), we applied the
12 In 1945, the Supreme Court upheld a regulation from
the Office of Price Administration in Bowles v. Seminole Rock,
after it determined that the language of the regulation was
consistent with Administration’s interpretation of the
regulation. Seminole Rock, 325 U.S. at 417. Seminole Rock
thus became shorthand for the doctrine of deference to an
administrative agency’s interpretation of its own regulations.
More than fifty years later, in Auer v. Robbins, 519 U.S. 452
(1997), the Court reinforced that doctrine. The doctrine is thus
sometimes referred to as Seminole Rock deference, after the
case that introduced it, and at other times referred to as Auer
deference, the more recent reiteration of the doctrine.
22
principles set forth in Stinson to determine whether inchoate
crimes are covered by sections 4B1.1 and 4B1.2 of the
sentencing guidelines. We asked “whether the Sentencing
Commission exceeded its statutory authority by expanding the
definition of a controlled substance offense” when it included
inchoate offenses as part of the definition of the term
“controlled substance offense” in the commentary to section
4B1.2. Hightower, 25 F.3d at 184 (internal quotation marks
omitted). We determined that the commentary to 4B1.2 was
explanatory and therefore binding. Id. at 185-87. Specifically,
although we admitted that the inclusion of inchoate crimes was
an “expansion of the definition of a controlled substance
offense[,]” we said that the expansion was “not ‘inconsistent
with, or a plainly erroneous reading of,’ § 4B1.2(2) of the
[s]entencing [g]uidelines, and that it does not ‘violate[ ] the
Constitution or a federal statute.’” Id. at 187 (second two
alterations in original) (quoting Stinson, 508 U.S. at 38). We
later followed that precedent in United States v. Glass, 904
F.3d 319 (3d Cir. 2018), in which we held that a conviction
under a Pennsylvania “attempt” statute qualified as a predicate
controlled substance offense for the career offender
enhancement under the guidelines.
Our interpretation of the commentary at issue in
Hightower – the same commentary before us now – was
informed by the then-prevailing understanding of the deference
that should be given to agency interpretations of their own
regulations. Thus, although we recognized that the
commentary expanded and did not merely interpret the
definition of “controlled substance offense,” we nevertheless
gave it binding effect. In doing so, we may have gone too far
in affording deference to the guidelines’ commentary under the
standard set forth in Stinson. Indeed, after the Supreme
23
Court’s recent decision in Kisor v. Wilkie, 139 S. Ct. 2400
(2019), it is clear that such an interpretation is not warranted.
In Kisor, the Court cut back on what had been
understood to be uncritical and broad deference to agency
interpretations of regulations and explained that Auer, or
Seminole Rock, deference should only be applied when a
regulation is genuinely ambiguous. Id. at 2414-15. Kisor
instructs that “a court must carefully consider the text,
structure, history, and purpose of a regulation, in all the ways
it would if it had no agency to fall back on. Doing so will
resolve many seeming ambiguities out of the box, without
resort to Auer deference.” Id. at 2415 (citation, brackets, and
quotation marks omitted). Thus, before deciding that a
regulation is “genuinely ambiguous, a court must exhaust all
the traditional tools of construction.” Id. (citation and
quotation marks omitted).
Even when a regulation is ambiguous, there are limits
to deference. The agency’s reading must be “reasonable[,]” as
informed by “[t]he text, structure, history, and so forth[,]”
which “establish the outer bounds of permissible
interpretation.” Id. at 2415-16. A court “must make an
independent inquiry into whether the character and context of
the agency interpretation entitles it to controlling weight[,]”
including whether it is the agency’s “official position[.]” Id. at
2416. Moreover, an agency’s interpretation must “in some
way implicate its substantive expertise” if it is to be given
controlling weight, since “[s]ome interpretive issues may fall
more naturally into a judge’s bailiwick.” Id. at 2417. Finally,
the reading must “reflect fair and considered judgment” and
not simply be a “convenient litigating position.” Id. (citations
and quotation marks omitted). In short, the degree of deference
24
to be given an agency’s interpretation of its own regulations is
now context dependent.
3. The Plain Text of the Guidelines
The definition of “controlled substance offense” in
section 4B1.2(b) of the guidelines is, again, in pertinent part as
follows:
[A]n 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.
U.S.S.G. § 4B1.2(b). The guideline does not even mention
inchoate offenses. That alone indicates it does not include
them. The plain-text reading of section 4B1.2(b) is
strengthened when contrasted with the definition of “crime of
violence” in the previous subsection. That definition in section
4B1.2(a) does explicitly include inchoate crimes, see U.S.S.G.
§ 4B1.2(a) (“The term ‘crime of violence’ means any offense
… that – (1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another[.]” (emphasis added)), which further suggests that the
omission of inchoate crimes from the very next subsection was
intentional.
25
That suggestion is separately bolstered by the fact that
section 4B1.2(b) affirmatively lists many other offenses that do
qualify as controlled substance offenses. As a familiar canon
of construction states, expressio unius est exclusio alterius: the
expression of one thing is the exclusion of the other. Applying
that canon has led at least one court of appeals to conclude that
section 4B1.2(b) does not include inchoate crimes. See United
States v. Winstead, 890 F.3d 1082, 1091 (D.C. Cir. 2018)
(“Section 4B1.2(b) presents a very detailed ‘definition’ of
controlled substance offense that clearly excludes inchoate
offenses.”).
Congress has delegated substantial responsibility to the
Sentencing Commission, but, as the Supreme Court
emphasized in Kisor, the interpretation of regulations
ultimately “remains in the hands of the courts.” 139 S.Ct. at
2420. In light of Kisor’s limitations on deference to
administrative agencies, and after our own careful
consideration of the guidelines and accompanying
commentary, we conclude that inchoate crimes are not
included in the definition of “controlled substance offenses”
given in section 4B1.2(b) of the sentencing guidelines.
Therefore, sitting en banc, we overrule Hightower, and,
accordingly, Nasir is entitled to be resentenced without being
classified as a career offender.

Outcome: In sum, we will affirm Nasir’s convictions, will vacate
his sentence, and will remand for resentencing consistent with
this opinion.

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