Major en banc decision in favor of criminal defendants

The case is United States v. Dupree.  And it's a biggie.

Judge Jill Pryor for the majority explains:

This appeal requires us to consider whether an inchoate of-fense qualifies as a “controlled substance offense” for purposes of the career offender sentencing enhancement under the United States Sentencing Guidelines. U.S. Sent’g Guidelines Manual § 4B1.2(b) (U.S. Sent’g Comm’n 2018). In this case, the district court sentenced Brandon Dupree as a career offender based partly on his conviction for conspiring to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846. Dupree appealed his sentence, arguing that his § 846 conspiracy conviction could not serve as a predicate for his career offender enhancement because the Guidelines’ definition of “controlled substance offense” omitted conspiracy and other inchoate crimes.

A panel of this Court affirmed Dupree’s sentence, concluding that our decisions in United States v. Weir, 51 F.3d 1031 (11th Cir. 1995), and United States v. Smith, 54 F.3d 690 (11th Cir. 1995), foreclosed his argument. United States v. Dupree, 849 F. App’x 911 (11th Cir. 2021) (unpublished), reh’g en banc granted, opinion vacated 25 F.4th 1341 (11th Cir. 2022). We granted Dupree’s petition to rehear the case en banc. After careful consideration, and with the benefit of oral argument, we hold that the definition of “con-trolled substance offense” in § 4B1.2(b) does not include inchoate offenses. We therefore vacate Dupree’s sentence and remand to the district court for resentencing.

It's a fascinating decision because it overrules the last 30 years of 11th Circuit precedent.  More importantly than the issue presented in Dupree, the en banc majority also holds that when Guideline Application Notes or Commentary conflict with the plain language of the Guidelines, the  Notes/Commentary are unenforceable.  It's a good example of when strict constructionists help criminal defendants.

A recent Third Circuit case made the same finding in the context of loss, saying that courts should only use actual loss and not intended loss because of the wording of the actual guideline.  So get ready for similar challenges -- which surely will be successful after Dupree -- here in the 11th.

Almost the entire court join Judge Jill Pryor's opinion.

Judge Luck, who has become the most reliable pro-government vote on the 11th Circuit, dissents (joined by Judge Branch).  He starts off this way:

Section 4B1.2(b) of the sentencing guidelines defines “[t]he term ‘controlled substance offense’” 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 a counterfeit substance) or the possession of a controlled substance (or a counterfeit sub-stance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). The issue in this case is whether conspiring to possess heroin and cocaine with the intent to distrib-ute them is a “controlled substance offense” under guideline sec-tion 4B1.2(b).
For thirty years, the answer was yes. See United States v. Weir, 51 F.3d 1031, 1031 (11th Cir. 1995) (“We hold that a convic-tion of conspiracy to possess with intent to distribute marijuana is a ‘controlled substance offense’ for purposes of career criminal sen-tence enhancement under section 4B1.1 of the United States Sen-tencing Guidelines.”). The guideline commentary provided that “‘controlled substance offense’ include[d] the offenses of aiding and abetting, conspiring, and attempting to” possess controlled sub-stances with the intent to distribute them. U.S.S.G. § 4B1.2(b) n.1. And, under Stinson v. United States, 508 U.S. 36 (1993), we owed deference to the commentary as an authoritative and “‘binding in-terpretation’ of the term ‘controlled substance offense’” because the commentary neither ran “afoul of the Constitution” or “a fed-eral statute,” nor was “it inconsistent with, or a plainly erroneous reading of,” the guidelines. United States v. Smith, 54 F.3d 690, 693 (11th Cir. 1995) (applying Stinson to the commentary in guideline section 4B1.2).
But, today, the majority opinion answers no. Placing our court with the minority of circuit courts, the majority opinion holds that we must ignore the guideline commentary and finds that conspiring to possess heroin and cocaine with the intent to distrib-ute is not a “controlled substance offense.”
The majority opinion reaches this result, and overrules thirty years of precedent, because, it says, Kisor v. Wilkie, 139 S. Ct. 2400 (2019) clarified Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) and Auer v. Robbins, 519 U.S. 452 (1997) and the Kisor clarification applies to Stinson and the guidelines commen-tary. Kisor, the majority opinion explains, clarified that commen-tary is not authoritative, and we do not defer to it, unless the guide-line it interprets is genuinely ambiguous.
I respectfully dissent for two reasons. First, despite what the majority opinion says it is doing, it is not really applying Kisor’s clarification to Stinson. Under the majority opinion’s approach, the Kisor clarification applies to Stinson the same way a magnifying glass applies to an ant on a sunny day—total annihilation. The ma-jority opinion is actually applying Kisor to overrule Stinson. But the Supreme Court didn’t overrule Stinson and we can’t overrule a Supreme Court opinion on our own. Only the Supreme Court can do that. Second, even if the majority opinion isn’t overruling Stinson, the Kisor clarification doesn’t apply to Stinson.