United States v. Junior Abreu ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-2786
_____________
UNITED STATES OF AMERICA
v.
JUNIOR ABREU,
Appellant
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-18-cr-00663-001)
District Judge: Hon. Kevin McNulty
_______________
Argued September 29, 2021
Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges.
(Filed: May 2, 2022)
Louise Arkel [ARGUED]
Peter M. Carter
Office of the Federal Public Defender
1002 Broad Street
Newark, NJ 07102
Counsel for Appellant
Mark E. Coyne [ARGUED]
Steven G. Sanders
Office of United States Attorney
970 Broad Street – Room 700
Newark, NJ 07102
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
KRAUSE, Circuit Judge.
Words matter, but so does their placement, and in the
context of the U.S. Sentencing Guidelines, whether they appear
in the text or the commentary can make a significant difference
in a defendant’s term of imprisonment. Here, Appellant Junior
Abreu argues it was error to apply a sentencing enhancement
under U.S.S.G. § 2K2.1 based on a prior conspiracy offense,
and we must decide whether to defer to the commentary to §
2K2.1, which purports to define the term “crime of violence”
to encompass conspiracy crimes, or to adhere to the
Guidelines’ text, which says no such thing. In view of recent
Supreme Court precedent, we are constrained to hold that
conspiracy to commit a crime of violence does not count as a
“crime of violence” for purposes of § 2K2.1. We will therefore
vacate Abreu’s sentence and remand for resentencing.
I. Factual and Procedural Background
In June 2020, Abreu pleaded guilty to possessing a
firearm as a convicted felon in violation of 18 U.S.C.
§ 922(g)(1). In anticipation of his sentencing, the United
States Probation Office prepared a Presentence Report (PSR),
calculating his Guidelines range by using the enhancement that
applies if a defendant “committed any part of the instant
offense” after a felony conviction for either a “crime of
violence” or a “controlled substance offense.” U.S.S.G.
§ 2K2.1(a)(4). In Abreu’s case, the enhancement was
predicated on a purported “crime of violence”: his prior
conviction for conspiracy to commit second-degree aggravated
assault under New Jersey law, resulting in an offense level of
22 and an advisory Guidelines range of 51–63 months’
imprisonment.
The Government urged the Court to follow the PSR,
arguing that conspiracy to commit a crime of violence qualified
as a “crime of violence” under § 2K2.1 no less than the
substantive offense. It based that argument on U.S.S.G.
§ 4B1.1, the so-called “Career-Offender Guideline,” and the
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definitions to which it refers in U.S.S.G. § 4B1.2. Under those
definitions, “crime of violence” means one of the enumerated
offenses in § 4B1.2(a)(2), or an offense that “has as an element
the use, attempted use, or threatened use of physical force
against the person of another,” as specified in § 4B1.2(a)(1).
The commentary to that guideline, however, states that “[f]or
purposes of this guideline,” the term also encompasses
“conspiring . . . to commit [a crime of violence].” U.S.S.G.
§ 4B1.2 & cmt. 1. Because the commentary to § 2K2.1 states
that “‘[c]rime of violence’ has the meaning given that term in
§ 4B1.2(a) and Application Note 1 of the Commentary to
§ 4B1.2,” U.S.S.G. § 2K2.1 cmt. 1, the Government contended
that “crime of violence,” for purposes of § 2K2.1(a)(4), must
likewise include conspiracy offenses.
Abreu objected on the ground that conspiracy to commit
a crime of violence requires only an agreement to commit an
offense that “has as an element the use, attempted use, or
threatened use of physical force against the person of another,”
U.S.S.G. § 4B1.2(a)(1), and does not itself include that
element. Thus, he argued, citing to Stinson v. United States,
508 U.S. 36, 43–45 (1993), that the District Court must
disregard the commentary because it is inconsistent with the
Guidelines’ text, and that, as a result, his conspiracy offense
did not qualify him for the enhancement under § 2K2.1(a)(4).
Accordingly, he argued, he should be sentenced using an
offense level of only 16 and an advisory Guidelines range of
27–33 months instead of 51–63 months.
The District Court sided with the Government. It
reasoned that under United States v. Hightower, 25 F.3d 182,
187 (3d Cir. 1994), inchoate crimes like conspiracy counted
under the “controlled substance offense” prong of § 4B1.2, so
they must also count under its “crime of violence” prong, and
that because § 2K2.1’s commentary defined “crime of
violence” by reference to § 4B1.2, the same must be true of
§ 2K2.1. Thus, concluding it was bound by Hightower, the
District Court adopted the calculations of the PSR, applied the
§ 2K2.1(a)(4) enhancement, and sentenced Abreu to 56
months’ imprisonment and three years’ supervised release.
Several months later, however, we revisited Hightower
in light of an intervening Supreme Court case, Kisor v. Wilkie,
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139 S. Ct. 2400 (2019). Kisor “reinforce[d] the limits” of the
deference we may afford to agencies’ interpretations of their
regulations by reminding us that “the possibility of deference
can arise only if a regulation is genuinely ambiguous.” Id. at
2414, 2423. Based on the Court’s instruction there to “exhaust
all the traditional tools of construction” before concluding that
a rule is “genuinely ambiguous,” id. at 2415 (internal
quotations omitted), we took a second look at § 4B1.2 and
concluded that the text of the “controlled substance offense”
prong unambiguously excluded inchoate crimes, United States
v. Nasir, 982 F.3d 144, 160 (3d Cir. 2020) (en banc), vacated
and remanded, 142 S. Ct. 56 (2021), aff’d in relevant part, 17
F.4th 459, 468 (3d Cir. 2021) (en banc). We thus declined to
defer to the commentary, overruled Hightower, and vacated the
defendant’s sentence under the Career-Offender Guideline,
holding that inchoate crimes do not qualify as “controlled
substance offenses” under § 4B1.2. Id.
Now, on appeal, Abreu argues that, applying the
reasoning that led us to overrule Hightower in Nasir,
conspiracy crimes likewise cannot qualify as “crimes of
violence” under § 4B1.2, and because the District Court
predicated its interpretation of § 2K2.1 on an erroneous
understanding of § 4B1.2, he must be resentenced without the
§ 2K2.1(a)(4) enhancement.
II. Discussion1
“Whether an offense qualifies as a crime of violence
under the Sentencing Guidelines is a legal question that this
Court typically reviews de novo.” United States v. Scott, 14
F.4th 190, 194 (3d Cir. 2021). In this case, however, the
Government urges us to review only for plain error on the
ground that Abreu failed to preserve his argument in the
District Court. See Davis v. United States, 140 S. Ct. 1060,
1061 (2020); Scott, 14 F.4th at 194; Fed. R. Crim. P. 52(b). We
therefore address the proper standard of review before
1
The District Court exercised jurisdiction under 18
U.S.C. § 3231, and we have jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a).
4
considering whether the term “crime of violence” as used in
§ 2K2.1 includes conspiracy crimes.
A. The Proper Standard of Review
The first question we address is whether Abreu’s
arguments in the District Court were sufficiently particularized
to preserve his challenge to Hightower. We clarified the
degree of particularity required in United States v. Joseph,
where we explained that “a party must make the same
argument in the District Court that he makes on appeal” in
order to preserve it.2 730 F.3d 336, 341 (3d Cir. 2013). We
distinguished between raising an issue before the district court,
which “is insufficient to preserve for appeal all arguments
bearing on that issue,” and raising an argument, which can be
pressed on appeal, but only if it “depend[s] on both the same
legal rule and the same facts as the argument presented in the
District Court.” Id. at 341–42. That condition is “essential to
the proper functioning of our adversary system because even
the most learned judges are not clairvoyant” and “we do not
require [them] to anticipate and join arguments that are never
raised by the parties.” United States v. Dupree, 617 F.3d 724,
728 (3d Cir. 2010) (citations omitted).
2
We had declined to determine in Joseph whether this
framework applies beyond the context of Rule 12 of the
Federal Rules of Criminal Procedure, which requires parties to
raise certain defenses, objections, and requests by pretrial
motion to avoid waiver. United States v. Joseph, 730 F.3d 336,
339 n.3 (3d Cir. 2013). But we have since used it to determine
whether we should review an argument de novo or for plain
error in the context of Rule 52(b) of the Federal Rules of Civil
Procedure, which provides that arguments not brought to the
district court’s attention are generally reviewable for plain
error. See United States v. Grant, 9 F.4th 186, 199–200 (3d
Cir. 2021); see also Spireas v. Comm’r of Internal Revenue,
886 F.3d 315, 321 n.9 (3d Cir. 2018) (clarifying that although
Joseph arose out of the Rule 12 context, it “provides the
governing rule” for the “threshold question of whether an
argument was made” in the district court for both civil and
criminal cases).
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Notably, we did not say that a party must have made the
same argument verbatim before the district court. To the
contrary, we observed that “[p]arties are free . . . to place
greater emphasis and more fully explain an argument on appeal
than they did in the District Court . . . [or] even, within the
bounds of reason, reframe their argument.” Joseph, 730 F.3d
at 341. And although we cautioned that “[t]here is a limit . . .
on the extent to which an argument may be reframed,” as
“[r]evisions at some point become differences in kind,” we
made clear that parties have leeway to change the way they
present their arguments on appeal so long as they do not
“change the[ir] substance.” Id. at 341 & n.5. The ultimate
question is whether the parties “g[a]ve the District Court the
opportunity to consider the argument.” Dupree, 617 F.3d at
731.
Abreu met that standard here. In the sentencing
memorandum he submitted objecting to the § 2K2.1(a)(4)
enhancement, he argued that the District Court “must ignore”
the commentary to § 4B1.2 because it was inconsistent with
the text. App. 64–65. Specifically, he urged that the
commentary may have related to the “residual clause” of the
Armed Career Criminal Act, but once the Supreme Court held
in Johnson v. United States, 576 U.S. 591, 597 (2015), that the
“residual clause” was unconstitutionally vague and the
Sentencing Commission struck an identical clause from
§ 4B1.2(a), see Brown v. United States, 139 S. Ct. 14, 15
(2018) (Sotomayor, J., dissenting), the commentary could no
longer be viewed as interpreting or explaining the text that
remained. In support of his argument, Abreu cited Stinson, 508
U.S. at 43–45, which addressed the weight courts should give
to the Commission’s commentary by analogizing it to an
agency’s interpretation of its own legislative rule, and he
argued that no weight was due § 4B1.2’s commentary because
it did not merely interpret the term “crime of violence” but
expanded its textual definition.
On appeal, although he frames it slightly differently,
Abreu makes the same argument. He contends that
§ 4B1.2(a)’s definition of “crime of violence” unambiguously
excludes conspiracy crimes, so it would be improper to defer
to commentary that says they are included. Although he now
cites to Kisor, 139 S. Ct. at 2414–15, a different, more recent
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Supreme Court case, preservation requires advancement of the
same legal principle, not citation to the same legal precedent.
In any event, Kisor merely clarified the same doctrinal rule at
issue in Stinson: the deference owed to an agency’s
interpretation of its own regulations, with the same
implications for Hightower. Abreu’s argument thus rests on
“both the same legal rule,” i.e., that courts should not defer to
contrary agency guidance in the face of clear text, “and the
same facts . . . presented in the District Court,” i.e., the tension
between the commentary and the definition of “crime of
violence” in the text. Joseph, 730 F.3d at 342.
Were there any doubt that Abreu “g[a]ve the District
Court the opportunity to consider the argument” at sentencing,
Dupree, 617 F.3d at 731, we need look no further than the
sentencing hearing, where the District Court explained it was
applying the § 2K2.1(a)(4) enhancement because it still
“regard[ed] [Hightower] as binding.” App. 126–27. Because
Abreu preserved his argument, we proceed to review it de
novo.
B. Conspiracy Is Not a Crime of Violence
Under § 2K2.1
We turn next to the substance of Abreu’s argument.
Section 2K2.1, like the Career-Offender Guideline, increases
defendants’ Guidelines ranges based on prior convictions for
crimes of violence. But unlike the Career-Offender Guideline,
it is not followed by a guideline that defines its terms. Cf.
U.S.S.G. § 4B1.2 (“Definitions of Terms Used in Section
4B1.1”). Nor is the term “crime of violence” defined within
the text of § 2K2.1 itself. Nonetheless, the commentary to
§ 2K2.1 states that “‘[c]rime of violence’ has the meaning
given that term in § 4B1.2(a) and Application Note 1 of the
Commentary to § 4B1.2.” U.S.S.G. § 2K2.1 cmt. 1. It is
unsurprising, then, that both parties tout the teachings of
§ 4B1.2. The lessons they would have us draw, however, are
polar opposites.
Abreu takes the position that Nasir is dispositive. He
contends that our holding there as to the exclusion of inchoate
crimes from the definition of “controlled substance offenses”
under § 4B1.2(b) applies equally to § 4B1.2(a), and because
the omission of conspiracy from the “many other offenses”
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listed in § 4B1.2(a) “alone indicates that it does not include
them,” Nasir, 17 F.4th at 471, the commentary cannot alter
their unambiguous exclusion from the definition of “crime of
violence.”
The Government acknowledges Nasir but seeks to cabin
it in two ways, neither of which is persuasive. First, it points
out that Nasir addressed only § 4B1.2(b), finding that the term
“controlled substance offenses” unambiguously excludes
inchoate crimes because it references only substantive offenses
and omits any mention of inchoate crimes. In contrast, the
Government argues, § 4B1.2(a) defines “crime of violence” to
include not only the use of force but also the “attempted use”
of force, which indicates that it includes inchoate crimes, or at
least introduces some ambiguity. If anything, however, this
argument cuts the other way, for it makes clear that the
Sentencing Commission knew how to include inchoate
offenses in the Guidelines and opted here to include only
attempt in the text, not conspiracy. See Nasir, 17 F.4th at 471
(observing that the inclusion of attempt in § 4B1.2(a) “suggests
that the omission of inchoate crimes from [§ 4B1.2(b)] was
intentional”); see also United States v. Havis, 927 F.3d 382,
386 (6th Cir. 2019) (“[T]he Commission knows how to
include attempt crimes when it wants to—in subsection (a) of
[§ 4B1.2], for example, the Commission defines ‘crime of
violence’ as including offenses that have ‘as an element the
use, attempted use, or threatened use of physical force against
the person of another.’” (emphasis in original)); United States
v. Winstead, 890 F.3d 1082, 1091 (D.C. Cir. 2018) (noting that
“the Commission showed within [the definition of ‘crime of
violence’ in] § 4B1.2 itself that it knows how to include
attempted offenses when it intends to do so.”).
Second, the Government observes that unlike § 4B1.1,
which refers to § 4B1.2, and hence its definitions, in the text,
§ 2K2.1 offers neither a definition nor a cross-reference for the
term “crime of violence.” From this, the Government ascribes
to § 2K2.1 ambiguity lacking in § 4B1.1 and justification for
the Sentencing Commission to interpret “crime of violence” in
§ 2K2.1 through commentary. The Government finds further
justification in the fact that the commentary to § 2K2.1
references not only § 4B1.2 but also its commentary, see
U.S.S.G. § 2K2.1 cmt. 1, so from the commentary referencing
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the commentary, the Government would have us conclude that
“crime of violence” in § 2K2.1 includes “the offenses of aiding
and abetting, conspiring, and attempting to commit such
offenses,” U.S.S.G. § 4B1.2 cmt. 1.
We decline to thread this daisy chain of commentary or
to “wave the ambiguity flag,” Kisor, 139 S. Ct. at 2415, just
because § 2K2.1 does not define “crime of violence” in its text.
Instead, the Supreme Court has instructed us to “exhaust all the
‘traditional tools’ of construction,” including text, structure,
history, and purpose, before finding genuine ambiguity. Id.
(quoting Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 843 n.9 (1984)); see also Scott, 14 F.4th at 197
n.4 (“The same ‘[b]asic tenets of statutory construction,’
including the use of canons of construction, apply when
interpreting the Sentencing Guidelines.” (quoting United
States v. Grier, 585 F.3d 138, 143 (3d Cir. 2009))). The
application of these tools here precludes that finding.
We start with the Guidelines’ text and structure.
Normally, having concluded that conspiracy is not a “crime of
violence” under § 4B1.2, we might impute the same meaning
to the term in § 2K2.1 based on the canon that presumes
“identical words used in different parts of the same act . . .
[generally] have the same meaning.” Scott, 14 F.4th at 197
(quoting Atl. Cleaners & Dyers, Inc. v. United States, 286 U.S.
427, 433 (1932)); see also Powerex Corp. v. Reliant Energy
Servs., Inc., 551 U.S. 224, 232 (2007). But as the Government
points out, commentary to yet another guideline, U.S.S.G.
§ 1B1.1, cautions that “[d]efinitions of terms [that] appear in
other sections . . . are not designed for general applicability.”
U.S.S.G. § 1B1.1 cmt. 2. Put differently, this commentary says
we should not simply assume that the “whole-act rule” applies,
and we should instead determine a definition’s “applicability
to sections other than those expressly referenced . . . on a case
by case basis.” Id.
We need not decide today, however, whether we are
bound by this commentary or its significance in the wake of
Kisor, for under either approach the result in this case is the
same. If we rely on the whole-act rule, “crime of violence”
means the same thing in § 2K2.1 as it does in § 4B1.2,
excluding conspiracies. And if we apply the case-by-case
9
approach, from § 1B1.1’s commentary, this is a case where
§ 4B1.2’s definition does carry over to a section “other than
[that] expressly referenced.” Id. After all, the same phrase not
only appears in both sections, but it is also used in the same
way: to enhance sentences based on prior convictions. See
Bastardo-Vale v. Att’y Gen., 934 F.3d 255, 265 (3d Cir. 2019)
(acknowledging the presumption that a phrase used in two
statutes with similar purposes has the same meaning in both
statutes).3 So, either way, conspiracies do not count as crimes
of violence under § 2K2.1, and any commentary that says
otherwise does not warrant Kisor deference. See Nasir, 17
F.4th at 469–72.
In short, the plain text, structure, and purpose of the
Guidelines indicate that “there is only one reasonable
construction” of “crime of violence” as used in § 2K2.1, Kisor,
139 S. Ct. at 2415, and, just as in § 4B1.2(a), that construction
excludes conspiracy offenses. As a result, Abreu’s prior
conviction for conspiracy to commit second-degree aggravated
assault does not qualify him for an enhancement under
§ 2K2.1(a)(4), and the District Court erred in applying that
enhancement.
III. Conclusion
For the foregoing reasons, we will vacate Abreu’s
sentence and remand for resentencing in line with this opinion.
3
Additionally, even though we do not accord the
commentary to § 2K2.1 Kisor deference, its cross-reference to
the definition provided in § 4B1.2(a) reinforces the notion that
the term “crime of violence” should be interpreted the same
way in both guidelines.
10