United States v. Antoinette Adair ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 20-1463
____________
UNITED STATES OF AMERICA
v.
ANTOINETTE ADAIR,
Appellant
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2:16-cr-00259-001)
District Judge: Honorable Mark R. Hornak
____________
Argued: April 28, 2021
____________
Before: SMITH, Chief Judge,* PHIPPS, and ROTH, Circuit
Judges.
(Filed: June 30, 2022)
____________
*
Judge Smith was Chief Judge when this appeal was argued.
Judge Smith completed his term as Chief Judge and assumed
senior status on December 4, 2021.
Donovan J. Cocas [ARGUED]
Laura S. Irwin
UNITED STATES ATTORNEY’S OFFICE
WESTERN DISTRICT OF PENNSYLVANIA
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for United States of America
Julie A. McGrain [ARGUED]
OFFICE OF FEDERAL PUBLIC DEFENDER
DISTRICT OF NEW JERSEY
800-840 Cooper Street, Suite 350
Camden, NJ 08102
Counsel for Antoinette Adair
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OPINION OF THE COURT
____________
PHIPPS, Circuit Judge.
For several years, Antoinette Adair pushed pills in
Pittsburgh. She was arrested and later pleaded guilty to a ten-
count indictment for her role in illegally distributing
prescription painkillers. In calculating Adair’s sentence, the
District Court increased her offense level by four points for
being an organizer or leader of extensive criminal activity. See
U.S.S.G. § 3B1.1(a). And although Adair timely pleaded
guilty, the government did not move for a one-point reduction
for acceptance of responsibility. See id. § 3E1.1(b).
Accounting for those and other sentencing factors, the District
Court calculated the range for Adair’s imprisonment under the
Sentencing Guidelines as between 188 and 235 months. The
District Court then granted a downward variance so that Adair
received a 168-month prison term for the longest of her
concurrent sentences.
2
In this appeal, Adair disputes the initial Guidelines range
for her imprisonment. She argues that the District Court erred
by applying a four-point increase for the organizer-leader
enhancement. She also contends that the District Court should
have compelled the government to move for a one-point
reduction for acceptance of responsibility. For the reasons
below, we will affirm the District Court’s judgment of
sentence.
BACKGROUND
Adair gained access to prescription opiate pills as a
treatment for back pain. A physician prescribed her 300 opioid
pills per month (240 oxycodone and 60 oxymorphone), and she
became addicted.
Despite her addiction, Adair recognized that a broader
market existed for prescription pills. She convinced her
mother and her sister to obtain opiate painkillers from the same
physician. After that doctor pleaded guilty to illegally
distributing controlled substances in 2012, Adair found other
physicians who would overprescribe opioid pills.
For the next several years, Adair participated in and
coordinated transactions for prescription pills. At one point,
she had twelve people in her network of suppliers who would
obtain prescriptions and acquire opioid pills. Adair
coordinated the distribution and sale of those pills to addicts,
including herself, as well as to a drug dealer who oversaw a
much larger pill-distribution network. She decided when and
where sales would occur, and she had oversight over her
suppliers, referring to some of them as her sons. She also made
drug deliveries herself, occasionally with one of her buyers
serving as a chauffeur and bodyguard.
Adair was also adept at responding to the vicissitudes of the
prescription-pill black market. With respect to the drug dealer
who oversaw a larger pill network, she would, when necessary,
front him pills or provide extra pills for free when he could not
3
afford to purchase her full supply. When he needed a new gun,
she offered to find him one. Adair also demonstrated
responsiveness and flexibility with her addict clients. She
would arrange for them to buy from other drug dealers when
she had no pills for them. Similarly, she advised one of her
suppliers on whether to report a gun offered as collateral for
drugs as stolen. But she accommodated only so much: on one
occasion, Adair threatened and pointed a gun at a confidential
informant for shorting her the amount owed for pills.
After her arrest in December 2016, Adair’s pill-distribution
operation came to an end. In January 2018, she pleaded guilty
to a ten-count indictment for violating multiple federal statutes:
18 U.S.C. § 1347 (health care fraud); 21 U.S.C. § 841(a)(1)
(possession with intent to distribute a controlled substance); id.§ 841(b)(1)(C) (possession with intent to distribute
oxymorphone and oxycodone); id. § 846 (conspiracy to
distribute oxycodone and oxymorphone). See 18 U.S.C.
§ 3231 (conferring jurisdiction to the district courts in cases
involving “offenses against the laws of the United States”).
She did so without entering into a plea agreement with the
government, and they disagreed over several aspects of her
sentence calculation.
After briefing and a two-day hearing, the District Court
fixed the Guidelines range for Adair between 188 and 235
months’ imprisonment. That calculation included a four-point
increase in the offense level for the organizer-leader
enhancement. See U.S.S.G. § 3B1.1(a). Also, although the
District Court subtracted two points from Adair’s offense level
for her acceptance of responsibility, see id. § 3E1.1(a), the
government did not move for a third-point acceptance-of-
responsibility reduction for her timely notice of her guilty plea,
see id. § 3E1.1(b).
Ultimately, the District Court varied downward from that
Guidelines range. Due to her personal opioid addiction and
post-plea rehabilitation, the District Court sentenced her to 168
4
months’ imprisonment. Adair timely appealed that sentence,
bringing this matter within this Court’s appellate jurisdiction.
See 28 U.S.C. § 1291; see also 18 U.S.C. § 3742(a); United
States v. Bell, 947 F.3d 49, 53 (3d Cir. 2020).
DISCUSSION
Adair disputes the District Court’s calculation of her
Guidelines range on two grounds. She argues first that the
District Court miscalculated that range by increasing her
offense level by four points for being an organizer or leader of
extensive criminal activity under Guideline § 3B1.1(a). Next,
she contends that the District Court erred by not compelling the
government to move for a third-point reduction for acceptance
of responsibility under Guideline § 3E1.1(b) after she provided
timely notice of her intention to plead guilty. For the reasons
below, neither challenge succeeds.
I. The Organizer-Leader Enhancement in
Guideline § 3B1.1(a)
The application of the organizer-leader enhancement
hinges upon the meaning of the terms ‘organizer’ and ‘leader’
as used in Guideline § 3B1.1. Because the United States
Sentencing Commission has interpreted these terms in its
commentary, the weight afforded to that commentary may
affect the meaning of those terms. Those legal issues receive
de novo review. See United States v. Nasir, 17 F.4th 459, 468
(3d Cir. 2021) (en banc). Review of the District Court’s factual
findings in support of the organizer-leader enhancement
proceeds under the clear error standard because Adair
preserved this challenge. See United States v. Huynh, 884 F.3d
160, 165 (3d Cir. 2018).
A. The Stinson Paradigm and Auer Deference
The Supreme Court has established a general paradigm for
the relationship between the Sentencing Guidelines and the
Commission’s interpretive commentary. Under that paradigm,
formulated in Stinson v. United States, 508 U.S. 36 (1993),
5
Guidelines drafted by the Commission are treated as legislative
rules,1 and the Commission’s comments interpreting the
Guidelines are viewed as interpretive rules.2 The paradigm
applies only to the Commission’s interpretive commentary, not
its commentary related to either background information or
circumstances that may warrant a departure from a guideline.
Compare id. (applying the paradigm only to interpretive
commentary), with U.S.S.G. § 1B1.7 (describing three
different types of commentary to the Guidelines).
1
The term ‘legislative rule’ generally refers to an agency rule
promulgated through formal or informal (notice-and-
comment) rulemaking, although certain subject-matter
exceptions exist. See 5 U.S.C. § 556–57 (setting forth
procedures for formal rulemaking); id. § 553(c) (establishing
procedures for informal rulemaking); see also id. § 553(a)(1)–
(2) (allowing for rules on certain topics without the need for
formal or informal rulemaking). In Stinson, the Supreme Court
recognized that Sentencing Guidelines could be analogized to
legislative rules because both are promulgated “by virtue of an
express congressional delegation of authority for rulemaking
. . . and through the informal rulemaking procedures.” Stinson,
508 U.S. at 44–45.
2
To qualify as an interpretive rule, a rule must “derive a
proposition from an existing document whose meaning
compels or logically justifies the proposition.” Cath. Health
Initiatives v. Sebelius, 617 F.3d 490 (D.C. Cir. 2010) (quoting
Robert A. Anthony, “Interpretive” Rules, “Legislative” Rules,
and “Spurious” Rules: Lifting the Smog, 8 Admin. L.J. Am. U.
1, 6 n.21 (1994)); see also 5 U.S.C. § 553(b)(3)(A) (exempting
interpretive rules from the rulemaking procedures). After
considering the “functional purpose of [the] commentary,” the
Supreme Court determined that the Commission’s interpretive
commentary of the Guidelines operated much like an agency’s
interpretive rule for its own legislative rules. Stinson, 508 U.S.
at 45.
6
The Stinson paradigm provides only half of the framework
for analyzing the Commission’s interpretive commentary; the
other half requires determining the weight that such
commentary should receive. When the Supreme Court decided
Stinson, an agency’s interpretation of its own legislative rule
received Seminole Rock deference, later known as Auer
deference. See Bowles v. Seminole Rock & Sand Co., 325 U.S.
410 (1945); Auer v. Robbins, 519 U.S. 452 (1997). Such
deference gave controlling weight to an agency’s interpretation
of its own regulation unless the interpretation was “plainly
erroneous or inconsistent with the regulation.” Stinson,
508 U.S. at 45 (quoting Seminole Rock, 325 U.S. at 414); see
also Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 110 (2015)
(Scalia, J., concurring in judgment) (“Interpretive rules that
command deference do have the force of law.”). Thus, the
application of Auer deference within the Stinson paradigm
required courts to defer to the Commission’s commentary for
a Guideline unless that interpretation was plainly erroneous or
inconsistent with the Guideline. See Stinson, 508 U.S. at 47;
see also U.S.S.G. § 1B1.7, Commentary.
Although the Stinson paradigm has not changed, the
Supreme Court reprised Auer deference in Kisor v. Wilkie,
139 S. Ct. 2400 (2019). That decision made clear that for Auer
deference to apply, “a court must exhaust all the ‘traditional
tools’ of construction,” id. at 2415 (quoting Chevron U.S.A.
Inc. v. Nat. Res. Def. Council Inc., 467 U.S. 837, 843 n.9
(1984)), and determine that the regulation is “genuinely
ambiguous,” id. at 2414. Under this approach, a court must
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.” Id. at 2415.
Kisor did more than render Auer deference “a doctrine of
desperation.” INS v. Cardoza-Fonseca, 480 U.S. 421, 454
(1987) (Scalia, J., concurring in the judgment) (opining that
Chevron deference should not be “a doctrine of desperation”).
In addition, before affording controlling deference to an
7
agency’s interpretation of a genuinely ambiguous regulation, a
court must make an “independent inquiry” into the “character
and context” of the reasonable interpretations of the regulation,
i.e., those within the “zone of ambiguity.” Kisor, 139 S. Ct. at
2416. As guideposts, the Supreme Court identified three
character-and-context circumstances in which an agency’s
otherwise reasonable interpretation should not receive
controlling weight. See id. at 2416–17. Those occur when an
agency’s interpretation is not its “‘authoritative’ or ‘official
position,’” id. (quoting United States v. Mead Corp., 553 U.S.
218, 257 (2001) (Scalia, J., dissenting)), when the agency’s
interpretation does not implicate its “substantive expertise” in
some way, id. at 2417, and when the agency’s reading does not
reflect its “fair and considered judgment” but rather is a
“convenient litigating position,” a “post hoc rationalization,”
id. (quoting Christopher v. SmithKline Beecham Corp.,
567 U.S. 142, 155 (2012) (alteration omitted)), or a parroting
of a federal statute, see id. at 2417 n.5 (citing Gonzales v.
Oregon, 546 U.S. 243, 257 (2006)). In sum, under Kisor, a
genuine ambiguity in an agency’s regulation is necessary for
Auer deference, but it is not sufficient: the character and
context of an agency interpretation that falls within the
regulation’s zone of ambiguity must also counsel in favor of
deference. Kisor, 139 S. Ct. at 2415–18.
After Kisor, this Court, sitting en banc, unanimously
concluded that the reprised standard for Auer deference applied
to the Commission’s interpretive commentary. See Nasir,
17 F.4th at 470–71. With that new understanding, prior
caselaw that had afforded Auer deference to the Commission’s
interpretive commentary without engaging in the Kisor process
does not automatically retain its controlling force. See id.
Rather, to remain binding, such a decision must have
(presciently) complied with the Kisor process: a genuine-
ambiguity analysis followed by an independent evaluation of
the character and context of the agency’s interpretation,
provided that the agency’s interpretation falls within the
Guideline’s zone of ambiguity. See id. at 471–72.
8
Because the Commission promulgated Guideline
§ 3B1.1(a), the Stinson paradigm applies. But the District
Court, which sentenced Adair before the Nasir decision, did
not follow the Kisor process as Nasir now requires before
consideration of the interpretive commentary to determine the
meaning of a Guideline.3 As explained below, however, had
the District Court properly done so, it would have reached the
same outcome, and therefore that legal error was harmless. See
generally Fed. R. Crim. P. 52(a) (“Any error, defect,
irregularity, or variance that does not affect substantial rights
must be disregarded.”); see also United States v. Jenkins,
333 F.3d 151, 153 (3d Cir. 2003) (applying the principle that a
judgment may be affirmed for any ground supported by the
record to a criminal conviction when the law governing that
judgment had been changed by intervening precedent).
B. A Post-Kisor, Post-Nasir Interpretation of the
Organizer-Leader Enhancement in
Guideline § 3B1.1(a)
Before Kisor and Nasir, this Court had interpreted the
organizer-leader enhancement in Guideline § 3B1.1(a) on
several occasions.4 Those cases all, in some way, deferred to
3
Nasir does not prevent courts from considering the other
forms of commentary – background commentary or
commentary regarding a departure from a guideline – or other
resources from the Commission in imposing a sentence. See
Nasir, 17 F.4th at 470–71; see also U.S.S.G. § 1B1.7
(describing three types of commentary to the Guidelines).
Nasir applied the Kisor process only to the use of the
Commission’s interpretive commentary as a tool to determine
the meaning of a Guideline. See Nasir, 17 F.4th at 470–71; see
also Stinson, 508 U.S. at 45.
4
See United States v. Jarmon, 14 F.4th 268 (3d Cir. 2021);
United States v. Raia, 993 F.3d 185 (3d Cir. 2021); United
States v. Williams, 974 F.3d 320 (3d Cir. 2020); United States
9
the Commission’s interpretive commentary, which treated
organizers and leaders interchangeably and used a multi-factor
test to determine the applicability of the enhancement.5 See
v. Huynh, 884 F.3d 160 (3d Cir. 2018); United States v.
Fountain, 792 F.3d 310 (3d Cir. 2015); United States v.
Starnes, 583 F.3d 196 (3d Cir. 2009); United States v. Barrie,
267 F.3d 220 (3d Cir. 2001); United States v. Helbling,
209 F.3d 226 (3d Cir. 2000); United States v. Bass, 54 F.3d 125(3d Cir. 1995); United States v. Katora, 981 F.2d 1398 (3d Cir.
1992); United States v. Belletiere, 971 F.2d 961 (3d Cir. 1992);
United States v. Phillips, 959 F.2d 1187 (3d Cir. 1992); United
States v. Ortiz, 878 F.2d 125 (3d Cir. 1989); see also United
States v. Chau, 293 F.3d 96 (3d Cir. 2002) (interpreting the
terms ‘organizer,’ ‘leader,’ ‘manager’, and ‘supervisor’ as used
in § 3B1.1(c)); United States v. Bethancourt, 65 F.3d 1074 (3d
Cir. 1995) (same); United States v. Felton, 55 F.3d 861 (3d Cir.
1995) (same).
5
See Jarmon, 14 F.4th at 275 (relying on a case that relies on
the commentary); Raia, 993 F.3d at 191–92 (relying on the
commentary and other cases that rely on the commentary);
Williams, 974 F.3d at 376 (relying on the commentary);
Huynh, 884 F.3d at 170 (relying on the commentary and other
cases that rely on the commentary); Fountain, 792 F.3d at 321
(relying on a case that relies on the commentary); Starnes,
583 F.3d at 216–17 (relying on the commentary and a case that
relies on the commentary); Barrie, 267 F.3d at 223 (relying on
the commentary); Helbling, 209 F.3d at 243 (relying on the
commentary and other cases that rely on the commentary);
Bass, 54 F.3d at 128–29 (same); Katora, 981 F.2d at 1402–05
(same); Belletiere, 971 F.2d at 969–72 (same); Phillips,
959 F.2d at 1191–92 (relying on cases that rely on the
commentary); Ortiz, 878 F.2d at 127 (relying on the
commentary); see also Chau, 293 F.3d at 103 (relying on a
case that relies on the commentary); Bethancourt, 65 F.3d at
1081 (same); Felton, 55 F.3d at 864 (relying on cases that rely
on the commentary).
10
U.S.S.G. § 3B1.1, app. n.4. But none of those cases engaged
in the Kisor process. See Kisor, 139 S. Ct. at 2415–18. They
did not exhaust the traditional tools of construction to conclude
that § 3B1.1 was genuinely ambiguous. See id. at 2415. Nor
did any of those cases determine that the Commission’s
interpretation was a reasonable reading within § 3B1.1’s zone
of ambiguity. See id. at 2416. And they did not examine the
character and context of the Commission’s interpretation. See
id. at 2416–17. Without that now-essential analysis, the
binding nature of those cases’ interpretations of § 3B1.1(a) no
longer perseveres, and the Guideline must be reevaluated under
the Kisor process. That starts with conducting the genuine-
ambiguity analysis using the traditional tools of construction to
examine the text, structure, purpose, and history of § 3B1.1(a).
1. Text
Words and phrases in the text of Guideline § 3B1.1(a)
inform the meaning of the organizer-leader enhancement. The
Guideline increases the offense level by four points if a
defendant is an organizer or leader of extensive criminal
activity:
If the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was
otherwise extensive, increase by 4 levels.
U.S.S.G. § 3B1.1(a). Neither that subsection nor any other part
of the Guidelines specifically defines the terms ‘organizer’ and
‘leader.’ Also, because those words are not terms of art, they
take on their “ordinary, contemporary, common meaning.”
Perrin v. United States, 444 U.S. 37, 42 (1979); see also
Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995);
Abraham v. St. Croix Renaissance Grp., L.L.L.P., 719 F.3d
270, 277 (3d Cir. 2013). To discern the common ordinary
meaning of those terms at the time of § 3B1.1’s promulgation,
it is permissible to consult contemporary dictionaries. See,
e.g., Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070–71
(2018); Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014);
11
Del. Cnty., Pa. v. Fed. Hous. Fin. Agency, 747 F.3d 215, 221
(3d Cir. 2014).
At the outset, several dictionary definitions for the terms
‘organizer’ and ‘leader’ do not fit the context of the organizer-
leader enhancement. As used in § 3B1.1(a), those terms apply
to a “defendant,” convicted “of criminal activity that involved
five or more participants or was otherwise extensive.”
U.S.S.G. § 3B1.1(a). In that setting, it makes no sense to read
the term ‘organizer’ as referring to, for instance, “a notebook
in which correspondence [or] papers . . . are sorted by subject,
date, or otherwise, for systematic handling.”6 Nor is it sound
to interpret the term ‘leader’ as meaning “a primary or terminal
shoot of a plant.”7
After excluding those and other contextually inappropriate
definitions, the remaining dictionary definitions of ‘organizer’
and ‘leader’ provide a foundation for the meaning of those
terms as used in § 3B1.1(a). An ‘organizer’ generally meant
“one that organizes.”8 And ‘organize’ had several related,
relevant definitions that all centered around generating a
coherent functional structure through the coordination of
individual effort.9 Also, as commonly understood, the term
6
Random House Dictionary of the English Language 1365
(1987) (hereinafter ‘Random House’).
7
Webster’s Third New International Dictionary 1283 (1986)
(hereinafter ‘Webster’s Third’).
8
Webster’s Third 1590; see also Random House 1365;
Webster’s New World Dictionary 1002 (1986); Ninth New
Collegiate Dictionary 831 (1986).
9
See Webster’s Third 1590 (defining ‘organize’ as “to arrange
or constitute into a coherent unity in which each part has a
special function or relation,” “to unify into a coordinated
functioning whole [or to] put in readiness for coherent or
cooperative action,” “to set up an administrative and functional
12
‘leader’ referred to “a person who by force of example, talents,
or qualities of leadership plays a directing role [or] wields
commanding influence.”10
Other textual aspects of § 3B1.1(a) illuminate the meaning
of ‘organizer’ and ‘leader.’ The Guideline precedes those
terms with the indefinite article, “an.” That suggests that
§ 3B1.1(a) is not seeking to identify a single person as
organizer or leader – as would be the case if the Guideline
included a definite article to read ‘the organizer or leader.’
Instead, through the indefinite article, § 3B1.1(a) allows the
possibility that multiple persons engaged in the same criminal
activity could qualify as organizers or leaders. Also, the
Guideline joins the terms ‘organizer’ and ‘leader’ by the
conjunction, ‘or,’ which most commonly functions to indicate
either “an alternative between different or unlike things, states,
or actions”11 or a “choice between alternative things, states, or
courses.”12 Under either of those meanings, the use of ‘or’ to
link ‘organizer’ and ‘leader’ would mean that those concepts
were dissimilar, if not alternatives to one another. But ‘or’ also
has a different meaning: it can indicate “the synonymous,
equivalent, or substitutive character of two words or
structure for [or to] provide with or establish as an
organization,” and “to arrange by systematic planning and
coordination of individual effort”).
10
Webster’s Third 1283.
11
Webster’s Third 1585 (providing examples of this meaning
such as “wolves [or] bears are never seen in that part of the
country”; “sick [or] well, he should not be here”; and “eat [or]
go hungry is all the same to him).
12
Webster’s Third 1585 (providing examples of this meaning
such as “will you have tea [or] coffee”; and “decide to study
medicine [or] law”; and “to be, [or] not to be: that is the
question”).
13
phrases,”13 or even a “correction or greater exactness of
phrasing or meaning.”14 See Honig v. Doe, 484 U.S. 305, 334
(1998) (Scalia, J., dissenting) (identifying the multiple
common definitions of the term ‘or’). Under those meanings,
the terms ‘organizer’ and ‘leader’ would either be
synonymous, or the subsequent term, ‘leader’ would provide
greater exactness to the meaning of the term ‘organizer.’ But
under their common ordinary meaning, the terms ‘organizer’
and ‘leader’ were neither synonyms nor alternatives; thus, the
first definition of ‘or’ as a disjunctive conjunction befits
§ 3B1.1(a). See United States v. Tejada-Beltran, 50 F.3d 105,
112 (1st Cir. 1995).15 Thus, in the context of § 3B1.1(a),
multiple persons may qualify as organizers or leaders of
extensive criminal activity, and a criminal defendant could be
an organizer, a leader, or both.
2. Structure
The structure of Guideline § 3B1.1 also affects the meaning
of the organizer-leader enhancement. The most telling aspect
of the Guideline’s structure is that it provides three distinct
enhancements for having an aggravating role in a criminal
offense. Subsection (a) contains the most severe of those
enhancements, the four-point increase for organizers and
leaders of extensive criminal activity. See U.S.S.G.
§ 3B1.1(a). Subsection (b) provides a three-point increase for
being “a manager or supervisor (but not an organizer or leader)
13
Examples of this meaning include “fell over a precipice [or]
cliff”; “the off [or] far side”; and “lessen or abate.” Webster’s
Third 1585.
14
Examples of this meaning include “these essays, [or] rather
rough sketches”; “the present king had no children – [or] no
legitimate children.” Webster’s Third 1585.
15
See also United States v. Wardell, 591 F.3d 1279, 1304 (10th
Cir. 2009); United States v. Reneslacis, 349 F.3d 412, 417 (7th
Cir. 2003).
14
and the criminal activity involved five or more participants or
was otherwise extensive.” Id. § 3B1.1(b). Subsection (c)
provides a two-point enhancement for “an organizer, leader,
manager, or supervisor in any criminal activity other than
described in [subsections] (a) or (b).” Id. § 3B1.1(c).
That structure, coupled with subsection (b)’s specification
that organizers and leaders are exclusive of managers and
supervisors, gives additional dimension to those terms. The
greater enhancement for organizers and leaders in
subsection (a) suggests that they have greater culpability than
managers16 or supervisors.17 See U.S.S.G. Ch. 1, Pt. A,
Subpt. 1 (citing the principle of just deserts – that “punishment
should be scaled to the offender’s culpability” – as one
philosophy informing the Guidelines). That structural
difference provides insight into distinguishing ‘leader’ from
the related terms ‘manager’ and ‘supervisor.’ To be more
16
The term ‘manager’ referred to a person with oversight over
operations or other persons. See Webster’s Third 1372(“[A]
person that conducts, directs, or supervises something.”);
Manager, Black’s Law Dictionary (6th ed. 1990) (“A person
chosen or appointed to manage, direct, or administer the affairs
of another person or of a business, sports team, or the like.”);
Random House 1166–67 (“[A] person who has control or
direction of an institution, business, etc., or of a part, division,
or phase of it.”).
17
The term ‘supervisor’ also referred to a person with oversight
over operations or other persons. See Webster’s Third 2296
(“[O]ne that supervises a person, group, department,
organization, or operation.”); Supervisor, Black’s Law
Dictionary (6th ed. 1990) (“In a broad sense, one having
authority over others, to superintend and direct.”); Random
House 1911 (“[A] person who supervises workers or the work
done by others; superintendent.”).
15
culpable than a manager or supervisor, a leader must have a
greater degree of operational control over criminal activity.
Another aspect of comparative structure of subsections (a)
and (b) presents a minor wrinkle: contrary to the consistent-
usage canon,18 the term ‘or’ is used differently in those
subsections. In subsection (a), the term ‘or’ joins separate
concepts, ‘organizer’ and ‘leader.’ See U.S.S.G. § 3B1.1(a).
But see U.S.S.G. § 3B1.1, app. n.4 (failing to distinguish
between ‘organizer’ and ‘leader’). By contrast, in
subsection (b), the ‘or’ conjunction links similar terms,
‘manager’ and ‘supervisor.’ See U.S.S.G. § 3B1.1(b). But the
consistent-usage canon is not absolute. See United States v.
Cleveland Indians Baseball Co., 532 U.S. 200, 213 (2001)
(“Although we generally presume that ‘identical words used in
different parts of the same act are intended to have the same
meaning,’ the presumption ‘is not rigid,’ and ‘the meaning [of
the same words] well may vary to meet the purposes of the
law.’” (quoting Atl. Cleaners & Dryers, Inc. v. United States,
286 U.S. 427, 433 (1932) (alteration in original))).19 Rather,
the canon applies most powerfully to specialized terms of art.
See, e.g., Utica Mut. Ins. Co. v. Munich Reinsurance Am., Inc.,
18
See generally Pereira v. Sessions, 138 S. Ct. 2105, 2115
(2018) (quoting Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S.
560, 571 (2012) (“[I]t is a normal rule of statutory construction
that identical words used in different parts of the same act are
intended to have the same meaning.”); United States v. Sims,
957 F.3d 362, 365 (3d Cir. 2020) (applying the canon of
presumption of consistent usage in interpreting the
Guidelines).
19
See also Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 170 (2012) (“Though one
might wish it were otherwise, drafters more than rarely use the
same word to denote different concepts, and often (out of a
misplaced pursuit of stylistic elegance) use different words to
denote the same concept.”).
16
7 F.4th 50, 57 (2d Cir. 2021) (quoting Md. Cas. Co. v. W.R.
Grace & Co., 128 F.3d 794, 799 (2d Cir. 1997) (“[T]erms in a
document, especially terms of art, normally have the same
meaning throughout the document.”). And the everyday word
‘or’ is not a term of art. Also, the frequency of the use of the
word ‘or’ in the English language along with its lack of ready
synonyms further excuses its different uses in subsections (a)
and (b).
3. Purpose
In the background commentary for Guideline § 3B1.1, the
Commission identified the purpose for the aggravating-role
enhancement. The Commission intended that the offense level
“should increase with both the size of the organization and the
degree of the defendant’s responsibility.” U.S.S.G. § 3B1.1
Background. To effectuate that purpose, organizers and
leaders of extensive criminal activity should have greater
responsibility for the offense than managers and supervisors –
a conclusion consistent with the structure of Guideline
§ 3B1.1.
4. History
The history of Guideline § 3B1.1 does little to clarify the
meaning of ‘organizer’ or ‘leader.’ The Commission
promulgated § 3B1.1 in 1987 and has not amended it.20
Without any intervening amendments, there is no basis to
consider revisiting the dictionary definitions of ‘organizer’ and
‘leader’ from the time of § 3B1.1’s promulgation.
20
The Commission did amend its interpretive commentary
twice in that period. See U.S.S.G. § 3B1.1 (1991); U.S.S.G.
§ 3B1.1 (1993).
17
C. The Traditional Tools of Construction Yield
Definitive Meanings for the Terms
‘Organizer’ and ‘Leader.’
The text, structure, purpose, and history of Guideline
§ 3B1.1 compel the conclusion that the terms ‘organizer’ and
‘leader’ are not genuinely ambiguous. The common ordinary
meanings of those terms at the time of promulgation together
with the structure and purpose of § 3B1.1 lead to contextually
appropriate definitions of those terms. As used in § 3B1.1, an
‘organizer’ is a person who generates a coherent functional
structure for coordinated criminal activity. Similarly, in
§ 3B1.1, a ‘leader’ is a person with high-level directive power
or influence over criminal activity. Without a genuine
ambiguity, the multi-factor test in the commentary, see
U.S.S.G. § 3B1.1, cmt. 4, is not controlling. Nor do labels,
such as ‘kingpin’ or ‘boss,’ provide deep insight into the
applicability of the organizer-leader enhancement. Cf. id.
(explaining that “titles such as ‘kingpin’ or ‘boss’ are not
controlling”). Rather, a defendant who meets the definition of
an ‘organizer’ or ‘leader’ qualifies for the four-point
enhancement.
D. The District Court’s Factual Findings
Support the Application of the Organizer-
Leader Enhancement.
Applying the post-Kisor, post-Nasir understanding of
§ 3B1.1(a) to the District Court’s factual findings, which are
not clearly erroneous, reveals that Adair qualified for the
organizer-leader enhancement. See Anderson v. City of
Bessemer City, 470 U.S. 564, 573–74 (1985) (explaining that
clear error requires a “definite and firm conviction that a
mistake has been committed.” (citation omitted)); see also
United States v. Igbonwa, 120 F.3d 437, 440–41 (3d Cir.
1997).
The record contains evidence that Adair was an organizer.
She set up a network in which persons obtained prescriptions,
18
filled those, and then coordinated with her to distribute pills.
She used her self-described “potent” “hustle skills” to recruit
persons to obtain those prescriptions, and at one point, she had
twelve people, including her mother and sister, doing so. Tr.
of Antoinette Adair Phone Call to William Richardson (App.
98). As she saw herself, she was a “producer” who set up the
operation. Tr. of Antoinette Adair Phone Call to William
Richardson (Mar. 12, 2016) (App. 224–25). Because her
efforts gave functional structure to a coordinated opiate
distribution scheme that involved at least five participants,
Adair qualifies as an organizer. See U.S.S.G. § 3B1.1(a).
The District Court’s application of the organizer-leader
enhancement can also be sustained on the ground that Adair
was a leader of extensive criminal activity. Although the terms
‘organizer’ and ‘leader’ are separate, they are not wholly
distinct, and when an organizer retains control over the
functional structure for criminal activity that he or she
coordinated, that evidences high-level directive power or
influence over criminal activity needed for the leader
enhancement. Not only did Adair retain control over the
prescription-pill scheme that she coordinated, but also she
made high-level decisions essential to its continued operation.
When she learned that the physician who wrote prescriptions
for her suppliers “was going down,” she found another doctor
to do so. Tr. of Antoinette Adair Phone Call to William
Richardson (App. 98). In addition, Adair decided when and
where sales would occur, and she often coordinated drug sales
with various men whom she oversaw like sons. She had an
elevated position in the criminal activity and used others to
chauffeur her during drug deliveries and to serve as her
bodyguards. To maintain her operation, Adair would
occasionally front pills to another drug dealer in the area or
throw in extra pills for free when he could not afford
everything she had to sell. Adair also arranged sales to her
customers from other drug dealers when she had no pills to sell.
And she took measures to preserve her operations: on at least
19
one occasion, when she was not paid in full, she threatened a
group of buyers at gunpoint.
Adair counters that she was simply a broker or a mere
middleman in a larger criminal enterprise. Some of her
conduct is consistent with those roles. She nurtured and
protected her relationships with her suppliers by, in her words,
“[w]ining and dining em, and taking care of their kids.” Tr. of
Antoinette Adair Phone Call to William Richardson (App. 98).
And Adair was not the largest drug dealer in town; she worked
with another dealer who oversaw a much larger distribution
network. But having those client-management skills and a
relationship with a larger-scale drug dealer does not preclude
Adair from also being a leader. To the contrary, those factors,
together with her strategic operational decisions confirm the
high-level control that she had over the prescription-pill
scheme that she organized. For these reasons, the § 3B1.1(a)
four-point enhancement could also be sustained on the ground
that Adair was a leader.
II. The Additional One-Point Reduction for
Acceptance of Responsibility Under Guideline
§ 3E1.1(b)
As a separate challenge to the calculation of her offense
level, Adair argues that the government should have moved for
an additional one-point reduction for acceptance of
responsibility. The District Court decreased Adair’s offense
level by two points under § 3E1.1(a) upon finding that she had
accepted responsibility for her offenses. But the government
did not move under § 3E1.1(b) to reduce Adair’s offense level
by a third point for acceptance of responsibility. The
government withheld that motion because Adair disputed
certain sentencing enhancements, such as the four-point
increase for being an organizer or leader. Adair now argues
that the government impermissibly withheld the § 3E1.1(b)
motion and that the District Court should have compelled the
government to move for an additional one-point acceptance-
20
of-responsibility reduction. Her challenge fails for the reasons
below.
A. Argument Preservation and the Standard of
Review
As an initial matter, the parties dispute whether Adair
preserved the § 3E1.1(b) argument in District Court, and
preservation affects the standard of appellate review. See
Fed. R. Crim. P. 51(b) (explaining that a party may preserve an
argument by objecting and stating the basis for the objection);
United States v. Joseph, 730 F.3d 336, 337 (3d Cir. 2013). If
Adair preserved her acceptance-of-responsibility argument,
then on appeal, legal issues are examined de novo, and factual
findings are reviewed for clear error. See United States v.
Williams, 344 F.3d 365, 379 (3d Cir. 2003). But if she did not,
then to prevail, she must meet the four requirements of plain-
error review. See United States v. Greenspan, 923 F.3d 138,
147 (3d Cir. 2019).
The plain-error standard, however, is not entirely distinct
from the other standards of appellate review. The first prong
of plain-error review examines whether a district court erred.
See United States v. Jabateh, 974 F.3d 281, 298 (3d Cir. 2020)
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
For purposes of that prong, the difference between preserved
and unpreserved error is immaterial: in either circumstance, an
appellate court uses the standard of review that would have
applied had the argument been preserved. For example, if a
preserved argument would receive de novo review, then the
first prong of the plain-error standard would evaluate error de
novo. Similarly, if a preserved argument would be reviewed
under a more deferential standard, such as clear error or abuse
of discretion, then the more deferential standard would apply
to the first prong of the plain-error standard for an unpreserved
argument. See, e.g., United States v. Kolodesh, 787 F.3d 224,
239 & n.19 (3d Cir. 2015); United States v. Fitch, 659 F.3d
21788, 797 n.7 (9th Cir. 2011).21 Thus, the real effect of
unpreserved error comes not from the first plain-error prong
but rather from the latter three prongs, which do not apply to
preserved arguments and which require an appellant to make
additional showings of plainness, effect on substantial rights,
and serious effect on the fairness, integrity, or public reputation
of judicial proceedings. See generally Olano, 507 U.S. at 732–
36. But if there is no error, then the latter three prongs are of
no consequence, and a challenge fails regardless of whether it
was preserved.
Those principles apply here. As explained below, the
District Court did not err in declining to compel the
government to move for an acceptance-of-responsibility
reduction. Because there was no error, it is unnecessary to
decide the preservation issue: regardless of whether Adair
preserved her argument, she cannot prevail.
B. Guideline § 3E1.1 Before and After
Legislative Amendment
Adair’s challenge focuses on the meaning and scope of
Guideline § 3E1.1, which allows for a downward adjustment
when a defendant accepts responsibility for an offense. That
Guideline has been modified several times since its initial
promulgation by the Commission in 1987, and some of those
amendments are significant here.
In its original form, Guideline § 3E1.1 allowed a sentencing
court to reduce a criminal defendant’s offense level by two
points upon a defendant’s clear demonstration of “a
21
If the error prong of the plain-error standard did not mirror
the underlying standard of review for preserved error but
instead always evaluated error de novo, then that could
incentivize a party to refrain from preserving an argument in
instances where the standard of review for preserved error
would be more deferential than de novo review.
22
recognition and affirmative acceptance of personal
responsibility for the offense of conviction.” U.S.S.G.
§ 3E1.1(a) (1987). The Commission issued five interpretive
comments as application notes to the original version of
§ 3E1.1 to guide the determination of whether a defendant
accepted responsibility for an offense.
But the Commission must periodically review and revise
the Guidelines, see 28 U.S.C. § 994(o), so they are not
necessarily constant over time. To amend the Guidelines, the
Commission first must follow a notice-and-comment
rulemaking process. See id. § 994(x); see also United States v.
Riccardi, 989 F.3d 476, 484 (6th Cir. 2021); see generally
5 U.S.C. § 553(b)–(c). Next, the Commission must notify
Congress of the proposed revisions to the Guidelines. See
28 U.S.C. § 994(p). If, after 180 days, Congress does not
disapprove or modify the proposed amendments, they then take
effect. See id. § 994(p); Stinson, 508 U.S. at 41 (“Amendments
to the guidelines must be submitted to Congress for a 6-month
period of review, during which Congress can modify or
disapprove them.”).
Through this process, in 1992, the Commission amended
Guideline § 3E1.1 to allow an additional one-point acceptance-
of-responsibility reduction. See U.S.S.G. § 3E1.1(b) (1992);
U.S.S.G. app. C amend. 459 (effective Nov. 1, 1992). Under
that new provision, codified in subsection (b), the sentencing
court could decrease the offense level by one additional point
if it made three supplemental determinations. Those required
findings were that the defendant (i) qualified for the two-point
acceptance-of-responsibility reduction; (ii) had an offense
level of 16 or greater; and (iii) “assisted authorities in the
investigation or prosecution of his own misconduct.” U.S.S.G.
§ 3E1.1(b) (1992). For that third requirement, the 1992
Amendments specified two ways to demonstrate assistance to
authorities: timely provision of complete information to the
23
government about a defendant’s involvement in the offense,22
or timely notice of a defendant’s intention to plead guilty.23 As
guidance for the additional one-point reduction, the
Commission issued a sixth application note to its interpretive
commentary. See id. § 3E1.1, cmt. n.6 (describing subsection
(b) and explaining the significance of timeliness to both
subsections (b)(1) and (b)(2)).24
In late 2001 and early 2002, the Commission attempted to
amend § 3E1.1 again. See Sentencing Guidelines for United
States Courts, 66 Fed. Reg. 59330, 59337–38 (Nov. 27, 2001).
The Commission proposed retracting one of the additions from
the 1992 Amendments by eliminating the complete-
information basis for demonstrating assistance to authorities.
See id.; see also U.S.S.G. § 3E1.1(b)(1) (1992). It explained
that a reduction on that ground “undermines the incentive to
plead guilty . . . because the defendant can receive the reduction
even if the defendant has caused the government and the court
to devote substantial resources to preparing the case for trial.”
Sentencing Guidelines for United States Courts, 66 Fed. Reg.
59330, 59337 (Nov. 27, 2001). With the elimination of that
option, the third-point reduction for acceptance of
responsibility would be available only for timely notice of an
intention to plead guilty. According to the Commission, that
would “save both judicial and governmental resources by
providing defendants a stronger incentive to timely plead
guilty.” Id.22
See U.S.S.G. § 3E1.1(b)(1) (1992).
23
See id. § 3E1.1(b)(2).
24
In addition to adding Application Note 6, the Commission
also amended Notes 1 through 5 in ways not relevant here.
24
After completing the notice-and-comment process,25 the
Commission held a public meeting to determine whether to
submit the proposed amendment to Congress. See Notice of
Public Meeting of the United States Sentencing Commission
(Apr. 5, 2002).26 At that meeting, however, a Vice Chair of the
Commission opposed the motion to amend Guideline
§ 3E1.1(b), and it did not receive a second vote. See id.
Without a successful motion, the Commission did not submit
the proposed amendment to Congress and did not promulgate
the amendment. See id.
In 2003, Congress addressed that failed amendment
through § 401 of the PROTECT Act. That legislation amended
Guideline § 3E1.1(b) to delete the complete-information basis
for the third-point acceptance-of-responsibility reduction. See
Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today (PROTECT) Act of 2003, Pub.
L. No. 108-21, § 401(g), 117 Stat. 650, 671 (2003); cf.
U.S.S.G. § 3E1.1(a)(1) (1992).
But § 401 went further than the Commission’s failed
proposal. Section 401 also effectuated a structural change to
the third-point acceptance-of-responsibility reduction. Before
the § 401 amendments, the sentencing court decided the
appropriateness of the additional one-point reduction. See
United States v. Drennon, 516 F.3d 160, 161 (3d Cir. 2008);
U.S.S.G. § 3E1.1 (1992). As revised by § 401, Guideline
25
The time for comments was extended because, before the
initial time for public comments had expired, the Commission
issued a second notice of proposed amendments pertaining to
§ 3E1.1(b) to correct a technical error in the initial proposed
amendment – the inadvertent deletion of the word ‘timely’
from subsection (b)(2). See Sentencing Guidelines for United
States Courts, 67 Fed. Reg. 2456 (Jan. 17, 2002).
26
Available at https://www.ussc.gov/policymaking/meetings-
hearings/notice-april-5-2002 (last visited June 28, 2022).
25
§ 3E1.1(a) conditions the extra one-point reduction upon a
motion by the government. See PROTECT Act
§ 401(g)(1)(A). Section 401 further specified the necessary
contents for the government’s motion: it must state that the
defendant “timely notif[ied] authorities of his intention to enter
a plea of guilty, thereby permitting the government to avoid
preparing for trial and permitting the government and the court
to allocate their resources efficiently.” Id. § 401(g)(1)(B).
Section 401 also added one sentence to Application Note 6,
underscoring that a motion by the government was necessary
for the third-point reduction for acceptance of responsibility:
Because the Government is in the best position to
determine whether the defendant has assisted
authorities in a manner that avoids preparing for trial,
an adjustment under subsection (b) may only be granted
upon a formal motion by the Government at the time of
sentencing.
Id. § 401(g)(2)(B) (emphasis added). Finally, to preserve these
modifications from later periodic revision by the Commission,
§ 401 expressly prohibited the Commission from altering or
repealing the legislative amendments to the acceptance-of-
responsibility reduction:
At no time may the Commission promulgate any
amendment that would alter or repeal the amendments
made by subsection (g) of this section.
Id. § 401(j)(4); see also id. § 401(g) (amending § 3E1.1(b) and
Application Note 6).
Despite that congressional command, about ten years later,
the Commission promulgated Amendment 775. That
amendment added a sentence to Application Note 6 that
limited the government’s discretion for withholding a § 3E1.1
motion:
26
The government should not withhold such a motion
based on interests not identified in § 3E1.1, such as
whether the defendant agrees to waive his or her right
to appeal.
U.S.S.G. § 3E1.1, cmt. n.6 (2013); U.S.S.G. app. C amend. 775
(effective Nov. 1, 2013). The Commission relied on legislative
silence to justify Amendment 775:
In its study of the PROTECT Act, the Commission
could discern no congressional intent to allow decisions
under § 3E1.1 to be based on interests not identified in
§ 3E1.1.
Sentencing Guidelines for United States Courts, 78 Fed. Reg.
26425, 26432 (May 6, 2013). In adding that commentary to
Note 6, the Commission did not address whether
Amendment 775 conflicted with § 401’s prohibition on
modifying U.S.S.G. § 3E1.1.
C. Amendment 775 Does Not Control § 3E1.1(b)
Motions.
Adair’s challenge to the third-point reduction rests on
Amendment 775. She argues that the government violated
Amendment 775 by withholding a § 3E1.1(b) motion for
reasons other than the timeliness of her guilty plea. If
Amendment 775 validly restricts prosecutorial discretion, then
Adair would be correct. But for three independent reasons,
Amendment 775 is not controlling.
First, Amendment 775 violates § 401(j)(4) of the
PROTECT Act, which prevents the Commission from altering
or repealing Congress’s amendments to § 3E1.1(b). The § 401
amendments identify only one circumstance in which the
government can move for the third-point reduction for
acceptance of responsibility: a defendant’s timely notice of an
intention to enter a guilty plea. See PROTECT Act
§ 401(g)(1)). But the § 401 amendments do not compel the
27
government to make such a motion under that circumstance –
or any other. See id. Thus, the § 401 amendments leave the
decision to make a § 3E1.1(b) motion to the government’s
discretion. See Drennon, 516 F.3d at 162–63.
Amendment 775 trespasses into that field of discretion by
allowing the government to withhold such a motion only when
a defendant does not give timely notice of an intention to enter
a guilty plea. See U.S.S.G. § 3E1.1, cmt. n.6; U.S.S.G. app. C
amend. 775 (effective Nov. 1, 2013). Limiting when the
government can withhold a motion to only that circumstance is
just another way of requiring the government to make a
§ 3E1.1(b) motion upon a defendant’s timely notice of an
intention to plead guilty. Because the § 401 amendments lack
such a requirement, Amendment 775 imposes an additional
condition in violation of § 401(j), which prohibits the
Commission from altering the congressional amendments. See
PROTECT Act § 404(j)(4); see also La. Pub. Serv. Comm’n v.
FCC, 476 U.S. 355, 374–75 (1986) (“To permit an agency to
expand its power in the face of a congressional limitation on
its jurisdiction would be to grant to the agency power to
override Congress.”). Accordingly, the commentary added by
Amendment 775 has no force of law and is not controlling. See
LaVallee Northside Civic Ass’n v. V.I. Coastal Zone Mgmt.
Comm’n, 866 F.2d 616, 623 (3d Cir. 1989) (“[A]n
administrative agency’s regulation that conflicts with the
parent statute is ineffective.”); see also Ball, Ball & Brosamer,
Inc. v. Reich, 24 F.3d 1447, 1450 (D.C. Cir. 1994) (“An agency
can neither adopt regulations contrary to statute nor exercise
powers not delegated to it by Congress.”).
Second, Amendment 775 exceeds the Commission’s
delegated powers. Through the commentary added by
Amendment 775, the Commission purports to govern the
discretion of a cabinet-level agency – the Department of Justice
and each of its prosecuting component agencies – with respect
to the third-point reduction for acceptance of responsibility.
Yet nothing in Congress’s delegation of “significant
discretion” to the Commission, Mistretta v. United States,
28
488 U.S. 361, 377, 379 (1989), suggests that the Commission
has power greater than the Attorney General such that it may
direct the exercise of the Department of Justice’s prosecutorial
discretion. Compare 28 U.S.C. § 994(b)(1) (directing the
Commission to develop a system of sentencing ranges “for
each category of offense involving each category of
defendant”), with 28 U.S.C. § 516 (“Except as otherwise
authorized by law, the conduct of litigation in which the United
States, an agency, or officer thereof is a party, or is interested,
and securing evidence therefor, is reserved to officers of the
Department of Justice, under the direction of the Attorney
General.”). For this reason as well, Amendment 775 has no
force of law.
Third, even overlooking its other fatal shortcomings,
Amendment 775 would still not merit controlling weight. The
Guideline that Amendment 775 attempts to interpret,
§ 3E1.1(b), is atypical because Congress, not the Commission,
authored it. Thus, Guideline § 3E1.1(b) falls outside of the
Stinson paradigm and is not a candidate for Auer deference.
Even still, Amendment 775 would not qualify for controlling
deference under any framework because the Commission did
not invoke its data-driven expertise on criminal sentencing.
Instead, Amendment 775 represents the Commission’s legal
interpretation of Guideline § 3E1.1(b). And an agency’s
application of the canons of construction does not receive
controlling deference. See SEC v. Chenery Corp., 318 U.S. 80,
94 (1943) (“[I]f the action is based upon a determination of law
as to which the reviewing authority of the courts does come
into play, an order may not stand if the agency has
misconceived the law.”); see also Kisor, 139 S. Ct. at 2417(explaining that to receive Auer deference, “the agency’s
interpretation must in some way implicate its substantive
expertise”). Because Amendment 775 is not the product of
agency subject-matter expertise, but rather the Commission’s
29
application of the traditional tools of construction,
Amendment 775 cannot receive controlling deference.27
Several of our sister circuits have nonetheless treated
Amendment 775 as controlling.28 Even apart from the reasons
above, which none of those courts contemplated, Amendment
775 cannot have any traction in this Circuit. That is so because,
before the Commission issued Amendment 775, this Court, in
United States v. Drennon, 516 F.3d 160 (3d Cir. 2008),
27
Even if an agency could receive controlling deference for its
application of the canons of construction, the Commission’s
interpretation of § 3E.1.(b) still would not merit such
deference. It drew a negative inference from legislative silence:
the absence of congressionally specified criteria for initiating
§ 3E1.1(b) motions led the Commission to infer that the sole
criterion for such a motion was timely notice of an intention to
plead guilty. See Sentencing Guidelines for United States
Courts, 78 Fed. Reg. 26425, 26432 (May 6, 2013). But reading
substance from legislative silence is at best a companion
canon; it cannot, on its own, justify an interpretation. See Cent.
Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.,
511 U.S. 164, 187 (1994); Brown v. Gardner, 513 U.S. 115,
121 (1994). And here, the Commission did not offer any other
support for its construction of Amendment 775. See
Sentencing Guidelines for United States Courts, 78 Fed. Reg.
26425, 26431–32 (May 6, 2013). Even worse, the Commission
did not account for the countervailing inference that Congress,
by not specifying any criteria for § 3E1.1(b) motions, sought
to permit government decisions based on any legitimate
interest.
28
See, e.g., United States v. Johnson, 980 F.3d 1364, 1380–81
(11th Cir. 2020); United States v. Rivera-Morales, 961 F.3d 1,
16 (1st Cir. 2020); United States v. Brockman, 924 F.3d 988,
994–95 (8th Cir. 2019); United States v. Rayyan, 885 F.3d 436,
440–41 (6th Cir. 2018); United States v. Castillo, 779 F.3d
318, 322–23 (5th Cir. 2015).
30
interpreted the PROTECT Act’s modifications to § 3E1.1(b).
In analyzing the scope of the government’s discretion in
making a motion under § 3E1.1(b), Drennon examined several
sources: the text of the amendment, the congressional
amendment to Application Note 6, and the Supreme Court’s
analysis of a textually and structurally similar guideline. See
Drennon, 516 F.3d at 161–63; see also Wade v. United States,
504 U.S. 181, 185–86 (1992) (analyzing the government’s
discretion in making a substantial-assistance motion under
Guideline § 5K1.1). From its consideration of those sources,
Drennon held that the government can withhold a § 3E1.1(b)
motion so long as it does not have an unconstitutional motive
for doing so. See Drennon, 516 F.3d at 162–63; see also id. at
162 (“The relevant text of § 3E1.1(b) tracks that of U.S.S.G.
§ 5K1.1 which requires a motion from the government before
any downward departure may be granted based upon the
defendant’s cooperation with the government.”). Because
Drennon did not rely on agency deference in interpreting the
congressionally enacted Guideline § 3E1.1(b), its construction
of that provision cannot be replaced by the Commission’s later
interpretation in Amendment 775. See United States v. Home
Concrete & Supply, LLC, 566 U.S. 478, 487 (2012) (plurality
op.) (concluding that because a prior Supreme Court case
interpreted a statute without relying on deference principles, no
different construction was “available for adoption by [an]
agency”); see also Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 982 (2005) (explaining that a
binding judicial construction of an unambiguous statute
“leaves no room for agency discretion.”). Put differently,
because an agency may not replace a controlling judicial
interpretation of an unambiguous statute with its own
construction (even if that construction is based on agency
expertise), there is no room for Amendment 775 in this Circuit.
31
D. The Record Lacks Evidence that the
Government Withheld a § 3E1.1(b) Motion
for an Unconstitutional Motive.
Because Amendment 775 has no legal force in this Circuit,
the only remaining inquiry concerns whether, by withholding
the § 3E1.1(b) motion, the government violated Drennon’s
unconstitutional-motive standard. The government acts with
unconstitutional motive when it withholds a § 3E1.1(b) motion
based on a defendant’s race, religion, or gender, or “when its
refusal to move was not rationally related to any legitimate
government end.” Drennon, 516 F.3d at 162–63 (internal
quotation marks omitted) (quoting United States v. Abuhouran,
161 F.3d 206, 212 (3d Cir. 1998)); see also Wade, 504 U.S. at185–86.
Here, Adair has no evidence, much less evidence
amounting to a “substantial threshold showing,” that the
government acted with an unconstitutional motive. Wade,
504 U.S. at 186; see also id. (explaining that “a defendant has
no right to discovery or an evidentiary hearing unless he make
a substantial threshold showing” of an improper motive
(internal quotation marks omitted)). Rather, as the government
explained, it refused to make the § 3E1.1(b) motion because
Adair caused it to have to prepare for a two-day sentencing
hearing. The government’s position reflects the additional
leverage that Congress – as a policy choice – imparted to it
through the conferral of discretion over § 3E1.1(b) motions.
But using the third-point reduction as a bargaining chip to
resolve sentencing disputes is not an unconstitutional motive,
and thus Adair cannot prevail in her effort to compel the
government to make a § 3E1.1(b) motion.
CONCLUSION
For the foregoing reasons, we will affirm the judgment of
sentence.
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