United States v. Malik Nasir (3rd Cir. December 2020), EN BANC

The Federal Docket

Sentencing Guidelines/Career Offender – Inchoate offenses are not “controlled substance offenses” for purpose of applying the career offender enhancement under 4B1.1 and 1.2, as commentary to the Guidelines is not binding when it is inconsistent with or broader than the text of the Guidelines.

Firearm Offenses/Felon in Possession – Courts considering Rehaif challenges under plain error review are limited to considering the evidence presented by the government at trial, not the whole record, and reversal is warranted when the government has not presented any evidence at trial regarding a defendant’s knowledge of their prior felony.

Malik Nasir was arrested near a storage unit where he was keeping marijuana for distribution. He was convicted of various drug offenses and being a felon in possession of a firearm. He was sentenced to 210 months as a career offender. Nasir appealed.

In a lengthy opinion, the Third Circuit came to two important conclusions regarding Nasir’s career offender sentence and his felon in possession of a firearm conviction. After affirming Nasir’s conviction under the crack house statute and rejecting his suppression argument, the Court held that the career offender Guideline should not have been applied to Nasir.

Nasir argued on appeal that the career offender Guideline under 4B1.1 did not apply to one of his prior convictions because it was an inchoate drug offense, which was not included in the list of qualifying prior convictions under 4B1.2. Nasir had been convicted under state law in 2000 for attempt to possess with intent to distribute cocaine and in 2001 for possession of marijuana and cocaine with intent to distribute.

USSG 4B1.2 defines a “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 substance) with intent to manufacture, import, export, distribute, or dispense.”

However, the commentary in the Application Notes to 4B1.2 states that “controlled substance offense” also includes attempt crimes and conspiracy crimes.

In a decision that could have significant implications, the Third Circuit held that inchoate crimes like attempt and conspiracy were not included in the definition of “controlled substance offense” under 4B1.2 because the commentary to the Guidelines are not binding and cannot substantively expand the Guidelines beyond their plain text.

Treating the issue as a matter of administrative law, wherein the Guidelines themselves are agency regulations, the Court reasoned that the commentary to the Guidelines are akin to “an agency’s interpretation of its own legislative rule.” Prior Supreme Court precedent under Auer required that sentencing courts defer to the commentary to the Guidelines unless plainly erroneous.

However, in light of the Supreme Court’s 2019 decision in Kisor v. Wilkie, where the Supreme Court “cut back on what had been understood to be uncritical and broad deference to agency interpretations of regulations,” the Third Circuit examined whether Kisor mandated a change to how courts apply the Guidelines and their commentary. The Court answered in the affirmative, concluding that Auer deference to commentary only applies when a Guideline provision is “genuinely ambiguous” and the sentencing court has exhausted “all the traditional tools of construction.” Even then, the Court explained, Auer deference to commentary is not warranted unless the commentary is reasonable and informed by the text, structure, and history of the regulation (or Guideline provision).

The Court further held that 4B1.2’s definition of controlled substance offense does not include inchoate offenses based on the plain text of the provision, and in contrast to the provision defining “crime of violence.” The Court noted that other circuits have found that 4B1.2 does not include inchoate offenses– namely the D.C. Circuit, the Sixth Circuit, and the Second Circuit (unpublished). In fact, the Sixth Circuit had similarly held that the commentary “has no independent legal force–it serves only to interpret the Guidelines’ text, not to replace or modify it.”

The Court also issued an important ruling on the firearm offense. Under Old Chief, Nasir had entered a stipulation at trial that he was a felon. Now, in light of the Supreme Court’s decision in Rehaif, the Third Circuit held that: 1) appellate court’s on plain-error review of a defendant’s Rehaif challenge are limited to the evidence presented at trial, and 2) reversal was warranted because the government’s plain error in failing to charge or prove all the essential elements of 922(g) affected Nasir’s substantial rights and seriously affected the fairness, integrity, and public reputation of judicial proceedings.” The government had not produced any evidence at trial addressing Nasir’s knowledge of his prior felony or criminal history.

Judge Bibas concurred, stressing that courts should not defer to the commentary of the Guidelines when there is conflict with the Guidelines’ explicit text. Judge Bibas called for courts to “look at things afresh” regarding the weight previously given to Guidelines commentary.

Judge Matey concurred, describing the issue under Rehaif as implicating a defendant’s Fifth and Sixth Amendment right to a jury trial on all the elements of his or her charged offense. Judge Matey also criticized the mainstream application of the plain error standard.

In an aggressive dissent, Judge Porter and several other judges issued an opinion concurring in part and dissenting, particularly to the majority’s holding on plain error review. Judge Porter argued that the majority’s holding foreclosing courts from considering the whole record was “profoundly mistaken” and that Nasir could not satisfy the plain error standard because the record outside of trial established his knowledge and that remaining for a new trial would undermine the fairness and public reputation of judicial proceedings.

Appeal from the District of Delaware

Opinion by Jordan

Concurring opinion by Bibas

Concurring opinion by Matey

Partial Dissent by Porter

Click here to read the opinion

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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