Andres Vargas pled guilty to a cocaine conspiracy charge and was sentenced, over his objection, as a career offender under Guideline § 4B1.1(a). Vargas appealed, arguing that his instant and predicate charges should not count as “controlled substance offenses” despite their inclusion under application note 1 to § 4B1.2, because the plain text of the Guideline does not include inchoate offenses. As such, the application notes are not entitled to Seminole Rock/Auer deference.
Reviewing the case de novo, the Fifth Circuit affirmed the district court’s judgment. The Supreme Court’s recent decision in Kisor narrowed the scope of Seminole Rock/Auer deference, but did not explicitly discuss the Sentencing Guidelines, so it is insufficient to overturn the circuit’s precedent on that issue.
The Fifth Circuit is the most recent court to weigh-in on this issue, which has divided the appellate courts. The Second, Eighth, and Ninth Circuits have all so far taken the same approach as the Fifth did here; while the Third and Sixth Circuits have held that Kisor did indeed reduce the deference given to the Guidelines’ commentary. The Fourth Circuit has been divided within itself on the issue, with one panel maintaining deference and another rescinding it.
Appeal from the Southern District of Texas
Opinion by Wilson, joined by Smith and Costa
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