NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 19-2919 _____________

UNITED STATES OF AMERICA

v.

OLLIE OTIS REAVES, also known as Odie Reeves, Appellant _______________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-07-cr-104-003) District Judge: Hon. Matthew W. Brann _______________

Submitted Under Third Circuit LAR 34.1(a) April 14, 2020

Before: AMBRO, JORDAN, and SHWARTZ, Circuit Judges.

(Filed: May 11, 2021) _______________

OPINION ∗ _______________

∗ This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. JORDAN, Circuit Judge.

Ollie Reaves was found guilty of conspiracy to distribute crack cocaine, in

violation of

, in 2008. He was sentenced to life in prison. In 2019, he

was resentenced following the implementation of the First Step Act, which reduced

prison time for many crack cocaine offenders. At resentencing, Reaves argued that he

did not qualify for the career-offender enhancement because all but one of his prior

convictions were for attempt crimes, and the enhancement only applies if he had two

qualifying predicate convictions. Under the plain language of the sentencing guidelines,

he argues, attempt crimes do not qualify as controlled substance offenses for the purposes

of the career-offender enhancement. We agree, based on our recent en banc decision in

United States v. Nasir,

(3d Cir. 2020). We will therefore vacate

Reaves’s sentence and remand for resentencing.

I. BACKGROUND

The facts of Reaves’s conviction are not pertinent to the issue on appeal, so we

recite them here only briefly. Reaves led a drug distribution ring in the Harrisburg,

Pennsylvania area. In 2007, the ring distributed more than one kilo of crack cocaine.

Along with others from his distribution ring, Reaves was charged with conspiracy to

distribute crack cocaine in excess of 50 grams. He was also charged with possession of a

firearm in furtherance of drug trafficking.

Reaves pled not guilty, and after a jury trial, he was found guilty of conspiracy to

distribute crack cocaine in excess of 50 grams. The government later moved to dismiss

the firearm count. Based on the mandatory minimum sentence at the time, Reaves had a

2 base offense level of 43 and was sentenced to life in prison. He appealed his conviction,

and we affirmed. United States v. Reaves,

(3d Cir. 2011). He

also filed motions for collateral relief under

, all of which were denied.

While Reaves was in prison, Congress passed two laws that, together, reduced the

mandatory minimum for his sentence. The Fair Sentencing Act of 2010 reduced the

mandatory minimum to ten years, and the First Step Act of 2018 made the Fair

Sentencing Act retroactive. The government and Reaves agreed that a resentencing was

called for, and the District Court held that Reaves was entitled to plenary resentencing

because, at his previous sentencing, “his right to allocute before [the District Court] and

the Court’s review of the factors set for at

(a) were merely an academic

exercise due to the mandatory minimum term of life imprisonment.” Order at ECF No.

483, at 2, United States v. Reaves, No. 1:07-cr-104-003 (M.D. Pa. June 14, 2019)

(footnote omitted).

At resentencing, Reaves argued that the career-offender enhancement should not

apply to him because the offenses that served as qualifying predicates were attempt

crimes. The government responded that the District Court was bound by our decision in

United States v. Hightower,

(3d Cir. 1994), which held that courts

should defer to the definition of a “controlled substance offense” set forth in the

commentary to the sentencing guidelines. Wisely, the District Court acknowledged the

strength of Reaves’s argument but determined that it was bound by Hightower and

applied the career-offender enhancement. Reaves’s new offense level was 36, making his

3 sentencing range 360 months to life. The Court departed downward from those

guidelines and imposed a sentence of 330 months.

Reaves timely appealed.

II. DISCUSSION 1

The issue before us is a purely legal one: does the definition of “controlled

substance offense” for the career-offender enhancement in the sentencing guidelines

include inchoate crimes? Our en banc Court answered that question in Nasir, concluding

it does not.

.

When the District Court applied the career-offender enhancement to Reaves, it

was faithfully applying our precedent in Hightower,

. In that case, we held

that the commentary to the sentencing guidelines that added inchoate crimes to the

definition of controlled substance offense for purposes of the career-offender

enhancement was binding.

. We made that decision because we determined

that “the commentary’s expansion of the definition of a controlled substance offense to

include inchoate offenses is not ‘inconsistent with, or a plainly erroneous reading of’ …

the Sentencing Guidelines, and that it does not “violate[ ] the Constitution or a federal

1 The District Court had jurisdiction under

. We have appellate jurisdiction pursuant to

. We have plenary review over legal questions, including the district court’s legal interpretation of the guidelines. United States v. Wilson,

(3d Cir. 2018). 4 statute.’”

(second alteration in original) (quoting Stinson v. United States,

(1993)).

Then, in Kisor v. Wilkie,

(2019), the Supreme Court clarified the

standard we should use to determine whether to defer to an agency’s interpretation of a

regulation. That case put guardrails around the deference that should be given to agency

interpretations. It emphasized that, before deciding that a regulation is ambiguous and

thus open to interpretation, it must indeed be “genuinely ambiguous.”

; see

also

(“And when we use that term, we mean it[.]”). Deference should not be

“reflexive[,]” and should not be afforded until the court has “exhaust[ed] all the

traditional tools of construction.”

(citation and quotation marks omitted).

In light of Kisor, we reevaluated our decision in Hightower and determined that

the commentary to the guidelines is not, in fact, entitled to deference. Nasir,

. The language of the guidelines themselves controls, and since they do not

mention inchoate crimes at all, they cannot plausibly be read to include them.

at 159-

160. That is the holding of Nasir and it controls our decision here.

Although the District Court faithfully applied the law at the time of resentencing,

the law has changed. All but one of Reaves’s prior controlled substances convictions are

for attempting to distribute a controlled substance, and the guidelines require a career

5 offender to have at least two prior convictions that are non-inchoate crimes. Therefore,

Reaves does not qualify for the career-offender enhancement.

III. CONCLUSION

For the foregoing reasons, we will vacate Reaves’s sentence and remand for

resentencing.

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