Case: 21-20140     Document: 00516337033        Page: 1   Date Filed: 05/31/2022




           United States Court of Appeals
                for the Fifth Circuit                            United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                                                    May 31, 2022
                                 No. 21-20140
                                                                   Lyle W. Cayce
                                                                        Clerk
   United States of America,

                                                          Plaintiff—Appellee,

                                     versus

   Andres Vargas,

                                                       Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:20-CR-80-1


   Before Smith, Costa, and Wilson, Circuit Judges.
   Cory T. Wilson, Circuit Judge:
         Andres Vargas pled guilty to conspiracy to possess with intent to
   distribute 500 grams or more of cocaine, in violation of 

,
   841(a)(1) and (b)(1)(B). The probation officer determined that Vargas was a
   career offender under § 4B1.1(a) of the United States Sentencing Guidelines
   because the instant offense, as well as Vargas’s prior convictions for
   possession with intent to distribute amphetamine and conspiracy to possess
   with intent to manufacture and distribute methamphetamine, qualified as
   controlled substance offenses.    The district court overruled Vargas’s
   objection to the career-offender enhancement and sentenced him to 188
Case: 21-20140      Document: 00516337033          Page: 2     Date Filed: 05/31/2022




                                    No. 21-20140


   months of imprisonment, followed by four years of supervised release.
   Vargas timely appealed.
          A defendant qualifies as a career offender under U.S.S.G. § 4B1.1(a)
   if, inter alia, the instant offense is a felony controlled substance offense and
   “the defendant has at least two prior felony convictions of . . . a controlled
   substance offense.” A “controlled substance offense” is defined 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 the possession of
   a controlled substance . . . with intent to manufacture, import, export,
   distribute, or dispense.” U.S.S.G. § 4B1.2(b). Application Note 1 of the
   commentary to § 4B1.2 explains that a “controlled substance offense” also
   “include[s] the offenses of aiding and abetting, conspiring, and attempting to
   commit such offenses.” Id. § 4B1.2 cmt. n.1 (emphasis added).
          Vargas asserts that the district court erred in treating his instant and
   prior conspiracy convictions as controlled substance offenses because
   inchoate offenses do not qualify for the career offender enhancement under
   the plain text of the Guidelines.          He contends that the Guidelines
   commentary, which purports to include inchoate offenses, is not entitled to
   deference. Because Vargas preserved his objection, “we review the district
   court’s interpretation and application of the Guidelines de novo.” United
   States v. Garza-Lopez, 

 (5th Cir. 2005).
          In United States v. Lightbourn, 

 (5th Cir. 1997), we held
   that § 4B1.1’s career-offender enhancement lawfully includes inchoate
   offenses, id. at 293. Since Lightbourn, several panels of this court have
   deemed it controlling on questions materially indistinguishable from
   Vargas’s. E.g., United States v. Kendrick, 

 (5th Cir. 2020);
   see also United States v. Duke, 

, 772 (5th Cir. 2021); United




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                                         No. 21-20140


   States v. Mack, 

, 803 (5th Cir. 2021); United States v. Goodin,
   

, 782 & n.1 (5th Cir. 2021). Consequently, Vargas’s
   argument is foreclosed by Lightbourn “absent an intervening change in law,
   such as by statutory amendment, or the Supreme Court, or our en banc
   court.” United States v. Petras, 

 (5th Cir. 2018) (internal
   quotation marks and citation omitted).
           Vargas asserts that, even if Lightbourn was previously binding for the
   proposition that § 4B1.2’s inchoate-offense commentary is subject to
   deference, that is no longer the case because Kisor v. Wilkie, 

   (2019), fundamentally altered the deference afforded to the Guidelines
   commentary under Stinson v. United States, 

 (1993). 1 “But for a
   Supreme Court decision to override a Fifth Circuit case, the decision must
   ‘unequivocally overrule prior precedent.’” Petras, 

 (quoting
   Frazin v. Haynes & Boone, L.L.P. (In re Frazin), 

 (5th Cir.
   2013)). A mere “hint” from the Court as to how it might rule in the future
   is not enough to circumvent our rule of orderliness and disregard our circuit
   precedent. United States v. Alcantar, 

 (5th Cir. 2013). If it
   were, then “judges would have too much leeway to invalidate caselaw they
   did not like in the first place.” United States v. Longoria, 

   (5th Cir. 2020).
           In Stinson, the Court considered whether and when the Sentencing
   Commission’s commentary to the Guidelines should be given binding
   interpretive effect. 508 U.S. at 42–45. The Court found the commentary
   “akin to an agency’s interpretation of its own legislative rules” and,


           1
             We have repeatedly rejected such an argument on plain-error review. See United
   States v. Cruz-Flores, 

, 246 (5th Cir. 2020) (rejecting argument that Kisor
   narrowed the deference afforded to U.S.S.G. § 2L1.2’s commentary); United States v.
   Vivar-Lopez, 

, 301 (5th Cir. 2019) (same).




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                                         No. 21-20140


   therefore, relied on Seminole Rock/Auer 2 deference. 

. Applying that
   standard, the Court held “that commentary in the Guidelines Manual that
   interprets or explains a [G]uideline is authoritative unless it violates the
   Constitution or a federal statute, or is inconsistent with, or a plainly
   erroneous reading of, that [G]uideline.” 

.
           Twenty-six years after Stinson, the Court decided Kisor, a case
   involving an administrative court’s interpretation of a regulation
   promulgated by the Department of Veterans Affairs. 

.
   Rather than abandon Seminole Rock/Auer deference altogether, as Kisor’s
   four-justice concurrence would have done, the Court took “the opportunity
   to restate, and somewhat expand on, [the doctrine] to clear up some mixed
   messages [prior decisions had] sent.” 

. The Court clarified that
   Seminole Rock/Auer deference does not apply “unless the regulation is
   genuinely ambiguous.” 

. “And before concluding that a rule is
   genuinely ambiguous, a court must exhaust all the ‘traditional tools’ of
   construction,” including careful consideration of “the text, structure,
   history, and purpose of a regulation.” 

 If these steps are taken and
   “genuine ambiguity remains, . . . the agency’s reading must still be
   ‘reasonable.’” 

 (quoting Thomas Jefferson Univ. v. Shalala, 

 (1994)).
           As noted above, in the years between Stinson and Kisor, this court held
   that “[t]he Sentencing Commission . . . lawfully included drug conspiracies
   in the category of crimes triggering classification as a career offender under
   § 4B1.1.” Lightbourn, 

. Though Lightbourn did not cite


           2
            Auer v. Robbins, 

 (1997); Bowles v. Seminole Rock & Sand Co., 

 (1945). Of course, Stinson only cited Seminole Rock because Stinson predated Auer. But
   post-Auer, both the Supreme Court and lower courts have referred to Seminole Rock/Auer
   deference.




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                                          No. 21-20140


   Stinson or otherwise expressly defer to the Guidelines commentary, its
   holding implied deference to § 4B1.2’s Application Note 1 (i.e., the sole
   source of authority for including inchoate offenses). See Newman v. Plains All
   Am. Pipeline, L.P., 

, 400 n.28 (5th Cir. 2022) (“The rule of
   orderliness applies as equally to a panel’s implicit reasoning as it does to its
   express holdings.”).         And we have since rendered any implication of
   deference in Lightbourn explicit. Kendrick, 

 (clarifying that
   Lightbourn’s holding is predicated on the commentary to § 4B1.2).
           If we were writing on a blank slate, we might well agree with Vargas’s
   argument that Kisor changed Stinson’s calculus regarding the deference owed
   to the Guidelines commentary. 3 But Kisor “does not contain the unequivocal
   override needed to get past our precedent.” Longoria, 

. While
   Kisor cabined the scope of Seminole Rock/Auer deference, Kisor did not
   discuss the Sentencing Guidelines or Stinson, which instructed that the



           3
             We acknowledge, as prior panels have, the divergence among our sister circuits
   over this issue. See United States v. Cordova-Lopez, No. 21-40426, --- F.4th ----, 

, at *1 (5th Cir. May 18, 2022) (acknowledging circuit split over Kisor’s effect on
   deference owed to the Guidelines commentary); Goodin, 835 F. App’x at 782 n.1 (same).
   The Third and Sixth Circuits, and one Fourth Circuit panel, have held that Kisor receded
   from the deference previously afforded to the Guidelines commentary under Stinson.
   United States v. Campbell, 

, 444–45, 447 (4th Cir. 2022); United States v. Nasir,
   

, 471–72 (3d Cir. 2021) (en banc) (overruling precedent deferring to § 4B1.2’s
   commentary under Stinson); United States v. Riccardi, 

 (6th Cir. 2021).
   But a different Fourth Circuit panel has held that Kisor “does not apply to the Sentencing
   Commission’s official commentary.” United States v. Moses, 

, 356–57 (4th Cir.
   2022). And panels of the Eighth and Ninth Circuits, albeit in unpublished opinions, have
   rejected arguments that Kisor provides a vehicle for reexamining deference to the
   commentary. United States v. Pratt, No. 20-10328, 

, at *2 (9th Cir. Dec.
   15, 2021); United States v. Broadway, 

, 96 & n.2 (8th Cir. 2020). Finally,
   while not affirmatively taking a position on the issue, the Second Circuit has continued
   post-Kisor to defer to § 4B1.2’s commentary under Stinson. See, e.g., United States v.
   Richardson, 

, 154–55 (2d Cir. 2020); United States v. Tabb, 

 (2d
   Cir. 2020).




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                                    No. 21-20140


   commentary is authoritative unless it “violate[s] the Constitution or a federal
   statute,” or “is plainly erroneous or inconsistent with the [Guidelines].”
   Stinson, 

. That missing link explains why panels of this court
   have continued to afford deference to the Guidelines commentary under
   Stinson, even after Kisor. See United States v. Lagos, 

 (5th
   Cir. 2022); United States v. Abrego, 

, 312–13 (5th Cir. 2021);
   Longoria, 

. And it is why we cannot say here that Kisor
   unequivocally overruled our precedent holding that § 4B1.1’s career-
   offender enhancement includes inchoate offenses like conspiracy. See Petras,
   

 (explaining the Supreme Court’s “mere illumination of a case
   is insufficient” to overcome our rule of orderliness).
          Accordingly, the district court’s judgment is
                                                                  AFFIRMED.




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