The laws and guidelines governing federal sentencing have two things in common: uncertainty and complexity. This was made clear last July 24, 2023, when the Fifth Circuit Court of Appeals decided United States v. Vargas. The en banc court dealt with this singular issue: should criminal defendants engaged in multiple drug conspiracies be subject to more prison time than defendants who commit multiple drug crimes?


U.S. Sentencing Guideline § 4B1.1 allows for career criminal offenders to be subjected to enhanced prison sentences based on prior convictions involving violence or controlled substances. 


Andres Vargas pled guilty to conspiring to possess cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B). A sentence in the range of 100 to 125 months in prison would typically have been the sentence imposed on Vargas. 


However, Vargas had two prior convictions: 1) possessing amphetamine with intent to distribute it and 2) conspiring to possess methamphetamine with intent to manufacture and distribute it. These two prior convictions under § 4B1.1 subjected Vargas to a sentence in the higher range of 188 to 235 months in prison.


Prior to sentencing, Vargas’s attorney challenged the two prior drug conspiracy convictions as not falling under the definition of “controlled substance offense” under § 4B1.1(b). The district court rejected the argument, sentencing Vargas to the lowest range of punishment under § 4B1.1, followed by four years of supervised release.


Vargas appealed to the Fifth Circuit. The case put the appeals court in the middle of a dilemma. First, the court noted that Guideline § 4B1.2(b) defines “controlled substance offense” and does not include drug conspiracies. The only guide is that the commentary of § 4B1.2(b) says that drug conspiracies fall within the ambit of § 4B1.1. The question then was whether the commentary carried the same legal weight as the guideline itself.


At first glance, this is an easy issue to resolve. The U.S. Supreme Court, in 1993, handed down Stinson v. United States, which said that the commentary of a guideline is “authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” And the Fifth Circuit observed that the commentary in § 4B1.2(b) “has none of those flaws. In particular, the commentary is not ‘inconsistent with’ the Guideline merely because it mentions conspiracies and the Guideline’s definition does not. So, Stinson requires us to follow the commentary.”


But the horn of dilemma facing the Fifth Circuit in Vargas was this: five other courts of appeals—third, fourth, sixth, ninth, and eleventh—had issued decisions that Stinson had been replaced by a more recent Supreme Court decision, Kisor v. Wilkie, which seem to suggest that courts should pay lower deference to the commentaries in the sentencing guidelines. However, four of the remaining five circuits—first, second, seventh, and tenth—continued to apply Stinson’s higher deferential approach to the commentaries as the controlling authority.


The Fifth Circuit joined the second group of sister circuits. The Vargas court explained why:


“… We agree with the second group. Stinson sets out a deference doctrine distinct from the one refined by Kisor. Until the Supreme Court overrules Stinson, then, our duty as an inferior court is to apply it faithfully.


“But even if we are wrong, and Kisor did alter Stinson, we would reach the same conclusion. That is because applying the traditional tools of construction—text, structure, history, and purpose—shows that the commentary reasonably reads ‘controlled substance offense’ to include conspiracies … So, even under Kisor’s less deferential approach, we would still defer to the commentary.”


The Fifth Circuit spelled out the complexity of the issue raised in Vargas in one paragraph:


“Ending this section where we began, we again state that it is our duty to follow squarely applicable Supreme Court precedent. Stinson is that. Distilled to its essence, Vargas’s contention is that Kisor undermined Stinson’s foundations because Stinson built on Seminole Rock. Whether that is true, though, is the Supreme Court’s business and not ours. Perhaps Kisor is the coming-soon trailer for a rethinking of Stinson. Or perhaps the Sentencing Commission’s unique nature and role warrant a distinct deference doctrine untouched by Kisor. We express no view on the matter. Our job, as an inferior court, is to adhere strictly to Supreme Court precedent, whether or not we think a precedent’s best days are behind it.”


Given the deepening split among the circuits on this significant sentencing issue, the Supreme Court will once again—this time in more explicit terms—be called upon to determine the degree of deference the lower courts must pay to the commentaries in the Federal Sentencing Guidelines. 


And this will go beyond drug offenses. 


For example, Guideline § 2B1.1 deals with financial “loss” in white-collar crimes, such as fraud and other economic offenses, but does not define the term “loss.” However, the commentary of the Guideline includes “actual loss” and “intended loss” as sentencing factors. 


In a non-precedential decision relying on Kisor, the Third Circuit has said that loss only entails a victim’s actual loss—not the commentary intended loss, which is an amount that is generally more than the actual loss.


That is precisely why the Supreme Court must resolve this conflict between the Guidelines and the Commentaries.