Opinion
22-3128
06-27-2023
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN DOE, Defendant-Appellant.
(D.C. No. 5:20-CR-40062-TC-1) (D. Kan.)
Before HARTZ, SEYMOUR, and MATHESON, Circuit Judges.
ORDER AND JUDGMENT [*]
SCOTT M. MATHESON, JR. CIRCUIT JUDGE
Defendant-Appellant John Doe appeals the application of a four-level enhancement to his Sentencing Guidelines offense level based on U.S.S.G. § 2K2.1(b)(6)(B). Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual History
In the early morning hours of September 26, 2019, Mr. Doe and two accomplices used a hammer to break the front window of The Gun Garage, a firearms store in Topeka, Kansas. Mr. Doe entered the store through the window and broke into a firearms display case. He removed the firearms from inside the case and passed them through the window to his accomplices. The three men stole 11 firearms and fled on foot. When later arrested, Mr. Doe told police officers that he broke into the store to steal and sell the guns.
B. Procedural History
A grand jury indicted Mr. Doe under 18 U.S.C. §§ 922(u) and 924(i)(1) for stealing firearms from a federally licensed firearms dealer. He pled guilty.
Mr. Doe's Presentence Investigation Report ("PSR") recommended a four-level enhancement to his offense level under § 2K2.1(b)(6)(B) of the United States Sentencing Guidelines ("Sentencing Guidelines" or "Guidelines"). Section 2K2.1(b)(6)(B) applies when a defendant "used or possessed any firearm . . . in connection with another felony offense." The "other felony offense" was burglary under Kansas law arising from the break-in at The Gun Garage.
Mr. Doe filed a written objection to the application of § 2K2.1(b)(6)(B). He argued that he did not possess the firearms "in connection with" the burglary because they were simply the object of the burglary. The district court overruled the objection and applied the enhancement. The court sentenced Mr. Doe to 20 months in prison, followed by two years of supervised release. This appeal followed.
Mr. Doe was released from prison during the pendency of this appeal. The supervised release term is set to expire in December 2024. This case is not moot because Mr. Doe's supervised-release term may be reduced if he succeeds on appeal. See United States v. Salazar, 987 F.3d 1248, 1252 (10th Cir. 2021) (explaining that "a defendant's unexpired term of supervised release, which could be reduced by a favorable appellate decision, is sufficient to defeat a claim of mootness" (quotations omitted)).
II. DISCUSSION
Based on this court's recent decision in United States v. Maloid, ___ F.4th ___, No. 21-1422, 2023 WL 4141073, at *7-14 (10th Cir. June 23, 2023), we affirm. The district court's application of a four-level enhancement under § 2K2.1(b)(6)(B) was not error because Application Note 14(B) to § 2K2.1(b)(6)(B)-which states that the enhancement applies when a defendant steals firearms during a burglary-is entitled to deference under Stinson v. United States, 508 U.S. 36 (1993).
A. Legal Background
1. Section 2K2.1(b)(6)(B) and Application Note 14(B)
"The [Sentencing] [G]uidelines contain three types of content: (1) guideline provisions, (2) policy statements regarding application of the guidelines, and (3) commentary, which may interpret a guideline or explain how it is to be applied, suggest circumstances which may warrant departure from the guidelines, or provide background information." United States v. Babcock, 40 F.4th 1172, 1184 (10th Cir. 2022) (quotations and alterations omitted).
The relevant Guideline provision here is § 2K2.1(b)(6)(B), which provides for a four-level enhancement to the offense level "[i]f the defendant . . . used or possessed any firearm or ammunition in connection with another felony offense."
The United States Sentencing Commission has provided commentary interpreting § 2K2.1(b)(6)(B). Application Note 14(B) states that § 2K2.1(b)(6)(B)'s four-level enhancement applies "in a case in which a defendant who, during the course of a burglary, finds and takes a firearm, even if the defendant did not engage in any other conduct with that firearm during the course of the burglary."
2. Deference to Guidelines Commentary
In Stinson, the Supreme Court held that Sentencing Guidelines commentary is authoritative unless it "violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, t[he relevant] [G]uideline." 508 U.S. at 38. The Court observed that Guidelines commentary "is akin to an agency's interpretation of its own [regulations]." Id. at 45. The Court thus drew on cases requiring deference to agencies' interpretations of their regulations-referred to as "Auer deference" or "Seminole Rock deference"-to conclude that Guidelines commentary is controlling. Id.; see United States v. Seminole Rock, 325 U.S. 410, 414 (1945); Auer v. Robbins, 519 U.S. 452 (1997).
In 2019, the Supreme Court narrowed Auer/Seminole Rock deference in Kisor v. Wilkie, 139 S.Ct. 2400 (2019). It instructed courts to consider whether (1) the regulation is "genuinely ambiguous," (2) the agency's interpretation "come[s] within the zone of ambiguity," (3) the interpretation is "'authoritative' or 'official,'" (4) the interpretation "implicate[s] [the agency's] substantive expertise," and (5) the interpretation reflects a "fair and considered judgment." Id. at 2415-17.
Kisor did not address its impact on Stinson, mentioning Stinson only in a footnote. See id. at 2411 n.3. The courts of appeals are divided on whether Kisor changed how courts should apply Stinson .
Compare United States v. Lewis, 963 F.3d 16, 24 (1st Cir. 2020), United States v. Moses, 23 F.4th 347, 349 (4th Cir. 2022), cert. denied, 143 S.Ct. 640 (2023), United States v. Vargas, 35 F.4th 936, 940 (5th Cir. 2022), reh'g en banc granted, 45 F.4th 1083 (5th Cir. 2022), and United States v. Broadway, 815 Fed.Appx. 95, 96 & n.2 (8th Cir. 2020) (unpublished) (all holding that Kisor did not definitively overrule Stinson) with United States v. Henderson, 64 F.4th 111, 119 (3d Cir. 2023), United States v. Phillips, 54 F.4th 374, 379 (6th Cir. 2022), and United States v. Dupree, 57 F.4th 1269, 1275 (11th Cir. 2023) (en banc) (all holding that Kisor overruled Stinson). Some circuits have not taken a definitive position. See United States v. Kirilyuk, 29 F.4th 1128, 1139 (9th Cir. 2022) (holding that an Application Note failed Stinson's "clearly inconsistent" test, and declining to "express a view" on whether "the narrower deference set out in Kisor v. Wilkie" should apply instead); United States v. Jenkins, 50 F.4th 1185, 1197 (D.C. Cir. 2022) (citing both Kisor and Stinson without discussing the relationship between the two).
We recently decided this issue in United States v. Maloid. We held that Kisor did not affect Stinson because (1) the Sentencing Commission is a judicial entity rather than an executive agency, and the policy concerns with deferring to agency interpretations do not extend as strongly to deferring to Commission commentary; and (2) Kisor did not address Stinson, and we are bound to follow on-point precedent until the Supreme Court or our en banc court overrules it. Maloid, 2023 WL 4141073, at *7-14. Thus, under Maloid, we must evaluate Guidelines commentary under Stinson's deferential standard.
3. United States v. Morris
In United States v. Morris, 562 F.3d 1131 (10th Cir. 2009), we held that Application Note 14(B) was entitled to deference under Stinson. Id. at 1133-36. In that case, the defendant burglarized an apartment and stole a rifle he found during the burglary. Id. at 1132. The district court, applying Application Note 14(B), imposed a four-level enhancement. Id. at 1133. Reviewing for plain error, we affirmed, finding that Application Note 14(B) controlled because it was not "inconsistent with, or a plainly erroneous reading of" § 2K2.1(b)(6)(B). Id. at 1136 (quotations omitted).
B. Application
Because Application Note 14(B) applies to Mr. Doe's crime and is entitled to deference under our precedent, we affirm.
Mr. Doe committed burglary under Kansas law by breaking into The Gun Garage and stealing guns from a display case. Application Note 14(B) states that the four-level enhancement in § 2K2.1(b)(6)(B) applies when "a defendant [], during the course of a burglary, finds and takes a firearm." Application Note 14(B) plainly describes Mr. Doe's case. Mr. Doe concedes as much in his brief.
Mr. Doe contends that Application Note 14(B) does not control because its interpretation of § 2K2.1(b)(6)(B) is entitled to no deference. He argues that Stinson was based on Auer/Seminole Rock deference, which the Court limited in Kisor, and that Application 14(B) does not pass the Kisor test.
But in Maloid, we rejected Mr. Doe's contention that Kisor affects Stinson. Maloid, 2023 WL 4141073, at *7-14. Thus, we must defer to Application Note 14(B) unless it fails the Stinson test-that is, unless 14(B) "violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, t[he relevant] [G]uideline." 508 U.S. at 38. It does not.
We applied Stinson to Application Note 14(B) in United States v. Morris. We gave the Note controlling weight because it did not violate the Constitution or a federal statute and was not "inconsistent with § 2K2.1(b)(6)." 562 F.3d at 1136. We may overrule Morris-as Mr. Doe asks us to do-only if a "subsequent Supreme Court decision contradicts or invalidates our prior analysis." United States v. Brooks, 751 F.3d 1204, 1210 (10th Cir. 2014). Such a case must "clearly overrule" our precedent. Speidell v. United States through Internal Revenue Serv., 978 F.3d 731, 738 (10th Cir. 2015). Because Kisor did not overturn Stinson, it did not "contradict or invalidate" our application of Stinson in Morris. Morris therefore controls.
In sum, under Application Note 14(B), § 2K2.1(b)(6)(B)'s four-level enhancement applies to Mr. Doe. The Note is entitled to Stinson deference. In Morris, we held the Note satisfies Stinson. The district court therefore correctly applied § 2K2.1(b)(6)(B)'s four-level enhancement to Mr. Doe's sentence.
The district court did not rely on Application Note 14(B) to conclude that Mr. Doe was subject to § 2K2.1(b)(6)(B)'s four-level enhancement. Instead, it concluded that Mr. Doe's conduct satisfied the plain language of § 2K2.1(b)(6)(B). Because we are bound to follow Maloid, we affirm on an alternative ground.
III. CONCLUSION
We affirm the district court.
[*] This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.