Opinion
20-30043
09-08-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AYO KEITH HOGUE, Defendant-Appellant.
NOT FOR PUBLICATION
Argued and Submitted February 7, 2022
Appeal from the United States District Court for the District of Oregon, No. 3:19-cr-00242-MO-1, Michael W. Mosman, District Judge, Presiding
Before: PAEZ and NGUYEN, Circuit Judges, and TUNHEIM, [**] District Judge.
MEMORANDUM [*]
Ayo Hogue appeals his sentence for attempted bank robbery in violation of 18 U.S.C. § 2113(a). He contends that the district court erred in determining that § 2113(a) is a "crime of violence" under Sentencing Guidelines § 4B1.2(a), thereby increasing his sentencing exposure as a career offender under § 4B1.1. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. Reviewing the district court's determination that Hogue is a career offender for plain error, see United States v. Charles, 581 F.3d 927, 932 (9th Cir. 2009), we affirm.
Hogue acknowledges that he did not raise this issue in the district court.
Because we affirm Hogue's sentence, we need not address the government's argument that he waived his right to appeal. See United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc) (holding that appellate waivers do not affect appellate jurisdiction); cf. Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (explaining that procedural bars to an appeal "are not infrequently more complex than the merits issues . . ., so it may well make sense in some instances to proceed to the merits if the result will be the same").
The Sentencing Guidelines define "crime of violence" to include generic federal robbery, see U.S. Sent'g Guidelines Manual § 4B1.2(a)(2) (U.S. Sent'g Comm'n 2021); United States v. Prigan, 8 F.4th 1115, 1120 (9th Cir. 2021), and Hogue concedes that completed bank robbery under § 2113(a) matches generic federal robbery. Application Note 1 to § 4B1.2 provides that crimes of violence "include the offenses of . . . attempting to commit such offenses."
Hogue argues that we should give no deference to Application Note 1 because its inclusion of inchoate offenses is inconsistent with the text of § 4B1.2. See Stinson v. United States, 508 U.S. 36, 45 (1993) (holding that Guidelines commentary "must be given 'controlling weight unless it is plainly erroneous or inconsistent with the [Guidelines].'" (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945))); see also Kisor v. Wilkie, 139 S.Ct. 2400, 2414 (2019) (cautioning courts not to apply a presumption of deference to an agency's interpretation of its own rule if the rule is not "genuinely ambiguous" after "resort[ing] to all the standard tools of interpretation" or if "the reasons for that presumption do not apply, or countervailing reasons outweigh them").
Our precedent forecloses Hogue's argument. See United States v. Crum, 934 F.3d 963, 966 (9th Cir. 2019) ("Application Note 1 of § 4B1.2 is 'perfectly consistent' with the text of § 4B1.2(b)." (quoting United States v. Vea-Gonzales, 999 F.2d 1326, 1330 (9th Cir. 1993))). To the extent Hogue argues that Kisor changed the law, Crum subsequently reaffirmed the validity of Application Note 1, and the district court did not plainly err by relying on the Guidelines commentary.
AFFIRMED.
Paez, J., concurring:
I agree with the majority opinion that United States v. Crum, 934 F.3d 963 (9th Cir. 2019) (per curiam), dictates affirmance. I write separately, however, to highlight the troubling nature of our circuit's precedents on this issue.
None of this court's opinions evaluating Application Note 1 have considered whether the Supreme Court's decision in Kisor v. Wilkie, 139 S.Ct. 2400 (2019), clarified the rule laid out in Stinson v. United States, 508 U.S. 36 (1993). Hogue argues that after Kisor, we may only defer to the commentary if a Guideline is "genuinely ambiguous, even after a court as resorted to all the standard tools of interpretation." Kisor, 139 S.Ct. at 2414. I find this to be a compelling argument, and at least two circuits agree. See United States v. Campbell, 22 F.4th 438, 449 (4th Cir. 2022); United States v. Nasir, 17 F.4th 459, 472 (3d Cir. 2021) (en banc); United States v. Riccardi, 989 F.3d 476, 485 (6th Cir. 2021). Crum did not expressly address this argument, nor has any panel since. I believe that this court must reconsider our case law in this area in light of these developments and decide the question whether Kisor has changed the circumstances under which we defer to the commentary.
Moreover, I continue to believe that the commentary cannot and should not be used to increase the scope of the Guidelines text. As the Crum majority noted and as I wrote in my concurrence in United States v. Sorenson, this is an impermissible exercise of the Sentencing Commission's power, allowing it to expand the reach of the Guidelines while circumventing congressional review and approval. Sorenson, 818 Fed.Appx. 668, 670 (9th Cir. 2020) (Paez, J., concurring); see also Crum, 934 F.3d at 966. Application Note 1 is a particularly concerning example of this phenomenon, since it "increase[s] the sentencing ranges for numerous defendants." Crum, 934 F.3d at 966. Indeed, Hogue's guideline range increased from 41-51 months to 120-150 months because of the application of the career offender guideline. I continue to believe that this court should go en banc to reject this practice and prevent such unwarranted expansions. See Sorenson, 818 Fed.Appx. at 670 (Paez, J., concurring).
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, sitting by designation.