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

FILED July 24, 2023 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 Richman, Chief Judge, and Jones, Smith, Stewart, Elrod, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, and Douglas, Circuit Judges. Stuart Kyle Duncan, Circuit Judge: †

† Ten judges join all or part of this opinion. Four join in full: Chief Judge Richman and Judges Smith, Southwick, and Engelhardt. Judges Jones and Oldham join all but Part III(C). Judges Higginson and Ho join all but Parts III(C) and III(D). Judge Willett joins all but Part III(D). Judge Wilson joins only Parts III(A) and III(D). Case: 21-20140 Document: 00516831915 Page: 2 Date Filed: 07/24/2023

No. 21-20140

Federal law imposes harsher sentences on people who commit multiple drug crimes. See U.S. Sent’g Guidelines Manual § 4B1.1(a) (U.S. Sent’g Comm’n 2018). 1 But what about conspiracies? Do people who have engaged in multiple drug conspiracies also get more prison time? That is the question before us. Our task would be easy if a statute settled the matter. No such luck: the relevant definition in the United States Sentencing Guidelines—“controlled substance offense”—does not say one way or the other whether it includes conspiracies. See § 4B1.2(b). But the official commentary says, yes, conspiracies are included. See § 4B1.2 cmt. n.1. So, the solution to our problem depends in significant measure on how much weight to give the guidelines commentary. Fortunately, the Supreme Court has told us, and the answer is: “Quite a lot.” In Stinson v. United States, 508 U.S. 36 (1993), the Court held that the guidelines commentary is “authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Id. at 38. The commentary here 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. Some of our sister circuits contend the Supreme Court replaced Stinson’s highly deferential standard with a less deferential one in Kisor v. Wilkie, 139 S. Ct. 2400 (2019). 2 Others disagree and continue to apply

1 Citations are to the United States Sentencing Guidelines unless otherwise noted. 2 See United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc); United States v. Campbell, 22 F.4th 438 (4th Cir. 2022); United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021); United States v. Castillo, 69 F.4th 648 (9th Cir. 2023); United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc).

2 Case: 21-20140