Commentary in Career Offender Guidelines: Circuit Split

Vargas argued that an inchoate offense such as conspiracy does not qualify as a “controlled substance offense” as defined by the Guidelines.

Vargas' Argument in District and Fifth Circuit Court

Vargas pled guilty to conspiracy to possess with intent to distribute cocaine. The probation officer determined that Vargas was a career offender under U.S.S.G. 4B1.1(a) for his prior convictions of possession with intent to distribute methamphetamine and conspiracy to possess with intent to manufacture methamphetamine.

Vargas objected to the career offender enhancement before the district court. The court overruled his objection and sentenced him to 188 months imprisonment. On appeal before the Fifth Circuit, Vargas argued an inchoate offense such as conspiracy does not qualify as a “controlled substance offense” as defined by the Guidelines. 

U.S.S.G. 4B1.2 defines a controlled substance offense 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.” Application Note 1 of the commentary to 4B1.2(b) states that a “controlled substance offense” also includes “the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.”

Vargas’ argument on appeal was that the Guidelines commentary are not controlling and inchoate offenses such as conspiracy do not qualify as “controlled substance offenses” for career offender purposes. This is an argument that has created a substantial split among circuit courts in recent years.

In 1997, the Fifth Circuit held in United States v. Lightborn, 115 F.3d 291 (5th Cir. 1997), that the career offender enhancement includes inchoate offenses. Lightborn has remained controlling in the Fifth Circuit. Notably, this panel indicated that if it “were writing from a blank slate, we might well agree with Vargas’s argument . . . regarding the deference owed to the Guidelines commentary.” Nonetheless, the panel found it was bound by prior precedent and declined to overrule its precedent holding 4B1.1’s career offender enhancement includes inchoate offenses like conspiracy. Accordingly, the Fifth Circuit affirmed judgment of the district court.

Notably, the circuit courts are split on this issue. The Third, Sixth and Fourth Circuits have held that the commentary to the Guidelines are not binding, thus excluding inchoate offenses from being considered career offender predicates. 

Jeremy's Takeaway

The panel’s decision here is certainly not good news for career offenders in the Fifth Circuit. But as this circuit split deepens we may actually see the Supreme Court finally weigh in on just how much deference should be given to the Guidelines’ commentary.