Stinson Controls Impact of Guideline Commentary, Resolves Relevant Conduct Issue

US v. Moses: Moses was convicted on two counts related to drug trafficking in 2018. He also had two prior conviction for drug distribution, which appeared to make him a career offender. Moses objected to that classification, however, arguing that one of the prior convictions, a 2013 conviction from North Carolina, was relevant conduct and therefore was not "conduct not part of the instant offense," as required to be a career offender predicate. Applying Guideline commentary, the district court rejected Moses' argument because he had been convicted and sentenced on the prior offense "well before he committed the instant offenses," and found him to be a career offender. He was sentenced to a downward variance sentence of 120 months in prison.

On appeal, the Fourth Circuit affirmed Moses' sentence. Moses argued that under the Supreme Court's recent decision in Kisor there was no deference due the Guideline commentary unless the Guideline itself was "genuinely ambiguous" and the commentary came "within that the zone of ambiguity." This provided less deference to the commentary than Stinson, which requires disregarding the commentary only if it "violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of" the Guideline in question. Given the unique nature of the Guidelines, the court concluded that Kisor did not narrow the holding of Stinson and that here, because the commentary did not violate the Constitution or a statute or contradict the Guideline itself, it was binding. The court also concluded that Moses' sentence was substantively reasonable.

Judge King dissented in part and concurred in part, noting that the court's analysis was at odds with its recent decision in Campbell and that he was "entirely persuaded of the correctness of the analysis set forth by Judge Motz" in Campbell. Nonetheless, Judge King "agree[d] with the result reached by the panel majority." Note, however, that the opinion in Moses does not purport to overrule or disagree with the holding in Campbell and, to the extent that there is a conflict Campbell, as the earlier decided case, controls.