United States of America v. Malik Nasir

Philadelphia, PA - Criminal defense lawyer represented defendant with

possession of marijuana with intent to distribute and felon in possession of a firearm charges.

On December 21, 2015, the owner of a storage facility

in Dover, Delaware reported to the police suspicious activity at

one of the storage units, number C69. The owner asked the

police to visit the storage facility to discuss what he believed

to be "drug occurrences” on his property. (App. at 90.) When

the police arrived, he told them that, over the past several

months, someone had visited that unit frequently, as often as

five times a day. Each time, the man – whom he identified as

Nasir – would enter the storage unit and close the door behind

him. Shortly thereafter, he would reemerge and leave the

facility. Concerned about illegal activity, the owner had taken

a photograph of the inside of the unit, which he showed the

officers. It revealed two large coolers, two closed buckets, a

box of baggies, a large bag, and an aerosol spray can. The

owner provided a copy of a rental agreement signed by Nasir

and a photocopy of Nasir's driver's license. The rental

agreement listed Nasir's storage unit as C43, not C69, but the

police apparently did not notice that discrepancy.2



No. 20-1522, 2021 WL 4507560 (U.S. Oct. 4, 2021). This is

our decision on remand. The sentencing-enhancement ruling

reflects the decision of the Court en banc. The remaining

issues are the decision of the original panel, consisting of

Judges Jordan, Scirica, and Rendell.

2

Nasir had initially agreed to rent unit C43, but soon

after transferred to unit C69.

6

Following up on the information provided by the

facility owner, the police ran a criminal history check on Nasir

and learned that he had a criminal record that included felony

drug convictions. They visited unit C69 with a drug detection

dog, and the dog positively alerted to the presence of drugs

there. Based on the accumulated evidence, the detectives

applied for a search warrant for that unit.

While awaiting the warrant, several police officers

remained at the storage unit, and one surveilled Nasir's home.

The officer at the home saw Nasir place a large black bag in

the back of a Mercury Mariner SUV and drive in the direction

of the storage facility. Nasir in fact went to the facility, and,

when he arrived, the officers stopped him as he entered the row

of units including numbers C69 and C43. After handcuffing

him and putting him in the back of a patrol car, they searched

his SUV, where they found a black duffle bag and a key to unit

C69.

That same night, a search warrant issued and was

executed. In unit C69, the police found more than three

kilograms of marijuana, as well as scales and packaging

materials. The next day, they applied for and received a search

warrant for Nasir's home and any vehicles on the property.

While executing the warrant, the officers found $5,000 in cash

in a grocery bag in the house and several handguns with

ammunition in a Dodge Charger parked on the property.

Nasir was indicted for violating 21 U.S.C. § 856(a)(1),

part of what is commonly known as the crack house statute

(Count One), and was also charged under

21 U.S.C. §§ 841(a)(1) and (b)(1)(D) for possession of

marijuana with intent to distribute (Count Two), and under 18

7

U.S.C. §§ 922(g)(1) and 924(a)(2) as a felon in possession of a

firearm (Count Three). He moved to suppress the evidence

obtained from the searches of the storage unit, his house, and

his vehicles. The District Court held hearings on that motion

and denied it. Later, at trial, the jury convicted him on all three

counts of the indictment.

After the trial, Nasir filed a motion to set aside the

verdict and a motion for a new trial, both of which were denied.

The District Court sentenced him to 210 months of

imprisonment and three years of supervised release, having

determined that he qualified as a career offender under the

guidelines because of two earlier convictions in Virginia, one

from the year 2000 for attempting to possess cocaine with

intent to distribute and one from 2001 for possession of cocaine

and marijuana. This appeal followed.

II. DISCUSSION3



This appeal now presents four issues.4

First, Nasir says

that there was insufficient evidence to sustain his conviction

3

The District Court had jurisdiction under 18 U.S.C.

§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742.

4

As noted earlier, supra n.1, Nasir had also argued that,

under Rehaif, 139 S. Ct. at 2194, to sustain a conviction under

18 U.S.C. § 922(g), the government had to prove he knew he

was a felon, that it had failed to do so, and that it was plain

error for him to be convicted in the absence of such proof. That

line of argument was struck down by the Supreme Court in

Greer, 141 S. Ct. at 2096, and requires no further discussion.

8

under the crack house statute because the section of the statute

under which he was convicted does not make it unlawful to

store drugs. Second, he argues that the officer who searched

the Mercury Mariner did not have probable cause to justify that

search, so the evidence found there should have been

suppressed. Third, he contends that a member of his jury was

avowedly partial, so seating her deprived him of a fair trial.

Fourth, he asserts that the career-offender enhancement under

the guidelines should not have factored into his sentencing

because one of his prior felony convictions does not qualify as

a "controlled substance offense,” as that term is defined in the

guidelines.



We will affirm the District Court's denial of Nasir's motion for

acquittal as to Counts 1 and 2 and accordingly affirm those

convictions. In doing so, we reject Nasir's first three

arguments. However, we agree that he does not qualify for the

career-offender enhancement and must be resentenced.

A. The Crack House Conviction

Nasir first challenges his conviction under the crack

house statute, specifically 21 U.S.C. § 856(a)(1), which makes

The judgment order we enter today accordingly reflects that all

of Nasir's convictions, including his conviction under

§ 922(g), are affirmed. Because the Supreme Court vacated

our earlier judgment in its entirety, however, we reiterate our

analysis of the four issues that were not implicated by Greer,

and our judgment order will also reflect the conclusions we

repeat here.

9

it unlawful to "knowingly ... lease, rent, use, or maintain any

place ... for the purpose of manufacturing, distributing, or

using any controlled substance.” Despite the breadth of that

language, Nasir argues that his conviction should be reversed

because, he says, that subsection was not meant to cover

storage.5

Nasir did not preserve that argument in the District

Court, so we review the denial of his motion for judgment of

acquittal for plain error.6

United States v. Olano, 507 U.S. 725,

731 (1993). We will reverse for plain error only if there was

an actual error that is plain, that affects "the outcome of the

district court proceedings,” and that "seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.”

Id. at 734-36 (citations and internal quotation marks omitted)

(alteration in original).

5

Nasir does not argue that 21 U.S.C. § 856(a)(1) does

not cover storage units; instead, he says that it does not cover

the activity of storing. The distinction he attempts to draw is

irrelevant here because, as we will explain, there was ample

evidence to support the finding that Nasir was not merely

storing drugs, he was distributing drugs from a rented place.

6

Nasir claims he preserved his position when he raised

a sufficiency-of-the-evidence challenge. At trial, Nasir's

attorney said, "[s]uccinctly, it's our position that the

government has not proved Mr. Nasir in possession of either

the firearms or the marijuana.” (App. at 549.) But counsel's

generic statement, which made no reference to 21 U.S.C.

§ 856, was not sufficient to preserve a claim of error on this

issue.

10

Nasir's argument rests on the contrast between

subsection (a)(1) of the crack house statute, which he was

convicted of violating, and subsection (a)(2), under which he

was not charged. That latter subsection declares it unlawful to

"manage or control any place, whether permanently or

temporarily, ... and knowingly and intentionally rent, lease,

profit from, or make available for use, with or without

compensation, the place for the purpose of unlawfully

manufacturing, storing, distributing, or using a controlled

substance.” 21 U.S.C. § 856(a)(2) (emphasis added).

According to Nasir, because "storing” is listed as a

prohibited activity in subsection (a)(2) but is not mentioned in

subsection (a)(1), it was intentionally excluded from (a)(1). By

his lights, since he was storing illegal drugs, he should be safe

from conviction under (a)(1). But even if we were inclined to

accept that subsection (a)(1) does not cover storage, that does

not help Nasir. No sensible reading of the statute allows one

to distribute drugs just because one is also storing them.

Within unit C69, besides the drugs themselves, there was drug

distribution paraphernalia, namely scales and packaging

materials such as food storage bags. In addition to that

evidence, there was the testimony of the facility owner about

Nasir's frequent and suspicious trips to the unit. Subsection

(a)(1) expressly prohibits "distributing” a controlled substance

from any rented place, and the jury was presented with more

than ample evidence that Nasir was doing just that. The

District Court properly instructed the jury that it could find

Nasir guilty of violating section 856(a)(1) if he used a "place

for the purpose of manufacturing, distributing, or using any

controlled substance.” (App. at 615 (emphasis added).) There

was thus an obvious and legitimate basis for his conviction

under the crack house statute, and the District Court's denial of

11

Nasir's motion for a judgment of acquittal was not error at all,

let alone plain error.

B. The Motion to Suppress Evidence from the

SUV

Nasir also appeals the denial of his motion to suppress

the evidence retrieved in the search of his Mercury Mariner

SUV. He repeats the argument he made in the District Court,

saying that the officer who searched the SUV lacked probable

cause. We review de novo whether there was probable cause

to justify police action. United States v. Vasquez-Algarin, 821

F.3d 467, 471 (3d Cir. 2016).

The legal theories offered in opposition to and support

of the SUV search have morphed over time. They began with

Nasir objecting to the search as the proverbial fruit of the

poisonous tree. He said the "[p]olice did not have cause to

arrest [him] at the time he arrived at the storage facility parking

lot and accordingly all statements made by him and any

evidence found subsequent to his arrest should be suppressed.”

(App. at 47.) In responding to that motion, the government

said that the search of the SUV "was a lawful search incident

to a valid arrest pursuant to Arizona v. Gant, 556 U.S. 332

(2009).” (App. at 60 n.21.) The government also stated that,

at the suppression hearing, it "would present evidence that the

search ... was a valid inventory search[,]” although apparently

it did not do so. (App. at 60 n.21.) In his post-hearing rebuttal

briefing before the District Court, Nasir argued that the search

of the SUV was unlawful as a search incident to arrest and as

an inventory search. The District Court ultimately classified

the search as being incident to Nasir's arrest but noted that,

even if the search had occurred prior to the arrest, "the search

12

of the vehicle appears to have been within the scope of the

automobile exception” to the warrant requirement of the

Fourth Amendment. (App. at 21 n.4 (citations omitted).)

On appeal, Nasir simply asserts, without specifying the

legal framework for analysis, that there was no probable cause

to search the SUV.7

We conclude that the District Court

correctly approached the issue as being a search incident to

arrest. Even when, like Nasir, an arrestee is detained and not

within reach of his vehicle, the police may conduct "a search

incident to a lawful arrest when it is reasonable to believe

evidence relevant to the crime of arrest might be found in the

vehicle.” Gant, 556 U.S. at 343 (citation and internal quotation

marks omitted). Whether viewed as a question of probable

cause to arrest Nasir or probable cause to search the SUV under

the automobile exception, however, the pertinent facts and the

outcome are the same.

In challenging the search of the SUV, Nasir says that

the evidence uncovered in that vehicle – a black duffle bag and

the key to unit C69 – should have been suppressed because the

investigating officers did not corroborate the tip from the

storage facility owner. Nasir characterizes the owner as an

unknown and unreliable informant, and he lays particular

emphasis on the incorrect unit number on the rental agreement

the owner provided to the police. Nasir also argues that the

7

Although Nasir pointed out in his briefing that the

arresting officer said he "[b]asically ... looked at [the search]

as an inventory search,” (App. at 138,) that does not appear to

have been the theory that the government pursued before the

District Court or now pursues on appeal.

13

District Court impermissibly attributed information known

only to officers not present at the search to the officer who

actually conducted the search. His arguments are

unpersuasive.

When the police receive information from an informant

for the first time, they have a duty to independently corroborate

at least some of the information the informant provides. See

Illinois v. Gates, 462 U.S. 213, 242 (1983) ("[A]n officer may

rely upon information received through an informant, rather

than upon his direct observations, so long as the informant's

statement is reasonably corroborated by other matters within

the officer's knowledge.” (citation and internal quotation

marks omitted)). They discharged that duty in this case. The

arresting officers personally knew the following at the time of

the arrest and related search of the vehicle: according to a

background check, Nasir had a history of drug dealing; the

owner of the storage facility had reported Nasir engaged in

suspicious activity at unit C69, including making numerous

trips to the storage unit, sometimes several in a day; the owner

had taken a photograph that showed items in the unit consistent

with drug distribution; an officer had seen Nasir put a bag in

the back of his car and drive toward the storage facility; and a

narcotics dog had positively alerted to drugs at unit C69.

Given the totality of those circumstances known to the

officers who arrested Nasir, there was certainly probable cause,

reasonably corroborated, for Nasir's arrest, and it was

reasonable to believe that evidence of his drug dealing would

14

be found in the SUV.8

We will therefore affirm the District

Court's denial of Nasir's motion to suppress.

C. The Ruling on Alleged Juror Bias

Nasir next claims that he was deprived of a fair and

impartial jury because one of the jurors at his trial, Juror 27,

did not unequivocally affirm that she would be impartial. Our

review of a ruling on a motion to strike a juror for cause is for

manifest error – a most deferential standard. Skilling v. United

States, 561 U.S. 358, 396 (2010). The Supreme Court has

emphasized that jury selection is "particularly within the

province of the trial judge” and cautioned against "secondguessing the trial judge's estimation of a juror's impartiality[.]”

Id. at 386 (citation and internal quotation marks omitted).

During voir dire, one of the questions the District Court

asked to determine juror partiality was, "Would you give more

or less weight to the testimony of a law enforcement agent or

police officer than you would give to that of a civilian witness,

8

We note, as did the District Court, that even if the

search had been performed prior to Nasir's arrest, "the search

of the vehicle appears to have been within the scope of the

automobile exception.” (App. at 21 n.4 (citations omitted).) It

is well established that under the automobile exception to the

warrant requirement, the police may search a vehicle if they

have probable cause to believe that the vehicle contains

evidence of criminal activity. Carroll v. United States, 267

U.S. 132, 155-56 (1925). Here, the same facts that gave rise to

probable cause for an arrest can rightly be seen as

independently giving rise to probable cause for a search of the

vehicle.

15

simply because he or she is employed as a law enforcement

agent or police officer?” (App. at 237-38.) Because Juror 27

answered "yes” to that question, the following colloquy

ensued:

A JUROR: [...] But the other thing that I kind

of answered "yes” to was police officer and a

person on the street. I would like to think I would

be partial (sic), but I don't know.

THE COURT: You would like to think you

would be impartial and fair to both sides?

A JUROR: Yes, impartial that is what I would

like to say.

THE COURT: What is your concern you

wouldn't be?

A JUROR: Well, my daughter dates a state

police officer. And I really have a lot of respect

for them, you know, and I feel that for the most

part they all do a good job, and they try to be fair.

I think I might tend to believe what they say. I

don't know.

THE COURT: Do you think if I instruct you that

you have to be fair and impartial and assess

everybody's credibility as best as you can that

you would be able to do that?

A JUROR: I would think I would. I would hope

I would.

(App. at 305.) Then, outside the juror's presence the

Court and counsel had this further conversation:

16

[NASIR'S ATTORNEY]: Your Honor, I move

to strike on the basis that she -- her daughter is

dating a state police officer and she would tend

to believe the officer and police testimony.

THE COURT: What is the government's

position?

[GOVERNMENT'S ATTORNEY]: Your

Honor, I don't have a real strong one. That she

would answer any questions that she was

instructed [sic]. She could stay impartial. She

confronted all those issues. I certainly

understand why [Defense counsel] is objecting.

THE COURT: Any response?

[NASIR'S ATTORNEY]: No response, Your

Honor.

THE COURT: I'm going to deny the motion. I

felt sufficient confidence that she would work as

hard as anyone could to be fair and impartial, and

I think she would follow the instructions. So I'm

denying the motion to strike.

(App. at 306-07). Nasir argues that the statements "I would

think I would” and "I would hope I would” are not sufficiently

strong affirmations of impartiality.

Because the juror admitted to her concern about

partiality, the District Court quite rightly asked follow-up

questions to determine whether she was actually biased. Cf.

United States v. Mitchell, 690 F.3d 137, 142 (3d Cir. 2012)

(holding that actual bias is "the existence of a state of mind that

leads to an inference that the person will not act with entire

17

impartiality[,]” unlike implied bias, which is "presumed as [a]

matter of law” (citations and internal quotation marks

omitted)). Here, Juror 27's acknowledgement that she "ha[s]

a lot of respect for” police officers and "might tend to believe

what they say” prompted the District Court to emphasize her

obligation to be fair and impartial and to weigh the evidence

equally. (App. at 305.) She responded with assurances that

she would follow the Court's instructions. Her declaration that

she "would think” and "would hope” (App. at 305) that she

could be impartial – combined, it seems, with the way in which

she said it – allowed the District Court, observing her behavior

and mannerisms first hand, to have "sufficient confidence that

she would work as hard as anyone could to be fair and

impartial.” (App. at 306-07.) That decision, on this record, is

not manifestly erroneous.

D. The Career Offender Enhancement

Finally, Nasir challenges the enhancement he received

at sentencing pursuant to the "career offender” provision of the

sentencing guidelines. He argues that he should not have

received the enhancement because one of his two prior

qualifying convictions was an inchoate drug offense, which

does not qualify as a predicate offense under the plain language

of the guidelines. The interpretation of the guidelines is a legal

question, so we exercise plenary review. United States v.

Wilson, 880 F.3d 80, 83 (3d Cir. 2018). We agree with Nasir

that the plain language of the guidelines does not include

inchoate crimes, so he must be resentenced.

18

1. The Definition of "Controlled Substance

Offenses” in the Guidelines

Under section 4B1.1 of the sentencing guidelines, an

adult defendant is a career offender if "the instant offense of

conviction is a felony that is either a crime of violence or a

controlled substance offense; and ... the defendant has at least

two prior felony convictions of either a crime of violence or a

controlled substance offense.” U.S.S.G. § 4B1.1(a). If a

defendant is a career offender, that designation increases the

offense level of the crime for which he is to be sentenced and

mandates a criminal history ranking of Category VI.

U.S.S.G. § 4B1.1(b).

The District Court determined that one of Nasir's three

convictions in this case is a controlled substance offense,

namely his conviction on Count Two for possession of

marijuana with intent to distribute. After evaluating Nasir's

criminal history, the Court concluded that two of his prior

convictions in Virginia state court also qualify as predicate

controlled substance offenses: a 2000 conviction for an attempt

to possess with intent to distribute cocaine and a 2001

conviction for possession of marijuana and cocaine with intent

to distribute.9

Nasir was accordingly sentenced as a career

offender.

He argues that his conviction in 2000 for attempting to

possess with intent to distribute cocaine should not qualify as

9

Nasir has other prior convictions, but the government

and Nasir appear to agree than none of them qualify as

predicate offenses.

19

a "controlled substance offense” under section 4B1.1 because

the guidelines' definition of a "controlled substance offense”

does not include inchoate crimes.10 In particular, Nasir points

out that section 4B1.2 of the sentencing guidelines defines the

term "controlled substance offense,” to mean

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 a counterfeit substance) or the

possession of a controlled substance (or a

counterfeit substance) with intent to

manufacture, import, export, distribute, or

dispense.

U.S.S.G. § 4B1.2(b). Nasir notes this definition plainly does

not mention inchoate crimes, and consequently asserts that his

inchoate "attempt” crime should not qualify as a predicate

offense for the career offender enhancement. The analytical

problem is more complicated than that, however, because the

commentary to section 4B1.2 appears to expand the definition

of "'controlled substance offense' [to] include the offenses of

aiding and abetting, conspiring, and attempting to commit such

offenses.” U.S.S.G. § 4B1.2 cmt. n.1. That section of the

10 An inchoate offense is "[a] step toward the

commission of another crime, the step itself being serious

enough to merit punishment.” Offense, Black's Law

Dictionary (11th ed. 2019). Inchoate offenses include, for

example, the attempt, conspiracy, or solicitation to commit a

crime. Id.

20

commentary, and, importantly, our precedent on the

application of the commentary to the interpretation of the

guidelines, informed the District Court's decision to apply the

career offender enhancement. The question, then, is whether

the more expansive commentary should be given controlling

weight in interpreting the narrower guideline at issue here.11

2. The Effect of the Commentary on our

Interpretation of the Guidelines

The extent to which the guidelines' commentary

controls our interpretation of the guidelines themselves is

informed by principles of administrative law. In Stinson v.

United States, 508 U.S. 36 (1993), the Supreme Court

considered how to classify the commentary to the sentencing

guidelines and whether and when it should be given binding

interpretive effect. Because the guidelines are written by the

Sentencing Commission, a body that straddles both the

legislative and judicial branches of the government, the Court

11 The Sentencing Commission has proposed an

amendment to the guidelines to explicitly include inchoate

offenses in section 4B1.2(b). Notice of Proposed Amendments,

83 Fed. Reg. 65400-01, 65412-15 (Dec. 20, 2018). The

proposed change has been submitted for notice and comment,

and the time for notice and comment has closed. Id. However,

the Commission does not currently have a quorum (and has not

had one since at least 2018), so it cannot act on that issue. U.S.

Sentencing Commission, 2018 Annual Report 2-3, available at

https://www.ussc.gov/sites/default/files/pdf/research-andpublications/annual-reports-and-sourcebooks/2018/2018-

Annual-Report.pdf.

21

determined that the commentary to the guidelines is more akin

to an agency regulation than a statute. Id. at 44. Consequently,

the Court determined that the commentary should "be treated

as an agency's interpretation of its own legislative rule.” Id.

Relying on its opinion in Bowles v. Seminole Rock & Sand Co.,

the Court said that such determinations should be given

deference unless they are "plainly erroneous or inconsistent

with the regulation.” Id. at 45 (quoting Bowles v. Seminole

Rock & Sand Co., 325 U.S. 410, 414 (1945)). Further, the

Court instructed that, "if the guideline which the commentary

interprets will bear the construction,” the commentary can

expand the guidelines, particularly when the commentary is

"interpretive and explanatory.” Id. at 46-47. Accordingly, socalled Seminole Rock deference, also sometimes called Auer

deference,12 governs the effect to be given to the guidelines'

commentary.

Our precedent has followed that course. In United

States v. Hightower, 25 F.3d 182 (3d Cir. 1994), we applied the

12 In 1945, the Supreme Court upheld a regulation from

the Office of Price Administration in Bowles v. Seminole Rock,

after it determined that the language of the regulation was

consistent with Administration's interpretation of the

regulation. Seminole Rock, 325 U.S. at 417. Seminole Rock

thus became shorthand for the doctrine of deference to an

administrative agency's interpretation of its own regulations.

More than fifty years later, in Auer v. Robbins, 519 U.S. 452

(1997), the Court reinforced that doctrine. The doctrine is thus

sometimes referred to as Seminole Rock deference, after the

case that introduced it, and at other times referred to as Auer

deference, the more recent reiteration of the doctrine.

22

principles set forth in Stinson to determine whether inchoate

crimes are covered by sections 4B1.1 and 4B1.2 of the

sentencing guidelines. We asked "whether the Sentencing

Commission exceeded its statutory authority by expanding the

definition of a controlled substance offense” when it included

inchoate offenses as part of the definition of the term

"controlled substance offense” in the commentary to section

4B1.2. Hightower, 25 F.3d at 184 (internal quotation marks

omitted). We determined that the commentary to 4B1.2 was

explanatory and therefore binding. Id. at 185-87. Specifically,

although we admitted that the inclusion of inchoate crimes was

an "expansion of the definition of a controlled substance

offense[,]” we said that the expansion was "not 'inconsistent

with, or a plainly erroneous reading of,' § 4B1.2(2) of the

[s]entencing [g]uidelines, and that it does not 'violate[ ] the

Constitution or a federal statute.'” Id. at 187 (second two

alterations in original) (quoting Stinson, 508 U.S. at 38). We

later followed that precedent in United States v. Glass, 904

F.3d 319 (3d Cir. 2018), in which we held that a conviction

under a Pennsylvania "attempt” statute qualified as a predicate

controlled substance offense for the career offender

enhancement under the guidelines.

Our interpretation of the commentary at issue in

Hightower – the same commentary before us now – was

informed by the then-prevailing understanding of the deference

that should be given to agency interpretations of their own

regulations. Thus, although we recognized that the

commentary expanded and did not merely interpret the

definition of "controlled substance offense,” we nevertheless

gave it binding effect. In doing so, we may have gone too far

in affording deference to the guidelines' commentary under the

standard set forth in Stinson. Indeed, after the Supreme

23

Court's recent decision in Kisor v. Wilkie, 139 S. Ct. 2400

(2019), it is clear that such an interpretation is not warranted.

In Kisor, the Court cut back on what had been

understood to be uncritical and broad deference to agency

interpretations of regulations and explained that Auer, or

Seminole Rock, deference should only be applied when a

regulation is genuinely ambiguous. Id. at 2414-15. Kisor

instructs that "a court must carefully consider the text,

structure, history, and purpose of a regulation, in all the ways

it would if it had no agency to fall back on. Doing so will

resolve many seeming ambiguities out of the box, without

resort to Auer deference.” Id. at 2415 (citation, brackets, and

quotation marks omitted). Thus, before deciding that a

regulation is "genuinely ambiguous, a court must exhaust all

the traditional tools of construction.” Id. (citation and

quotation marks omitted).

Even when a regulation is ambiguous, there are limits

to deference. The agency's reading must be "reasonable[,]” as

informed by "[t]he text, structure, history, and so forth[,]”

which "establish the outer bounds of permissible

interpretation.” Id. at 2415-16. A court "must make an

independent inquiry into whether the character and context of

the agency interpretation entitles it to controlling weight[,]”

including whether it is the agency's "official position[.]” Id. at

2416. Moreover, an agency's interpretation must "in some

way implicate its substantive expertise” if it is to be given

controlling weight, since "[s]ome interpretive issues may fall

more naturally into a judge's bailiwick.” Id. at 2417. Finally,

the reading must "reflect fair and considered judgment” and

not simply be a "convenient litigating position.” Id. (citations

and quotation marks omitted). In short, the degree of deference

24

to be given an agency's interpretation of its own regulations is

now context dependent.

3. The Plain Text of the Guidelines

The definition of "controlled substance offense” in

section 4B1.2(b) of the guidelines is, again, in pertinent part as

follows:

[A]n 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 a

counterfeit substance) or the possession of a

controlled substance (or a counterfeit substance)

with intent to manufacture, import, export,

distribute, or dispense.

U.S.S.G. § 4B1.2(b). The guideline does not even mention

inchoate offenses. That alone indicates it does not include

them. The plain-text reading of section 4B1.2(b) is

strengthened when contrasted with the definition of "crime of

violence” in the previous subsection. That definition in section

4B1.2(a) does explicitly include inchoate crimes, see U.S.S.G.

§ 4B1.2(a) ("The term 'crime of violence' means any offense

... that – (1) has as an element the use, attempted use, or

threatened use of physical force against the person of

another[.]” (emphasis added)), which further suggests that the

omission of inchoate crimes from the very next subsection was

intentional.

25

That suggestion is separately bolstered by the fact that

section 4B1.2(b) affirmatively lists many other offenses that do

qualify as controlled substance offenses. As a familiar canon

of construction states, expressio unius est exclusio alterius: the

expression of one thing is the exclusion of the other. Applying

that canon has led at least one court of appeals to conclude that

section 4B1.2(b) does not include inchoate crimes. See United

States v. Winstead, 890 F.3d 1082, 1091 (D.C. Cir. 2018)

("Section 4B1.2(b) presents a very detailed 'definition' of

controlled substance offense that clearly excludes inchoate

offenses.”).

Congress has delegated substantial responsibility to the

Sentencing Commission, but, as the Supreme Court

emphasized in Kisor, the interpretation of regulations

ultimately "remains in the hands of the courts.” 139 S.Ct. at

2420. In light of Kisor's limitations on deference to

administrative agencies, and after our own careful

consideration of the guidelines and accompanying

commentary, we conclude that inchoate crimes are not

included in the definition of "controlled substance offenses”

given in section 4B1.2(b) of the sentencing guidelines.

Therefore, sitting en banc, we overrule Hightower, and,

accordingly, Nasir is entitled to be resentenced without being

classified as a career offender.

In sum, we will affirm Nasir’s convictions, will vacate

his sentence, and will remand for resentencing consistent with

this opinion.