For the Defense - Vol. 6, Issue 2 - 18

The Nasir Case
The investigation of Malik Nasir began with a tip from
the owner of a commercial storage facility in Dover,
Delaware, who-over the course of several months-
had grown suspicious of the frequent comings and
goings of a storage unit renter who turned out to be
Nasir. Based on that tip, along with other information
and surveillance, the police ultimately arrested Nasir
and charged him with violating 21 U.S.C. § 856(a)(1),
part of what is commonly known as the crack house
statute (Count One); 21 U.S.C. §§ 841(a)(1) and (b)(1)
(D) for possession of marijuana with intent to distribute
(Count Two); and 18 U.S.C. §§922(g)(1) and 924(a)(2) as
a felon in possession of a firearm (Count Three). After a
jury trial, Nasir was convicted of all three counts.4
Career Offender Enhancement under
§ 4B1.1(a): When a Definition in a Guideline
and Its Commentary Are Different, Which
Definition Controls?
The District Court sentenced Nasir to 210 months of
imprisonment and three years of supervised release,
having determined that he qualified as a career offender
under § 4B1.1(a) because of two earlier convictions in
Virginia, one of which was for attempting to possess
cocaine with intent to distribute. On appeal to the Third
Circuit, Nasir argued that his sentence should not have
been enhanced under § 4B1.1(a) because one of his
two prior felony convictions upon which the sentencing
relied was for attempt, an inchoate crime that did not
qualify as a predicate offense.
Section 4B1.1(a) renders a defendant a career offender
and enhances a sentence if the defendant is at least 18
years old, is convicted of 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. " 5
substance offense' include the offenses of aiding and
abetting, conspiring, and attempting to commit such
offenses. " 6
which
Courts treat the application notes and
commentary to the Sentencing Guidelines like an
agency's interpretation of its own rules. And Supreme
Court precedent in Stinson v. United States7
the Third Circuit had followed in both United States
v. Hightower8
and United States v. Glass9,10
said that
" commentary in the Guidelines Manual that interprets
or explains a guideline is authoritative unless it violates
the Constitution or a federal statute, or is inconsistent
with, or
a plainly erroneous
reading of, that
guideline. " 11 Under the reasoning of Stinson and its
Third Circuit offshoots, the District Court had properly
included Nasir's prior conviction for the inchoate crime
of attempt as a predicate offense.
But then the Supreme Court decided Kisor v. Wilkie.12
In addressing the deference given to administrative
agency interpretations of their own regulations, the
Kisor Court emphasized that deference is triggered and
applied only when a regulation is truly ambiguous.13
If the regulation is not ambiguous, no deference is
triggered; the regulation " then just means what it
means-and the court must give it effect, as the court
would any law. " 14
Based on Kisor's instruction to avoid
commentary and interpretation if there was " only
one reasonable construction of a regulation, " the
Nasir court concluded, for reasons of both statutory
construction and policy, that the Guideline definition
of " controlled substance offense " unambiguously did
not include inchoate crimes.15
Overruling its Hightower
line of precedent, the court concluded that inchoate
crimes are not included in § 4B1.2(b)'s definition of
" controlled substance offenses " and vacated Nasir's
sentence, remanding for resentencing without his
being classified as a career offender.16
As of April 15, 2021, at least three Circuits flatly
" Controlled substance offense " is defined in
§ 4B1.2(b) 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 a counterfeit substance) or the possession of a
controlled substance (or a counterfeit substance) with
intent to manufacture, import, export, distribute, or
dispense. "
Nasir argued that the plain language of § 4B1.2(b)'s
definition of a " controlled substance offense " did not
include inchoate crimes such as attempt and, therefore,
his prior offense for attempt to possess cocaine with
intent to distribute could not serve a predicate offense
under the career offender enhancement.
But the commentary to the Guidelines explicitly
includes attempt as a predicate offense: " 'controlled
18 For The Defense l Vol. 6, Issue 2
disagree with the reasoning of Nasir and hold that
notwithstanding Kisor's emphasis on cabining Auer
deference, § 4B1.2(b)'s definition of " controlled
substance offenses " is ambiguous enough to trigger
deference to the commentary's inclusion of inchoate
offenses as predicate offenses for career offender
enhancement.17
A panel of the Fifth Circuit
also
concluded that inchoate crimes were included in the
definition of " controlled substance offenses, " although
it noted in a footnote that if it was not constrained
by its own precedent " our panel would be inclined to
agree with the Third Circuit. " 18
Given the split and that at least one Petition for
Certiorari has been filed with the U.S. Supreme Court,19
the question whether inchoate crimes may be included
as a predicate offense for § 4B1.2(b)'s career offender
sentencing enhancement may be definitively decided
by the Supreme Court soon.

For the Defense - Vol. 6, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 2

For the Defense - Vol. 6, Issue 2 - 1
For the Defense - Vol. 6, Issue 2 - 2
For the Defense - Vol. 6, Issue 2 - 3
For the Defense - Vol. 6, Issue 2 - 4
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For the Defense - Vol. 6, Issue 2 - 15
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