For the Defense - Vol. 7, Issue 4 - 25

courts to apply. Critically, the Court held that, before deferring to
an agency interpretation, " a court must exhaust all the traditional
tools of construction. " 8
In distinguishing a leadership and organizational
Even when a regulation is ambiguous,
there are limits to deference.9
Two years later in Nasir, the Third Circuit was called upon to
consider whether the definition of " controlled substance offense "
supplied by the Guidelines commentary should control over the
definition contained in the Guideline itself.10
The District Court
sentenced Malik Nasir as a career offender, finding that his prior
conviction for attempted possession with intent to deliver cocaine
qualified as a predicate " controlled substance offense. " 11
While
the definition of " controlled substance offense " in the relevant
Guideline (U.S.S.G. 4B1.2) did not include inchoate offenses, such
as attempt, the commentary did include them.12
The sentencing
court relied upon pre-Kisor Third Circuit precedent, United States
v. Hightower,13
which found that the commentary's definition was
binding. Accordingly, Nasir was sentenced as a career offender.
On appeal, the question before the Third Circuit was whether,
in a post-Kisor world, " the more expansive commentary should be
given controlling weight in interpreting the narrower guideline at
issue here. " 14
The Nasir Court applied the Kisor analysis and found
that the definition of " controlled substance offense " in U.S.S.G.
§ 4B1.2(b) was not ambiguous, and therefore there was no need
to refer to the broader definition contained in the commentary.15
Nasir should not have been subject to the enhancement, because
" the guideline does not even mention inchoate offenses. " 16
The sentencing court did not follow the Kisor process as Nasir
requires because Nasir was not in effect at the time of Adair's
sentencing. The Third Circuit found that under Nasir and Kisor, it
was obligated to carefully examine the text, structure, purpose,
and history of § 3B1.1(a). The Court referenced the dictionary
definitions of the words " organizer " and " leader " and found
that they can be readily understood. It concluded that " the terms
'organizer' and 'leader' are not genuinely ambiguous " and that " a
defendant who meets the definition of an 'organizer' or 'leader'
qualifies for the four point enhancement. " 25
Thus, there was no
Nasir
explicitly overruled Hightower. In a striking concurrence, Judge
Bibas predicted the coming of Adair, declaring: " We must look
at things afresh. Old precedents that turned to the commentary
rather than the text no longer hold. " 17
The Adair Decision
Antoinette Adair was prosecuted for illegally trafficking
prescription painkilling medication.18
As recounted by the
Court, Adair developed a significant criminal enterprise, often
collaborating with and directing others involved in her illicit drug
trade and asserting her authority over them.19
in 2016 and eventually pleaded guilty to ten counts pertaining
to health care fraud and drug distribution.20
Adair was arrested
At sentencing, the
District Court applied a four-level increase in the offense level
for the organizer-leader enhancement and subtracted two levels
(instead of three) for her acceptance of responsibility. The result
was a Guideline range of 188-235 months' imprisonment.21
After
granting a downward variance, the Court sentenced Adair to 168
months in prison.
Adair's Challenge to the Application of the Organizer-Leader
Enhancement
On appeal, Adair argued that the District Court miscalculated
her sentence, and that the organizer-leader enhancement in
U.S.S.G. § 3B1.1 should not have applied to her.22
The Guideline
states simply that " If the defendant was an organizer or leader
of a criminal activity that involved five or more participants or
was otherwise extensive, increase by 4 levels. " 23
states:
The commentary
Applicability of a One-Level Reduction for Acceptance of
Responsibility Under Guideline § 3E1.1(b)
Adair also argued that the government should have moved for
an additional one-level reduction for acceptance of responsibility, in
addition to the two-level reduction she received under § 3E1.1(a).30
Section 3E1.1 provides as follows:
(a) If the defendant clearly demonstrates acceptance
of responsibility for his offense, decrease the offense
level by 2 levels.
(b) If the defendant qualifies for a decrease under
subsection (a), the offense level determined prior to
the operation of subsection (a) is level 16 or greater,
Vol. 7, Issue 4 l For The Defense 25
need to refer to the commentary as the sentencing court had
done.26
This outcome is particularly noteworthy because, unlike
in Nasir, the commentary to 3B1.1 did not on its face expand the
reach of the organizer-leader enhancement. Nevertheless, the
Court discarded the multi-factor test in Application Note 4.
Applying the plain language interpretations of " organizer "
and " leader, " the Third Circuit agreed with the trial court's
factual findings regarding Adair's significant role in the criminal
enterprise. It concluded that the enhancement applied to Adair
under either the organizer or leader concept.27
For this reason, the
Third Circuit ruled that the trial court committed harmless error
by not following Kisor.28
Although the error was harmless, the
reasoning is significant because it signals that prior cases invoking
the Guidelines' commentary are no longer controlling. Indeed, the
Court remarked, " Without [the Kisor] analysis, the binding nature
of those cases' interpretations of § 3B1.1(a) no longer preserves,
and the Guideline must be reevaluated under the Kisor process. " 29
role from one of mere management or supervision,
titles such as " kingpin " or " boss " are not controlling.
Factors the court should consider include the
exercise of decision making authority, the nature of
participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.
There can, of course, be more than one person
who qualifies as a leader or organizer of a criminal
association or conspiracy. This adjustment does not
apply to a defendant who merely suggests committing
the offense.24
For the Defense - Vol. 7, Issue 4

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