Published on: Wednesday, January 18, 2023

Today, the en banc Eleventh Circuit issued an opinion that will give some drug defendant’s a big help at sentencing. See United States v. Dupree, No. 9-13776 (11th Cir. Jan.18, 2023)(en banc). In Dupree, the Eleventh held that the definition of “controlled substance offense” in USSG § 4B1.2(b) does not include inchoate offenses, such as conspiracy and attempt.  This is another victory for the defense in using the sea change in administrative deference recognized by the Supreme Court in Kisor v. Wilke, 139 S. Ct. 2400 (2019).  The Eleventh Circuit’s decision begins this way:

This appeal requires us to consider whether an inchoate offense qualifies as a “controlled substance offense” for purposes of the career offender sentencing enhancement under the United States Sentencing Guidelines. U.S. Sent’g Guidelines Manual § 4B1.2(b) (U.S. Sent’g Comm’n 2018). In this case, the district court sentenced Brandon Dupree as a career offender based partly on his conviction for conspiring to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846.  Dupree appealed his sentence, arguing that his § 846 conspiracy conviction could not serve as a predicate for his career offender enhancement because the Guidelines’ definition of “controlled substance offense” omitted conspiracy and other inchoate crimes.

A panel of this Court affirmed Dupree’s sentence, concluding that our decisions in United States v. Weir, 51 F.3d 1031 (11th Cir. 1995), and United States v. Smith, 54 F.3d 690 (11th Cir. 1995), foreclosed his argument.  United States v. Dupree, 849 F. App’x 911 (11th Cir. 2021) (unpublished), reh’g en banc granted, opinion vacated 25 F.4th 1341 (11th Cir. 2022). We granted Dupree’s petition to rehear the case en banc.  After careful consideration, and with the benefit of oral argument, we hold that the definition of “controlled substance offense” in § 4B1.2(b) does not include inchoate offenses.  We therefore vacate Dupree’s sentence and remand to the district court for resentencing.

For those interested in learning more about how the Kisor decision can help criminal defendants, come join us at our Winning Strategies Seminar in New Orleans on February 23-25, 2023, to hear the presentation Dismantling the Administrative State by Todd Borden and Lisa Ma, Assistant Federal Defenders, Office of the Federal Public Defender, Northern District of California, San Francisco. Their presentation will cover emerging challenges to the Sentencing Guidelines commentary and beyond in light of the Supreme Court’s decisions in Kisor v. Wilkie and Stinson v. United States.