In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2215
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NTHONY R AUPP,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:10CR00176-001—Tanya Walton Pratt, Judge.
A RGUED N OVEMBER 2, 2011—D ECIDED M ARCH 9, 2012
Before E ASTERBROOK, Chief Judge, and P OSNER and
W OOD , Circuit Judges.
E ASTERBROOK, Chief Judge. Anthony Raupp pleaded
guilty to possessing a firearm despite his status as a felon.
18 U.S.C. §922(g)(1). The district court concluded that
Raupp is a “career offender” under the Sentencing Guide-
lines because he has at least two other convictions for
crimes of violence. U.S.S.G. §4B1.1. This appeal, from the
sentence of 100 months’ imprisonment, presents a single
2 No. 11-2215
question: Whether a conspiracy to commit robbery is a
“crime of violence” under the Guidelines.
Robbery in Indiana is a “crime of violence” under the
Guidelines and a “violent felony” under the Armed Career
Criminal Act, 18 U.S.C. §924(e). See United States v. Lewis,
405 F.3d 511, 514 (7th Cir. 2005). Raupp was convicted
under Ind. Code §35-41-5-2 of conspiring to violate Ind.
Code §35-42-5-1, Indiana’s robbery statute. An applica-
tion note to U.S.S.G. §4B1.2, which defines the phrase
“crime of violence”, tells us that an inchoate offense
such as conspiracy is a “crime of violence” when the
underlying crime is one. This note reads: “ ‘Crime of
violence’ and ‘controlled substance offense’ include
the offenses of aiding and abetting, conspiring, and
attempting to commit such offenses.” That disposes of
this appeal, as far as the Sentencing Commission is con-
cerned.
Raupp asks us to ignore the application note. He con-
tends that it has been superseded by Begay v. United
States, 553 U.S. 137 (2008), and later decisions. Begay
held that the Armed Career Criminal Act treats as a
“violent felony” only an offense in which violence is an
element, see §924(e)(2)(B)(i), or is similar to the intro-
ductory list in subsection (B)(ii) in the sense that
the activity not only creates risks of injury but also is
purposeful, violent, and aggressive conduct. 553 U.S. at
144–45. There’s nothing violent about conspiracy, Raupp
insists; a conspiracy is an agreement, an exchange of
words rather than an aggressive deed. Although James v.
United States, 550 U.S. 192 (2007), holds that attempted
No. 11-2215 3
burglary is a violent felony under the Act, Raupp
contends that we should not infer from James that all
inchoate crimes can be classified the same way. Conviction
for attempt usually requires proof of a substantial step
toward the completed crime, while conviction for con-
spiracy does not. Some conspiracy statutes don’t require
proof of an overt act, see United States v. Shabani, 513
U.S. 10 (1994), and those that do could be satisfied by
peaceable steps, such as casing the joint in advance of
a robbery.
Begay and its successors interpret a statute, not the
Guidelines. The final step in Raupp’s argument is the
proposition that the statute and the career-offender
Guideline must be understood identically. We have
held that, when the Guidelines and the Armed Career
Criminal Act use the same language, they receive the
same interpretation. See, e.g., United States v. Woods, 576
F.3d 400, 403–04 (7th Cir. 2009); United States v. Templeton,
543 F.3d 378, 380 (7th Cir. 2008). The definition of “crime
of violence” in U.S.S.G. §4B1.2(a) is materially the same
as the definition in §924(e)(2)(B). It follows, Raupp con-
tends, that Indiana’s crime of conspiracy to commit
robbery is not a “crime of violence” under the Guidelines.
If that’s right, then Raupp’s correct sentencing range
is lower than the one the district court calculated, and
he would be entitled to a remand for resentencing.
The United States contends that conspiracy should be
treated like attempt (and for that matter aiding and
abetting) under both the statute and the Guidelines. We
need not decide whether that is so. James reserved the
4 No. 11-2215
question whether a particular inchoate offense may be
so far distant from the completed crime that it should
not be treated as a “violent felony” under the statute.
550 U.S. at 205–06. But Raupp was not convicted under
§924(e) of being an armed career criminal. He was
convicted of unlawfully possessing one firearm and sen-
tenced as a career offender under the Guidelines. That
makes a difference.
Woods and Templeton hold that identical language
implies identical interpretation, but the Guidelines
contain some language that is not in the statute. The
application note about the treatment of inchoate
offenses is unique to the Guidelines. Section 924(e)(2)(B) of
the statute corresponds to §4B1.2(a); everything else in
the Guidelines and the accompanying notes must be
taken into account, not ignored. If the Sentencing Com-
mission wants to have a list of qualifying offenses that
differs from the one in the statute (as Begay reads §924(e)),
there’s no reason why the judges should say nay. The
Commission could have put the language of the note
in §4B1.2(a) as a new paragraph, and then Raupp’s argu-
ment would be sunk. Likewise the Commission could
have added offense levels for anyone whose record in-
cludes a conviction of conspiracy to commit robbery,
whether or not that conviction is classified as a “crime of
violence.” Why should it matter that the Commission
achieved the same end by using a note to elaborate on
the meaning of “crime of violence”?
Decisions such as Auer v. Robbins, 519 U.S. 452, 461–63
(1997), and Homemakers North Shore, Inc. v. Bowen, 832 F.2d
No. 11-2215 5
408 (7th Cir. 1987), tell us that, when an agency
interprets one of its own regulations, the agency’s under-
standing prevails unless it contradicts the text of the
regulation. The Sentencing Commission’s application
notes carry the same force.
the commentary [should] be treated as an agency’s
interpretation of its own legislative rule. The
Sentencing Commission promulgates the guide-
lines by virtue of an express congressional delega-
tion of authority for rulemaking, and through
the informal rulemaking procedures in 5 U.S.C.
§553, see 28 U.S.C. §994(x). Thus, the guidelines
are the equivalent of legislative rules adopted by
federal agencies. The functional purpose of com-
mentary (of the kind at issue here) is to assist in
the interpretation and application of those rules,
which are within the Commission’s particular
area of concern and expertise and which the Com-
mission itself has the first responsibility to formu-
late and announce. In these respects this type
of commentary is akin to an agency’s interpreta-
tion of its own legislative rules. As we have
often stated, provided an agency’s interpretation
of its own regulations does not violate the Consti-
tution or a federal statute, it must be given “con-
trolling weight unless it is plainly erroneous or
inconsistent with the regulation.”
Stinson v. United States, 508 U.S. 36, 44–45 (1993) (most
internal citations omitted without indication). Thus the
Supreme Court treats application notes as authoritative
6 No. 11-2215
glosses on the Guidelines, unless the notes conflict with
the text. See, e.g., Melendez v. United States, 518 U.S. 120
(1996). See also, e.g., United States v. Vizcarra, No. 09-1174
(7th Cir. Feb. 7, 2012), slip op. 6–7; United States v. Hill,
645 F.3d 900, 907–08 (7th Cir. 2011).
The first application note to §4B1.2 tells us that the
Sentencing Commission deems inchoate and completed
offenses to be the same for the purpose of identifying
career offenders. Is this note inconsistent with anything
in the text of a Guideline? Begay and similar decisions
do not concern any Guideline, so they do not address
that subject; they have nothing to say about the effect
of language that differentiates the Guidelines from the
Armed Career Criminal Act. Accord, United States v.
Martinez, 602 F.3d 1166, 1173–75 (10th Cir. 2010) (con-
sidering, and rejecting, the argument that Begay
nullifies the first application note to §4B1.2; also
rejecting an argument that the application note con-
flicts with the text of the Guideline).
Forget Begay and ask directly whether the note con-
flicts with the Guideline. Here is §4B1.2(a):
The term “crime of violence” means any offense
under federal or state law, punishable by imprison-
ment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or
threatened use of physical force against the
person of another, or
(2) is burglary of a dwelling, arson, or extor-
tion, involves use of explosives, or otherwise
No. 11-2215 7
involves conduct that presents a serious po-
tential risk of physical injury to another.
And here is the note:
“Crime of violence” and “controlled substance
offense” include the offenses of aiding and abet-
ting, conspiring, and attempting to commit such
offenses.
There cannot be a conflict because the text of §4B1.2(a)
does not tell us, one way or another, whether inchoate
offenses are included or excluded. The note says they
are included.
James puts to rest any doubt about whether answering
the question “are inchoate offenses included?” conflicts
with the text. The Supreme Court held in James that
attempted burglary (an inchoate offense) is a “violent
felony” for the purpose of §924(e)(2)(B)(ii). As we
related above, James does not tell us whether conspiracy
to commit a violent felony is treated as a violent felony.
But James does show that there is no conflict between
the text of §924(e)(2)(B)(ii), or §4B1.2(a), and a rule
treating an inchoate offense the same as the substantive
offense. If treating substantive and inchoate offenses
alike created a conflict, then James would have come
out the other way. Instead it grouped attempt with the
substantive crime—and it found support in the Sen-
tencing Commission’s note to §4B1.2, quoting with ap-
proval, 550 U.S. at 206, the very language equating at-
tempts and conspiracies that Raupp wants us to ignore.
See also Kawashima v. Holder, No. 10–577 (U.S. Feb. 21,
2012), slip op. 4–5 (treating the offense of aiding and
8 No. 11-2215
abetting a violation of tax laws as having the same attrib-
utes as the underlying substantive offense).
Whether conspiracy should be treated the same way
as attempt cannot be resolved by the rule that the Com-
mission must not use notes to contradict the Guidelines’
text. Instead the question “should conspiracy and
attempt be treated the same?” concerns wise policy.
Perhaps, as Raupp contends, attempts are more
dangerous than conspiracies, because of the substantial-
step element of attempt crimes. Perhaps one could say,
to the contrary, that the conspiracies are more
dangerous than attempts, because conspiracies always
involve multiple actors, and criminal gangs are more
likely to succeed than lone criminals are. See United
States v. Manzella, 791 F.2d 1263, 1265 (7th Cir. 1986).
Deciding how to handle conspiracy is a question about
wise policy, not about textual conflict.
Raupp may be assuming that the career-criminal Guide-
lines implement §924(e). If that were so, then our inter-
pretation of the Guidelines would be required to
mirror §924(e) as interpreted in Begay (and James). But
the career-offender Guidelines don’t depend on §924(e).
Instead they implement 28 U.S.C. §994(h), which
requires the Commission to establish guidelines that
specify a range near the statutory maximum for career
criminals. Section 994(h) defines a career criminal as
a person 18 or over who commits a “crime of violence” or
a specified drug offense, and who also has two or more
prior felony convictions for a “crime of violence” or a
drug felony. Congress left “crime of violence” in §994(h)
No. 11-2215 9
undefined, though it did furnish a list of qualifying
drug offenses. Section 994(h) does not cross-reference
§924(e).
Thus the Commission is free to go its own way; it can
classify as “crimes of violence” offenses that are not
“violent felonies” under §924(e). It can’t do this by ap-
plication notes that contradict the text of the Guideline,
but what the first note to §4B1.2 does is address a
question—the treatment of inchoate offenses—left open
by the text of §4B1.2, as it is also left open by the text
of §924(e) and the holding of James.
Section 924(e) uses the definition of “violent felony” to
set 15-year minimum sentences. The Sentencing Com-
mission does not prescribe such a stern and inflexible
outcome by defining “crime of violence.” The career-
offender Guideline raises the offense level without
setting a mandatory minimum. It is just another Guide-
line, so the judge is free to impose a sentence outside the
Commission’s preferred range after evaluating each
defendant’s arguments. See United States v. Corner, 598
F.3d 411 (7th Cir. 2010) (en banc). Raupp was free to
contend that a conviction for conspiracy to commit rob-
bery does not imply the same level of dangerousness as
a conviction for robbery, and to seek a lower sentence
on that account. But he does not assert that the district
judge misunderstood the extent of her discretion or
exercised it unreasonably. His sole contention is that
district judges must ignore the first application note
to §4B1.2, and that contention does not carry the day.
A FFIRMED
10 No. 11-2215
W OOD , Circuit Judge, dissenting. The only point that
Anthony Raupp has raised on this appeal is whether
he was correctly classified as a career offender under
the U.S. Sentencing Guidelines, §§ 4B1.1 and 4B1.2. This
question turns on the definition of “crime of violence”
that should govern here, and whether that definition
covers Raupp’s prior state conviction for conspiracy
to commit robbery. My colleagues conclude that the
Sentencing Guidelines in this instance have adopted a
significantly broader definition than the one used in
the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(2)(B). With respect, I do not agree with them.
Their holding is inconsistent with a long line of cases
holding that the text of § 4B1.2 and the nearly identical
text in the ACCA have the same meaning. Although
there would be no problem if the commentary to the
Guidelines on which my colleagues rely were merely
explaining concepts within the boundaries established
by the Guidelines themselves, there is a problem when
the commentary strays outside those boundaries alto-
gether. I am persuaded by Raupp’s argument, and
I would therefore vacate his sentence and remand for
resentencing.
Raupp pleaded guilty to being a felon in possession of
a firearm, made criminal by 18 U.S.C. § 922(g)(1). As
part of the required calculation of his advisory guide-
lines sentence, the district court considered whether he
should be classified as a career offender under § 4B1.1,
which in relevant part says:
(a) A defendant is a career offender if (1) the
defendant was at least eighteen years old at
No. 11-2215 11
the time the defendant committed the instant
offense of conviction; (2) the instant offense
of conviction is a felony that is either a crime
of violence or a controlled substance offense;
and (3) the defendant has at least two prior
felony convictions of either a crime of violence
or a controlled substance offense.
If those criteria are met, then the defendant’s offense
level is governed by § 4B1.1(b) rather than the Guide-
lines that would otherwise apply. The only point of
contention in Raupp’s case is element (3): does he have
two prior felony convictions that qualify as a crime of
violence (or a controlled substance offense)? He does not,
unless the conspiracy conviction counts. And so the
question becomes whether that offense meets the defini-
tion set forth in the Guidelines. To answer that, one
must turn to § 4B1.2, which defines the terms used in
§ 4B1.1.
Section 4B1.2(a) defines the term “crime of violence” as
follows:
. . . any offense under federal or state law, punish-
able by imprisonment for a term exceeding one
year, that—
(1) has as an element the use, attempted use, or
threatened use of physical force against the
person of another, or
(2) is burglary of a dwelling, arson, or extortion,
involves the use of explosives, or otherwise
involves conduct that presents a serious poten-
tial risk of physical injury to another.
12 No. 11-2215
The language of the ACCA does not track that definition
perfectly, but it comes close. After stating that a person
who violates § 922(g) and who has three previous con-
victions “for a violent felony or a serious drug offense”
gets an enhanced sentence, the ACCA defines the term
“violent felony” as follows:
. . . any crime punishable by imprisonment for a
term exceeding one year [or certain juvenile dispo-
sitions not at issue here], that—
(i) has as an element the use, attempted use, or
threatened use of physical force against the
person of another, or
(ii) is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct
that presents a serious potential risk of physi-
cal injury to another . . . .
18 U.S.C. § 924(e)(2)(B). The only differences between
these definitions are (1) the use of the term “crime of
violence” versus the term “violent felony”; (2) the addition
of the phrase “of a dwelling” after the word “burglary”;
and (3) the addition of the word “the” before the
word “use” in subpart two. To say that these are inconse-
quential differences (with the possible exception of the
mention of a dwelling, see United States v. Wenner, 351
F.3d 969, 973 n.2 (9th Cir. 2003), but that is not at issue
here) is to flatter them. In all respects relevant to this
case, the two provisions are essentially identical.
So far, so good. This court has regularly respected the
substantive identity of these two provisions. See, e.g.,
No. 11-2215 13
United States v. Scanlan, 667 F.3d 896, 898 (7th Cir. 2012);
Narvaez v. United States, 641 F.3d 877, 879 (7th Cir. 2011);
United States v. Woods, 576 F.3d 400, 403-04 (7th Cir. 2009)
(applying the Supreme Court’s decision in Begay v. United
States, 553 U.S. 137 (2008), an ACCA case, to § 4B1.2; the
dissenters disagreed only with respect to how Begay
should be applied, not whether it should be); United States
v. Templeton, 543 F.3d 378, 380 (7th Cir. 2008) (“It would
be inappropriate to treat identical texts differently
just because of a different caption.”).
Raupp argues here that the inchoate crime of which
he was convicted—conspiring to commit robbery in
violation of Ind. Code § 35-42-5-2—is not (1) a crime
that has physical force as an element; (2) a crime listed
in the Guideline; nor (3) does it involve conduct “that
presents a serious potential risk of physical injury to
another” (the so-called “residual clause”). Raupp’s first
two points are indisputable. Unlike the inchoate crime
of attempted robbery, which requires a substantial step
toward the completed crime, Indiana’s crime of con-
spiracy may involve only nefarious conversations.
Henderson v. State, 769 N.E.2d 172, 177 (Ind. 2002); see also
Coleman v. State, 952 N.E.2d 377, 382 (Ind. App. Ct. 2011)
(“[T]he agreement itself constitutes the criminal act.”).
Using the modified categorical approach that governs
these cases, Raupp’s crime was indivisible and so it does
not matter how he actually carried out his conspiracy. See
Woods, 576 F.3d at 405-06. Conspiracy cannot be used as
a predicate for his career criminal calculation, then,
unless it falls within the “residual clause.”
14 No. 11-2215
But the majority has concluded that it does not need
to address the question whether conspiracy “presents a
serious potential risk of physical injury to another.”
Instead, it plays a trump card against Raupp that comes
from the commentary to § 4B1.2. Application Note 1,
paragraph 1, says that “ ‘[c]rime of violence’ and ‘con-
trolled substance offense’ include the offenses of aiding
and abetting, conspiring, and attempting to commit
such offenses.” If the Sentencing Commission is entitled
to broaden the Guideline so that it applies to non-violent
crimes such as the version of conspiracy that Indiana
has adopted, then my colleagues are correct that this
language checks Raupp’s argument. In order to reach
that result, they assume that the treatment of inchoate
offenses is left open by § 4B1.2, and that all the Com-
mission has done in the Application Note is to fill in a
blank. In my view, however, the inclusion of all con-
spiracy offenses is inconsistent with the language of
the Guideline, and thus the expansion implicit in the
Application Note is incorrect under established prin-
ciples of administrative law.
I begin with James v. United States, 550 U.S. 192 (2007),
since it is the only Supreme Court decision to discuss
inchoate offenses. There the Court held that Florida’s
attempted burglary offense was properly viewed as a
“violent felony” under the ACCA. The attempt offense
at issue required that the burglar take “an overt act di-
rected toward entering or remaining in a structure,” id. at
206, and this, the Court found, “creat[ed] a risk of violent
confrontation comparable to that posed by finding
him inside the structure itself,” id. at 203-04. The holding
No. 11-2215 15
in James left untouched different statutes that do not
require a similar substantial step toward the completion
of the crime, such as those at issue in United States v.
Strahl, 958 F.2d 980, 986 (10th Cir. 1992), United States v.
Martinez, 954 F.2d 1050, 1054 (5th Cir. 1994), and United
States v. Weekley, 24 F.3d 1125 (9th Cir. 1994). See also
United States v. Martinez, 602 F.3d 1166, 1171-72 (10th
Cir. 2010) (concluding that Arizona’s attempted burglary
statute is not a violent felony and distinguishing James).
This is consistent with the approach to the ACCA taken
in Sykes v. United States, 131 S. Ct. 2267 (2011), where
the Court stressed that risk of violence is the dispositive
factor for the residual clause. Id. at 2275. In so holding,
it reinforced what it already had said in James: “We con-
clude that nothing in the plain language of clause (ii),
when read together with the rest of the statute, prohibits
attempt offenses from qualifying as ACCA predicates
when they involve conduct that presents a serious potential
risk of physical injury to another.” 550 U.S. at 198 (emphasis
added). The Court’s caution is most sensibly read as an
acknowledgment that some inchoate offenses will
create the necessary “serious potential risk of physical
injury to another” and others will not. Conspiracy
offenses are often a further step away from any physical
dimension, as the majority recognizes. Ante at 3 (convic-
tion for conspiracy may not require proof of an overt act,
or the overt act might be satisfied by peaceable steps).
We must take care not to conflate the analysis of attempt
offenses, which in Indiana require a “substantial step”
toward completion of the robbery, with the analysis
of conspiracy offenses, which do not in that state. Calvert
16 No. 11-2215
v. State, 930 N.E.2d 633, 640 (Ind. App. Ct. 2010). Indeed,
Indiana courts have stressed that a conviction for con-
spiracy “does not require proof that the defendant or a
cohort actually committed or even attempted to commit
the underlying crime.” Coleman, 952 N.E.2d at 382. And
the Indiana legislature has declined to treat the crime
of conspiracy as a crime of violence under state law. See
id. at 383 (“The legislature reasonably may have con-
cluded that because conspiracies do not necessarily
result in actual harm to a victim, and often require less
proof of detrimental conduct in order to convict a defen-
dant than as to the completed crime, it would not
include conspiracies to commit a ‘crime of violence’
within the definition of ‘crime of violence.’ ”).
The majority postulates that the Sentencing Commis-
sion might have chosen to include inchoate offenses in
the text of § 4B1.2 itself. I agree with them that there was
nothing forcing the Commission to use the same
language as that found in the ACCA, and I also agree
that Raupp’s argument would have no merit if the Com-
mission had written a Guideline that expressly included
all inchoate offenses. But, to state the obvious, that is
not what the Commission did. Instead, it elected to pro-
mulgate a Guideline that mimics the ACCA and then
to “interpret” that Guideline expansively in the Applica-
tion Note. That is where it went astray.
Application Notes in the commentary to the Sen-
tencing Guidelines should “be treated as an agency’s
interpretation of its own legislative rule.” Stinson v.
United States, 508 U.S. 36, 44 (1993). And, “provided an
No. 11-2215 17
agency’s interpretation of its own regulations does not
violate the Constitution or a federal statute, it must be
given ‘controlling weight unless it is plainly erroneous
or inconsistent with the regulation.’ ” Id. at 45 (quoting
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)).
This type of deference today is most commonly referred
to as “Auer deference,” alluding to the leading case of
Auer v. Robbins, 519 U.S. 452 (1997). The majority acknowl-
edges Auer and Stinson, but it fails adequately to
consider whether “the guideline which the commentary
interprets will bear the construction.” Stinson, 508 U.S.
at 46.
In order to assess the scope of the Guideline properly,
we must take into account the fact that its language
is identical to, and in fact came directly from, a statute
passed by Congress. The definition found in the ACCA
was put in place in 1986. See 18 U.S.C. § 924(e)(2)(B). The
current language in Section 4B1.2 of the Guidelines
was adopted by the Sentencing Commission in its 1989
amendments, with the explanation that “[t]he definition
of crime of violence used in this amendment is derived
from 18 U.S.C. § 924(e).” It is therefore fitting for courts,
as ours consistently has done until now, to look
to ACCA case law to understand the corresponding
language in the Guidelines. See, e.g., United States v.
Lockley, 632 F.3d 1238, 1243 n.5 (11th Cir. 2011) (“Though
ACCA’s ‘violent felony’ enhancement and the Guide-
lines’ career offender enhancement differ slightly in
their wording, we apply the same analysis to both.”);
United States v. Archer, 531 F.3d 1347 (11th Cir. 2008)
(applying the analysis of ACCA cases to conclude that
18 No. 11-2215
carrying a concealed weapon is not a crime of violence
under the Guidelines, after the Supreme Court granted
certiorari in Archer and then remanded in light of its
ACCA decision in Begay). The majority dismisses the
relevance of the ACCA decisions because they concern
the statute; they do not concern any Guideline. Ante at 3.
I reject this effort to create a new division unjustified
by either the text of the two provisions or by the
agency’s own rationale for choosing to adopt the
statutory language as its own.
When an agency borrows language that originated with
Congress, we should not ignore the meaning of the con-
gressional language when we evaluate the agency’s
interpretation of its rules. For example, in United Fire
Ins. v. C.I.R., this court found that deference to the IRS’s
interpretation of its own regulation was not justified. 768
F.2d 164, 169 (7th Cir. 1985) (“We ordinarily accord
great deference to an agency’s interpretation of its own
regulations. But even so, we need not follow the agency’s
interpretation when there are compelling indications
that it is wrong.”). In that case, we noted that “the
grounds for deference are diminished by the fact that
the language of the regulations in question did not origi-
nate with the Commissioner but was taken almost verba-
tim from the Senate Report on the Revenue Act of 1942.”
Id. Because the regulatory language originated in a con-
gressional report, we took the position that “our inquiry
is really into the intent of Congress,” id., and that the
evidence of congressional intent did not support the
interpretation held by the Commissioner.
No. 11-2215 19
Often, perhaps even usually, when courts apply Auer
deference, they conclude that an agency’s interpretation
of its own regulation is permissible. See, e.g., Chase
Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 881-82 (2011)
(applying Auer deference to the Federal Reserve Board’s
interpretation of its regulation); United States v. Larionoff,
431 U.S. 864, 872-73 (1977) (deferring to Navy’s inter-
pretation of Department of Defense regulations
because they were “not plainly inconsistent with the
wording of the regulations”). But “usually” is not “al-
ways,” and so it is not hard to find cases when a court
has found that an agency’s interpretation goes beyond
the bounds of the regulation, even when the agency’s
language did not originate with Congress. See, e.g.,
Pettibone Corp. v. United States, 34 F.3d 536, 541 (7th Cir.
1994) (refusing to defer to IRS’s interpretation of its own
regulation and emphasizing that an agency’s power to
interpret its regulations “must not be confused with a
power to rewrite”); Public Citizen, Inc. v. Mineta, 343
F.3d 1159, 1166 (9th Cir. 2003) (refusing to defer to the
National Highway Traffic Safety Administration’s under-
standing of when one of its rules was issued); Municipal
Resale Serv. Customers v. FERC, 43 F.3d 1046, 1053 (6th
Cir. 1995) (refusing to defer to the Federal Energy Reg-
ulatory Commission’s interpretation of one of its regula-
tions).
The majority believes that the Tenth Circuit’s Martinez
decision, supra, 602 F.3d 1166, which held that at-
tempted robbery is a crime of violence under the Guide-
lines even though it is not under the ACCA, supports its
result. But Martinez’s holding is premised on an idea
20 No. 11-2215
that this court has decisively rejected and that even the
majority does not endorse: that courts should treat the
ACCA and Guidelines language differently because the
Sentencing Commission “chose to use a different term—
crime of violence, rather than violent felony”— in its caption.
Id. at 1173 (emphasis in original). Martinez actually high-
lights the inconsistency of this approach: the Tenth
Circuit found that under the ACCA, attempted robbery
does not “present[] a serious potential risk of physical
injury to another,” James, 550 U.S. at 198, but when that
same definition is copied into the Guidelines, somehow
attempted robbery does present a serious enough risk.
Those two conclusions, drawn from the identical text,
are inconsistent. Nothing in the different captions
affects the proper way to assess risk. The distinction that
Martinez tries to draw is unconvincing in the opinion, and
is equally unconvincing as an agency interpretation.
Indeed, there are signs on the horizon that the Supreme
Court may be about to revisit Auer and endorse a more
skeptical review of agency interpretations of their own
regulations. The Court has before it the case of Christopher
v. SmithKline Beecham Corp., No. 11-204, cert. granted,
Nov. 28, 2011. The first question presented in Christopher
is “[w]hether deference is owed to the Secretary [of La-
bor]’s interpretation of the Fair Labor Standards Act’s
outside sales exemption and related regulations.” This
case arises against the backdrop of criticism of the Auer
rule from Justices Scalia and Thomas. In Talk America,
Inc. v. Michigan Bell Tel. Co., 131 S. Ct. 2254 (2011), Justice
Scalia wrote in a concurring opinion that “deferring to an
agency’s interpretation of its own rule encourages the
No. 11-2215 21
agency to enact vague rules which give it the power,
in future adjudications, to do what it pleases. . . . We
have not been asked to reconsider Auer in the present
case. When we are, I will be receptive to doing so.” Id.
at 2266; see also Thomas Jefferson University v. Shalala,
512 U.S. 504, 524-25 (1994) (Thomas, J., dissenting and
criticizing the application of Auer/Bowles deference); John
F. Manning, Constitutional Structure and Judicial Deference
to Agency Interpretations of Agency Rules, 96 C OLUM . L.
R EV. 612, 615 (1996). All of this said, I recognize that
formal changes to Auer lie down the road, if they take
place at all. My view rests squarely on the law as it cur-
rently stands. I take note of Christopher only to make
the point that it cannot weaken, and may strengthen, the
points I am making here.
This debate between an agency’s adoption of formal
regulations (or, as here, the Guidelines) and its inter-
pretations of those regulations is not an exercise in
empty formality. There is a significant difference
between the procedures that the Sentencing Commission
uses when it promulgates the Guidelines and those that
it uses when it writes commentary or policy statements.
See 28 U.S.C. § 994(p); USSC Rules of Practice and Pro-
cedure 2-3 (2007), available at http://www.ussc.gov/
Meetings_and_Rulemaking/Practice_Procedure_Rules.pdf.
Proposed Guidelines or changes to Guidelines must be
submitted to Congress no later than May 1 of a calendar
year, where they must sit for 180 days to give Congress
an opportunity to modify or disapprove them. In con-
trast, “[a]mendments to policy statements and com-
mentary may be promulgated and put into effect at any
22 No. 11-2215
time.” Id. at 3 (Rule 4.1). The Commission must comply
with the notice and comment rules in section 553 of the
Administrative Procedures Act when promulgating
Guidelines, but it is under no such obligation when
promulgating commentary and policy statements. Id.
(Rule 4.3). This calls to mind the distinction that the
Supreme Court has drawn between Chevron deference
(owed to regulations issued under formal notice-and-
comment procedures) and Mead/Skidmore consideration
for things like interpretations contained in policy state-
ments, agency manuals, and enforcement guidelines.
See United States v. Mead, 533 U.S. 218, 234 (2001); Skidmore
v. Swift & Co., 323 U.S. 134 (1944).
When an agency like the Sentencing Commission uses
a regulation as a springboard for an “interpretation”
that goes beyond the boundaries of the original regula-
tion, Auer and Stinson tell us that it has gone too far. That
is exactly what the Sentencing Commission did here,
when it decided that the phrase “presents a serious
potential risk of physical injury to another” could be
stretched to include Indiana’s inchoate offense of con-
spiracy to commit robbery. In my opinion, it cannot, and
so I would find that Raupp is entitled to be resentenced
without being classified as a career offender. I therefore
respectfully dissent.
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