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
A MENDED O PINION A PRIL 12, 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 added two
offense levels under the Sentencing Guidelines after
concluding that Raupp has at least two other convictions
for crimes of violence. U.S.S.G. §2K2.1(a)(2). Application
Note 1 to §2K2.1 says that “crime of violence” has the
same meaning there as it does in the career-offender
2 No. 11-2215
Guideline, U.S.S.G. §4B1.1, and the definitional provisions
of §4B1.2 and its Application Note 1. This appeal, from
the sentence of 100 months’ imprisonment, presents a
single question: Whether a conspiracy to commit rob-
bery 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 con-
victed under Ind. Code §35-41-5-2 of conspiring to
violate Ind. Code §35-42-5-1, Indiana’s robbery statute.
Application Note 1 to §4B1.2 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tends that it has been superseded by Begay v. United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 purpose-
ful, 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
No. 11-2215 3
rather than an aggressive deed. Although James v. United
States, 550 U.S. 192 (2007), holds that attempted 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 conspiracy 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 §4B1.2 must be under-
stood identically. We have held that, when the Guidelines
and the Armed Career Criminal Act use the same lan-
guage, 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 defini-
tion in §924(e)(2)(B). It follows, Raupp contends, 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
betreated like attempt (and for that matter aiding and
abetting) under both the statute and the Guidelines.
4 No. 11-2215
We need not decide whether that is so. James reserved
the 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
sentenced under the Guidelines. That makes a difference.
Woods and Templeton hold that identical language
implies identical interpretation, but the Guidelines con-
tain some language that is not in the statute. The applica-
tion 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 Commission
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 ar-
gument would be sunk. Likewise the Commission
could have added offense levels for anyone whose
record includes 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 Com-
mission 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 understanding
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
commentary (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 Commission itself has the first respon-
sibility to formulate and announce. In these re-
spects this type of commentary is akin to an
agency’s interpretation of its own legislative
rules. As we have often stated, provided an
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.”
Stinson v. United States, 508 U.S. 36, 44–45 (1993) (most
internal citations omitted without indication). Thus the
6 No. 11-2215
Supreme Court treats application notes as authoritative
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, 668 F.3d
516, 520 (7th Cir. 2012); 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
crimes of violence. Is this note inconsistent with any-
thing 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) (considering, 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, 132 S. Ct. 1166, 1172–73
(2012) (treating the offense of aiding and abetting a viola-
8 No. 11-2215
tion of tax laws as having the same attributes 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 Guide-
lines’ 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 §4B1.1 and §4B1.2 imple-
ment §924(e). If that were so, then our interpretation
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) unde-
fined, though it did furnish a list of qualifying drug
No. 11-2215 9
offenses. Section 994(h) does not cross-reference §924(e).
Nor does either §924(e) or §994(h) tell the Sentencing
Commission how to deal with enhancements for felons
who later possess guns, the subject of §2K2.1.
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
application notes that contradict the text of the Guide-
line, 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.” Both §4B1.1
and §2K2.1(a)(2) raise the offense level without setting
a mandatory minimum. They are just Guidelines, so the
judge is free to impose a sentence outside the Commis-
sion’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 robbery does not
imply the same level of dangerousness as a conviction
for robbery, and to seek a lower sentence on that ac-
count. But he does not assert that the district judge mis-
understood 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
the district court, in applying U.S.S.G. § 2K2.1(a)(2),
correctly added two offense levels under the U.S. Sen-
tencing Guidelines on the ground that Raupp had two
previous convictions for crimes of violence. That guide-
line stipulates that the meaning of the term “crime of
violence” for purposes here is the same as that found
in § 4B1.2(a) and Application Note 1 of the Commentary
to § 4B1.2. The question before us concerns what that
definition properly covers and whether it includes
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 altogether. I am persu-
aded 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 guidelines
sentence, the district court considered whether he had
two previous convictions for crimes of violence, which
No. 11-2215 11
would add two offense levels to the guidelines calcula-
tion. U.S.S.G. § 2K2.1(a)(2). Raupp concedes that he
has one, but he does not have two unless the con-
spiracy conviction counts. And so the question becomes
whether that offense meets the definition set forth in
the Guidelines. To answer that, the application notes to
§ 2K2.1 direct us to turn to the definition of “crime of
violence” in § 4B1.2 (which also applies to sentencing
under the career-offender provisions of § 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 extor-
tion, involves the use of explosives, or other-
wise involves conduct that presents a serious
potential risk of physical injury to another.
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 convic-
tions “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—
12 No. 11-2215
(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 addi-
tion of the phrase “of a dwelling” after the word “bur-
glary”; and (3) the addition of the word “the” before the
word “use” in subpart two. To say that these are incon-
sequential 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.,
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.”).
No. 11-2215 13
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 con-
spiracy. See Woods, 576 F.3d at 405-06. Conspiracy cannot
be used as a predicate for his guidelines calculation,
then, unless it falls within the “residual clause.”
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
14 No. 11-2215
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 princi-
ples 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 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 at-
tempted 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
No. 11-2215 15
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 2-3 (conviction 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
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 concluded 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 defendant than as to the completed crime, it
16 No. 11-2215
would not include conspiracies to commit a ‘crime of
violence’ within the definition of ‘crime of violence.’ ”).
The majority postulates that the Sentencing Commission
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 Sentencing
Guidelines should “be treated as an agency’s interpreta-
tion of its own legislative rule.” Stinson v. United States,
508 U.S. 36, 44 (1993). And, “provided an agency’s inter-
pretation 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 incon-
sistent 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.
No. 11-2215 17
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 § 4B1.2 of the Guidelines was
adopted by the Sentencing Commission in its 1989 amend-
ments, 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 Guidelines’ 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 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 deci-
sions because they concern the statute; they do not
concern any Guideline. Ante at 3-4. 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
18 No. 11-2215
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.
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) (ap-
plying 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 interpreta-
tion of Department of Defense regulations because they
were “not plainly inconsistent with the wording of the
regulations”). But “usually” is not “always,” 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
No. 11-2215 19
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 re-
write”); Public Citizen, Inc. v. Mineta, 343 F.3d 1159, 1166
(9th Cir. 2003) (refusing to defer to the National High-
way Traffic Safety Administration’s understanding 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 Regulatory
Commission’s interpretation of one of its regulations).
The majority believes that the Tenth Circuit’s
Martinez decision, supra, 602 F.3d 1166, which held
that attempted robbery is a crime of violence under the
Guidelines even though it is not under the ACCA,
supports its result. But Martinez’s holding is premised
on an idea that this court has decisively rejected and
that even the majority does not endorse: that courts
should treat the ACCA and Guidelines language differ-
ently 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 highlights 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
20 No. 11-2215
risk. The distinction that Martinez tries to draw is uncon-
vincing 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 Labor]’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 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 currently stands. I take
note of Christopher only to make the point that it
No. 11-2215 21
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 interpreta-
tions 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 Procedure
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 contrast,
“[a]mendments to policy statements and commentary
may be promulgated and put into effect at any time.” Id.
at 3 (Rule 4.1). The Commission must comply with
the notice and comment rules in section 553 of the Ad-
ministrative Procedures Act when promulgating Guide-
lines, but it is under no such obligation when prom-
ulgating commentary and policy statements. Id. (Rule
4.3). This calls to mind the distinction that the Su-
preme 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).
22 No. 11-2215
When an agency like the Sentencing Commission uses
a regulation as a springboard for an “interpretation” that
goes beyond the boundaries of the original regulation,
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 conspiracy
to commit robbery. In my opinion, it cannot, and so I
would find that Raupp is entitled to be resentenced.
I therefore respectfully dissent.
4-12-12