Whether the Sentencing Commission may amend the commentary to the Sentencing Guidelines to create new categories of conduct that increase sentences without following the established process for drafting and approving sentencing guidelines

QUESTIONS PRESENTED The Sentencing Guidelines in § 2K2.1 setting forth provisions concerning unlawful possession of firearms and specific offense characteristics provide for increases in the offense level where the offense involves three or more "firearms". Precedent in a number of circuits holds that "inert" grenades containing no explosives are not "destructive devices" and therefore do not qualify as "firearms" which can increase the offense level. The questions are: 1. May the commentary to the guidelines be amended to describe a new category of conduct, distinct from possession, by which firearms "sought to be obtained" may be counted for sentence enhancement purposes where the underlying guideline has not been so amended and makes no provision for "attempted" possession. 2. May the Sentencing Commission amend guideline commentary to create new offenses carrying higher sentences without following the established process for drafting and approval of sentencing guidelines by the U.S. Sentencing Commission and Congress?