Whether the district court and the First Circuit erred by declining to apply Application Note One as written

QUESTION PRESENTED David Lopez pled guilty to Conspiracy to Conduct Enterprise Affairs through a Pattern of Racketeering Activity in violation of 18 U.S.C. §1962(d). USSG § 2E1.1 applies to RICO sentencing. Application Note One to USSG § 2E1.1 provides that when there is more than one underlying offense, and the offenses are discrete RICO violations, each underlying offense is treated as if contained in a separate count of conviction when determining the base offense level for each predicate RICO violation. At sentencing, it was undisputed Mr. Lopez deserved a_ leadership enhancement for one of the predicate crimes, but not the other. Accordingly, Probation recommended that Mr. Lopez receive a leadership enhancement in determining the base offense level for one of the underlying crimes, but not the other. The district court rejected Probation’s text-based interpretation of Application Note One because it did not “make sense.” The First Circuit affirmed because holding otherwise would lead to “incongruous results.” Did the district court and the First Circuit err by declining to apply Application Note One as written? ii