Does the Sentencing Commission's commentary impermissibly expand the unambiguous definition of 'crime of violence' in U.S.S.G. § 4B1.2 to include attempts and conspiracies to commit crimes of violence?

QUESTION PRESENTED This Court has applied so-called Seminole Rock or Auer deference, developed in the context of an agency’s interpretation of its regulations, to commentary the United States Sentencing Commission issues to is noticeand-comment guidelines. In Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019), the Court clarified that there cannot be any Seminole Rock deference unless a court first determine that a regulation is “genuinely ambiguous.” Section 4B1.2 of the guidelines defines “crime of violence” to “mean” certain enumerated offenses, or offenses that have as an element the use, attempted use or threatened use of physical force. The commentary states this also includes attempts and conspiracies to commit crimes of violence. The circuits are split 8-4 as to whether this commentary is entitled to deference, with many adhering to their pre-Kisor precedent that it is and refusing to reconsider that precedent. The question presented here is: Does the Sentencing Commission’s commentary impermissibly expand the unambiguous definition of “crime of violence” in U.S.S.G. § 4B1.2 to include attempts and conspiracies to commit crimes of violence? i STATEMENT OF RELATED CASES United States v. Martinez, No. 18-cr-00522-WJM (D. Colo.) Judgment entered October 16, 2019. United States v. Martinez, No. 19-1389 (10th Cir.) Judgment entered June 23, 2021; rehearing denied December 14, 2020. ii