Whether courts may defer to guidelines commentary without first determining that the underlying Guideline is genuinely ambiguous

Questions Presented for Review In Stanson v. United States, 508 U.S. 36 (1993), held “that commentary in the [United States Sentencing Commission’s] Guidelines Manual that interprets ... a guideline is authoritative unless it . . . is inconsistent with, or a plainly erroneous reading of, that guideline.” /d at 38. Kisor v. Wilke, 139 S. Ct. 2400 (2019), added the wrinkle that “agencies may issue binding interpretations of their own regulations only when those regulations are “genuinely ambiguous.” /d. at 2408. The courts of appeals are profoundly split over whether the Sentencing Guidelines career offender definition of controlled substance offense includes inchoate offense that are added to the definition via commentary. The First, Second, Seventh, Eighth, and Eleventh Circuits say yes; the Third, Fourth, Sixth and D.C. Circuits say no. The Fifth Circuit has pending en banc proceeding addressing the issue The questions presented are: 1. Whether courts may defer to guidelines commentary without first determining that the underlying Guideline is genuinely ambiguous. . 2. Whether the Sentencing Commission can use commentary to add inchoate offenses drug offenses to the career offender guideline 1