Whether Application Note 3(A)(ii) to U.S.S.G. § 2B1.1 is an impermissible addition to and/or modification of this guideline that is outside of the authority granted to the Sentencing Commission, is not entitled to deference, and therefore should not be applied

QUESTION PRESENTED This case involves the proper application of this Court’s decision in Kisor v. Wilkie, 1389 S. Ct. 2400 (2019), in interpreting the United States Sentencing Guidelines. The issue is whether to give deference to Guideline commentary that expands the scope of the text of a Guideline. In calculating the advisory guideline range applicable to a sentence following conviction of numerous economic offenses including “ Larceny, Embezzlement, And Other Forms Of Theft; Offenses Involving Stolen Property; Property Damage Or Destruction; Fraud And Deceit; Forgery; Offenses Involving Altered Or Counterfeit Instruments Other Than Counterfeit Bearer Obligation Of The United States” the sentencing court must determine the amount of loss attributed to the offense. U.S.S.G. § 2B1.1(b)(1). Application Note 3 to U.S.S.G. § 2B1.1 sets out rules for determining the amount of “loss.” In relevant part, this Application Note states: 3. Loss Under Subsection (b)(1).—This application note applies to the determination of loss under subsection (b)(1). (A) General Rule.—Subject to the exclusions in subdivision (D), loss is the greater of actual loss or intended loss. G) Actual Loss.—“Actual loss” means the reasonably foreseeable pecuniary harm that resulted from the offense. Gi) Intended Loss.—“Intended loss” (I) means the pecuniary harm that the defendant purposely sought to inflict; and (II) includes intended pecuniary harm that would have been impossible or unlikely to occur (e.g., as in a government sting operation, or an insurance fraud in which the claim exceeded the insured value). i The question presented is: Whether Application Note 3(A)(ii), which requires including “intended loss” in the loss amount calculation, is an impermissible addition to and/or modification of this guideline that is outside of the authority granted to the Sentencing Commission, is not entitled to deference, and therefore should not be applied. ii