Anchoring Criminal History to the Offense of Conviction: Third Circuit Rejects Relevant-Conduct Start Date for §4A1.2(e) Look-Back in United States v. Josey

Anchoring Criminal History to the Offense of Conviction: Third Circuit Rejects Relevant-Conduct Start Date for §4A1.2(e) Look-Back in United States v. Josey

Introduction

In a precedential opinion that will materially reshape criminal history calculations within the Third Circuit, the Court of Appeals held that the “commencement of the instant offense” in U.S.S.G. § 4A1.2(e) refers exclusively to the start of the conduct comprising the offense of conviction—and does not include “relevant conduct” as defined in U.S.S.G. § 1B1.3. Writing for the panel, Judge Krause applied the Supreme Court’s Kisor v. Wilkie framework, as adopted in the Third Circuit’s en banc decision in United States v. Nasir, to reject Sentencing Commission commentary that would have expanded the look-back anchor. The ruling narrows the time window for counting prior sentences in many cases and clarifies the proper role of Guidelines commentary in Chapter Four criminal history computations.

The case arose from a federal SORNA prosecution of Xavier Josey, who pleaded guilty to failing to update his sex-offender registration after moving to Pennsylvania. At sentencing, the district court—relying on “relevant conduct” and the Sixth Circuit’s unpublished decision in United States v. Caldwell—pushed the criminal history look-back earlier to Josey’s 2019 state-law verification lapse in New York, thereby including three otherwise stale prior sentences and increasing his advisory range from 15–21 months to 24–30 months. The Third Circuit vacated and remanded, holding that the plain text of § 4A1.2(e) forecloses that approach.

Summary of the Opinion

  • Holding: The phrase “commencement of the instant offense” in U.S.S.G. § 4A1.2(e) is unambiguous. It means the start of the conduct comprising the offense of conviction. Courts may not use “relevant conduct” to anchor the look-back period for counting prior sentences.
  • Deference: Under Nasir (applying Kisor), courts defer to Guidelines commentary only if the Guideline’s text is genuinely ambiguous. Because § 4A1.2(e) is not ambiguous, its commentary (Application Note 8), which purports to include “relevant conduct,” receives no deference.
  • Application: For a SORNA offense under 18 U.S.C. § 2250(a), the offense “commences” when the defendant first commits the culpable omission—knowingly failing to register or update—after qualifying interstate travel. For Josey, that date was in January 2023, not 2019.
  • Result: The three prior sentences imposed in 2010 and 2011 fell outside the 10-year look-back of § 4A1.2(e)(2) and should not have been counted. The sentence was vacated and the case remanded for resentencing.

Factual and Procedural Background

In 2013, Josey was convicted in North Carolina of indecent liberties with a child, triggering federal registration obligations under SORNA (34 U.S.C. § 20913). He kept his federal registration updated through 2018 while in New York. New York law also imposed annual verification obligations; Josey complied in 2018 but failed to verify in 2019 and thereafter.

Josey moved to Pennsylvania in January 2023 but did not update his SORNA registration within 3 days of changing residence/employment. He pleaded guilty to 18 U.S.C. § 2250(a). The Probation Office calculated a criminal history score of 13 (Category VI), using January 2019 (the 2019 New York verification lapse) as the “commencement” of the instant offense based on relevant conduct. That allowed inclusion of three prior sentences imposed in 2010 and 2011. Josey objected that § 4A1.2(e)(2) allows counting only prior sentences imposed within 10 years of the “commencement of the instant offense,” which, he argued, began in 2023. The district court adopted the Probation Office’s view and sentenced him at the bottom of the 24–30 month range. He appealed.

Analysis

Precedents Cited and Their Roles

  • Kisor v. Wilkie, 588 U.S. 558 (2019): The Supreme Court tightened Auer deference, holding courts may defer to an agency’s interpretation of its own regulation only if the regulation is genuinely ambiguous after using traditional tools of construction, and the agency’s interpretation is reasonable and reflects fair and considered judgment.
  • United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc): Applied Kisor to the Sentencing Guidelines, holding that commentary is not binding unless the Guideline is genuinely ambiguous. Established a three-step framework for whether to defer to commentary.
  • United States v. Chandler, 104 F.4th 445 (3d Cir. 2024): Clarified that commentary may not “change the meaning” of unambiguous Guideline text; it can only clarify an identified ambiguity.
  • United States v. Metro, 882 F.3d 431 (3d Cir. 2018) and Stinson v. United States, 508 U.S. 36 (1993): Pre-Kisor/Stinson regime where commentary was treated as authoritative unless plainly erroneous. Josey explains that Kisor/Nasir supersede that broad deference.
  • United States v. Caraballo, 88 F.4th 239 (3d Cir. 2023) and Da Silva v. Att’y Gen., 948 F.3d 629 (3d Cir. 2020): Support using ordinary meaning tools (including contemporaneous dictionaries) to construe Guideline text.
  • United States v. Abreu, 32 F.4th 271 (3d Cir. 2022): Notes that terms may carry different meanings across Guidelines and that definitional commentary is not universally transferrable; reinforces careful textual analysis.
  • United States v. Caldwell, 746 F. App’x 518 (6th Cir. 2018): Unpublished decision treating state verification violations as part of the same course of conduct as a federal SORNA failure. The district court relied on Caldwell; the Third Circuit declined to follow it, both because the text of § 4A1.2 controls and because Caldwell leaned on § 1B1.3 commentary.
  • Carr v. United States, 560 U.S. 438 (2010): SORNA requires travel followed by failure to register; the travel element is a jurisdictional predicate that does not itself complete the crime. Josey uses Carr to show that a SORNA offense “commences” with the failure-to-update after travel.
  • Rehaif v. United States, 588 U.S. 225 (2019) and City of Grants Pass v. Johnson, 603 U.S. 520 (2024): Illustrate the distinction between status and conduct; mere status does not commence the offense.
  • United States v. Kayfez, 957 F.2d 677 (9th Cir. 1992) and United States v. Eske, 925 F.2d 205 (7th Cir. 1991): Address use of dates in indictments versus other record sources to fix the start date for look-back calculations; Josey notes the issue but finds it immaterial to the outcome here.
  • United States v. McIntosh, 124 F.4th 199 (3d Cir. 2024): Confirms de novo review for Guideline interpretation.

Legal Reasoning

1) Nasir/Kisor framework forecloses deference to commentary absent genuine textual ambiguity

The Court begins by restating the post-Kisor rule of limited deference to commentary: courts must first exhaust the traditional tools of construction (text, structure, history, purpose). Only if the Guideline is genuinely ambiguous may commentary be consulted—and then only if the commentary reasonably clarifies, rather than changes, the Guideline’s meaning. Because § 4A1.2(e)’s phrase “commencement of the instant offense” is unambiguous, Application Note 8’s attempt to import relevant conduct receives no deference.

2) Text: “Commencement of the instant offense” has a single reasonable meaning

  • “Commence” in contemporaneous legal dictionaries means to initiate by performing the first act; it focuses on the defendant’s first culpable act of the particular venture—not preparatory or similar conduct.
  • “Instant offense” uses “instant” to denote the immediate or present offense under consideration (the offense of conviction), distinguishing it from prior or other offenses. The Court notes that even § 1B1.3 itself recognizes that relevant conduct may be distinct from “the instant offense of conviction.”

3) Structure and history: Chapter Four’s criminal history rules are mechanical and exclude “real offense” inputs

Drawing on Justice Breyer’s account of the Guidelines’ “charge offense” versus “real offense” compromise, the Court explains that Chapters Two and Three incorporate relevant conduct expressly through specific offense characteristics and cross-references. By contrast, Chapter Four (criminal history) is designed as a mechanical calculation based on prior sentences. Section 1B1.3(a) applies relevant-conduct rules to Chapters Two and Three, but § 1B1.3(b) expressly directs that Chapter Four and Five factors “shall be determined on the basis of the conduct and information specified in the respective guidelines.” The natural implication: relevant conduct is out at the criminal-history stage unless the text of Chapter Four says otherwise—which § 4A1.2(e) does not.

The architecture is reinforced by § 4A1.3, which provides a venue for “real offense” considerations via upward or downward departures when the mechanical criminal history category substantially misrepresents the defendant’s true criminal history. This further confirms that the initial criminal history calculation under § 4A1.2 is not the place for relevant-conduct expansion.

4) Application to SORNA’s elements: When does a § 2250(a) offense “commence”?

  • Element 1: The defendant must be required to register (status). Status does not commence the offense.
  • Element 2: The defendant must have traveled in interstate or foreign commerce (jurisdictional predicate). Travel alone does not start the offense; the crime targets the failure to update after travel (Carr).
  • Element 3: The defendant must knowingly fail to register or update as required, within 3 days of a qualifying change (34 U.S.C. § 20913(c)). That failure—after travel—is the first culpable act that “commences” the offense.

For Josey, the record placed his move/employment change in Pennsylvania in January 2023. Thus, the “commencement” of his offense occurred three days after his first qualifying change following his arrival in Pennsylvania (earliest date indicated by the PSR: January 13, 2023). Either way, the look-back reaches only to January 2013, and the 2010 and 2011 prior sentences are out.

5) Error below: Misplaced reliance on § 1B1.3 and Caldwell

The district court focused on whether Josey’s New York annual-verification lapse was part of the same course of conduct as his federal SORNA failure, citing Caldwell. But the Third Circuit explains that this “relevant conduct” inquiry should never have occurred in the first place for a § 4A1.2(e) look-back computation. The relevant Guideline’s text controls, and it points to the offense of conviction—not other similar or related conduct.

The Court notes a further tension: although the district court attempted to avoid deference to § 1B1.3 commentary (per Nasir), Caldwell itself relied on that commentary; following Caldwell thus implicitly imported the commentary despite Nasir.

Impact and Implications

Within the Third Circuit (PA, NJ, DE, VI)

  • Criminal history calculations under § 4A1.2(e) must anchor the look-back period to the start of the offense of conviction, not to relevant conduct. Probation Offices and district courts should cease using Application Note 8 to § 4A1.2 to reach back to earlier “similar” conduct.
  • For SORNA prosecutions, the commencement date will typically be three days after the first qualifying change (residence, employment, student status) following the interstate travel, not any earlier state-law registration or verification failure.
  • Expect more defendants to fall into lower Criminal History Categories when older sentences (10+ years for sentences under 13 months; 15+ years for longer sentences) can no longer be shoehorned into the look-back via “relevant conduct.”
  • The government retains tools to address under-representative criminal history via § 4A1.3 departures and 18 U.S.C. § 3553(a) variances, but not by stretching the look-back anchor.

National context and possible developments

  • The opinion squarely rejects the approach reflected in the Sixth Circuit’s unpublished Caldwell decision. While Caldwell predated Kisor/Nasir’s recalibration of commentary deference, Josey puts the Third Circuit firmly in the camp that reads § 4A1.2(e) as unambiguous.
  • The Sentencing Commission could amend the text of § 4A1.2(e) if it wishes to incorporate relevant conduct into the look-back start. Unless and until that happens, commentary cannot expand the Guideline’s scope in the Third Circuit.
  • Defense counsel should revisit cases where PSRs used “relevant conduct” to predate commencement for criminal history purposes. Future litigation may address how to fix commencement dates for continuing offenses (e.g., conspiracies) or when the indictment and PSR give different dates; Josey flags but does not resolve that methodological question.

Complex Concepts Simplified

  • Criminal history “look-back” period: Under § 4A1.2(e), a court counts prior sentences only if they were imposed within a set period measured back from the “commencement” of the current (“instant”) offense. For prior sentences over 13 months, the period is 15 years; otherwise, it is 10 years.
  • “Instant offense” vs. “relevant conduct”: The “instant offense” is the specific offense of conviction for which the defendant is being sentenced. “Relevant conduct” captures additional acts or omissions related to the offense (e.g., same course of conduct) and is used to adjust the offense level in Chapters Two and Three. Josey holds that “relevant conduct” does not affect the criminal history look-back in Chapter Four unless the text says so.
  • Kisor/Nasir deference rule: Courts don’t automatically follow Sentencing Commission commentary. They first ask whether the Guideline’s text is genuinely ambiguous. If not, the commentary cannot expand or alter the meaning of the Guideline.
  • SORNA § 2250(a) elements: (1) the defendant is required to register (status), (2) the defendant traveled in interstate or foreign commerce (jurisdictional predicate), and (3) the defendant knowingly failed to register or update as required. The offense “commences” with the culpable failure after travel.
  • Status vs. conduct: Merely having a legal status (e.g., being a registrant) does not commence an offense; criminal liability turns on an action or omission that violates the law.

Practice Pointers

  • For defense: When contesting the inclusion of older priors, fix the commencement date by reference to the first culpable act of the offense of conviction. In SORNA cases, identify the first qualifying change after interstate travel and add three days. Cite Josey to exclude relevant conduct from the look-back anchor.
  • For prosecution: If the mechanical criminal history category underrepresents risk or recidivism because older priors are excluded, consider a § 4A1.3 upward departure or a § 3553(a) variance, rather than trying to expand § 4A1.2(e) via relevant conduct.
  • For probation: Avoid relying on § 4A1.2, Application Note 8 to incorporate § 1B1.3’s relevant-conduct principles when setting the commencement date. Use offense-of-conviction facts and elements to determine the start.

Conclusion

United States v. Josey establishes a clear and administrable rule: the criminal history look-back under § 4A1.2(e) begins with the start of the offense of conviction—not with acts swept in via “relevant conduct.” Grounded in the text, structure, history, and purpose of the Guidelines and policed by the Kisor/Nasir deference framework, the decision curtails the reach of commentary when Chapter Four’s mechanical computations are at issue. Practically, Josey will lower criminal history categories in cases where courts had been backdating the look-back period using similar or related conduct. The opinion also offers a useful model of disciplined Guideline interpretation and underscores the Commission’s prerogative—if it wishes—to address policy choices by amending text rather than commentary.

Case Details

Year: 2025
Court: Court of Appeals for the Third Circuit

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