Application Note 1 Remains Authoritative: Upholding Auer Deference to Sentencing Guidelines Commentary After Kisor and Loper Bright

Introduction

United States v. Raymond Poore is a Seventh Circuit decision addressing whether the Sentencing Commission’s commentary—specifically Application Note 1 to U.S.S.G. § 4B1.2—retains its authoritative status under Stinson v. United States despite the Supreme Court’s recent decisions in Kisor v. Wilkie and Loper Bright Enterprises v. Raimondo.

Background:

Defendant-Appellant: Raymond Poore, a felon convicted of unlawful firearm possession under 18 U.S.C. § 922(g)(1).
Plea and Sentencing: Poore pleaded guilty after a high-speed chase in Madison, Wisconsin, and was found to have a loaded handgun.
Sentencing Issue: Whether Poore’s prior state conviction for aiding and abetting substantial battery—an inchoate offense—qualified as a “crime of violence” under the 2021 Guidelines and thus triggered a higher base offense level.
Key Question: Did the district court err by deferring to Application Note 1, which defines “crime of violence” to include inchoate offenses, or must that commentary be set aside in light of Kisor and the overruling of Chevron in Loper Bright?

Summary of the Judgment

The Seventh Circuit unanimously affirmed the district court’s sentence. It held that:

Stinson v. United States remains binding: The Commission’s commentary continues to warrant Auer (formerly Seminole Rock) deference unless it is plainly erroneous or inconsistent with the guideline itself.
Kisor did not overrule or diminish Stinson: Even after Kisor’s cabining of agency deference, the unique status of the Sentencing Commission commentary justifies continued deference.
Loper Bright’s overturning of Chevron does not disturb Auer/Stinson: The Supreme Court did not eliminate deference to an agency’s interpretation of its own legislative rules, and Poore offered no direct authority requiring reconsideration.
Application Note 1 remains authoritative: Poore’s prior conviction for aiding and abetting substantial battery qualifies as a “crime of violence” under the 2021 Guidelines commentary—and the base offense level of 20 was correctly applied.

Analysis

Precedents Cited

Stinson v. United States, 508 U.S. 36 (1993): Established that the Sentencing Commission’s commentary is “authoritative” and entitled to binding weight unless plainly erroneous or inconsistent with the Guidelines.
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) & Auer v. Robbins, 519 U.S. 452 (1997): Gave rise to the so-called Auer deference for agency interpretations of their own regulations.
Kisor v. Wilkie, 588 U.S. 558 (2019): Limited Auer deference by requiring “genuine ambiguity” and reasonableness, but did not overrule Stinson.
United States v. White, 97 F.4th 532 (7th Cir. 2024): Rejected the argument that Kisor undercuts Stinson’s application to Sentencing Guidelines commentary, affirming continued deference to Application Note 1.
Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Overruled Chevron v. NRDC and held that courts may not defer to agency interpretations of statutes simply because the underlying statute is ambiguous.
United States v. Ponle, 110 F.4th 958 (7th Cir. 2024): Confirmed that Loper Bright’s rejection of Chevron does not affect Stinson/Auer deference.
Mallory v. Norfolk S. Ry. Co., 600 U.S. 122 (2023) & Agostini v. Felton, 521 U.S. 203 (1997): Warned against overruling Supreme Court decisions by implication.
Buchmeier v. United States, 581 F.3d 561 (7th Cir. 2009) (en banc): Discouraged abrupt shifts in entrenched circuit splits.

Legal Reasoning

The court’s reasoning unfolds in three stages:

Scope of Stinson v. United States:
In Stinson, the Supreme Court analogized Guidelines commentary to an agency’s interpretation of its own legislative rule, meriting controlling weight unless plainly erroneous. Although Kisor tightened the standards for Auer deference in the regulatory context, it did not address or overrule Stinson.
White and the Effect of Kisor:
In White, the Seventh Circuit considered whether Kisor undermined Stinson. It concluded:
- The Sentencing Commission is not an executive agency but an independent judicial‐branch body—its commentary occupies a unique niche.
- Stinson already distinguished Auer from Chevron; the Supreme Court in Stinson refused to apply Chevron deference to commentary.
- There is no direct overruling of Stinson in Kisor, and the Court’s precedent cautions against implied overruling.
Loper Bright and Post-Chevron Landscape:
Although Loper Bright eliminated Chevron deference, it neither mentioned nor modified Auer or Stinson. The Seventh Circuit in Ponle reaffirmed that Loper Bright’s reasoning does not extend to commentary on sentencing guidelines. Poore’s attempt to force a single unified “deference overhaul” fails to acknowledge the distinct doctrinal paths of Chevron, Auer, and Stinson.

Impact

This decision cements several important principles:

Sentencing guidelines commentary remains binding law unless plainly erroneous or inconsistent with the guideline text, even in the wake of Kisor and the demise of Chevron.
Defendants will face continued scrutiny under Application Note 1 where inchoate or accomplice liability offenses are at issue.
The circuit split over the status of Application Note 1 remains firmly divided; Seventh Circuit precedent upholds commentary as authoritative.
Future appellate challenges to sentencing guidelines must confront the high bar of overruling Stinson directly—an unlikely prospect absent a clear Supreme Court directive.

Complex Concepts Simplified

Auer (Seminole Rock) Deference: Courts must give an agency’s (or commission’s) interpretation of its own regulations controlling weight, unless that interpretation is plainly erroneous or inconsistent with the regulation itself.
Chevron Deference: Courts defer to an agency’s reasonable interpretation of an ambiguous statute, unless Congress has directly spoken to the issue; now overruled by Loper Bright.
Inchoate Offenses: Crimes such as attempt, conspiracy, and aiding-and-abetting; Application Note 1 treats these as “crimes of violence” when tied to violent offenses.
“Crime of Violence” Under U.S.S.G. § 4B1.2: Defines enhancements for repeat offenders; the commentary broadens the term to include inchoate participation.
Circuit Split: Divergent federal appeals courts have disagreed over whether Application Note 1 deserves binding force; the Seventh Circuit remains on the side of deference.

Conclusion

United States v. Raymond Poore reaffirms the enduring authority of the Sentencing Commission’s commentary under Stinson even after Kisor and Loper Bright. In doing so, the Seventh Circuit preserves a higher base offense level for defendants whose prior inchoate convictions qualify as “crimes of violence.” For practitioners and future litigants, this decision underscores:

The robustness of Auer/Stinson deference in the sentencing context.
The necessity of a direct Supreme Court mandate to overturn established sentencing‐commentary doctrine.
The practical consequence that inchoate offenses will continue to trigger enhanced Guidelines ranges under Application Note 1.

Absent a clear directive from the Supreme Court, the Seventh Circuit will continue to treat the Sentencing Commission’s commentary as authoritative law.