United States v. Sanders: Fourth Circuit Re-Affirms Deference to § 2B1.1 “Sophisticated Means” Commentary and Validates the “Secretive or Irregular Transaction” Intent Instruction

Introduction

In United States v. Cory Collin Fitzgerald Sanders, the Fourth Circuit confronted two recurring but unsettled questions in federal criminal practice:

1. Whether a model jury instruction permitting the jury to infer willfulness from the “secretive or irregular manner in which a transaction is carried out” misstates the law on intent in fraud prosecutions, and
2. Whether, after Kisor v. Wilkie, courts should continue to defer to the Sentencing Commission’s commentary defining “sophisticated means” in U.S.S.G. § 2B1.1(b)(10)(C).

By affirming both the conviction and 45-month sentence of Mr. Sanders—a government contractor who repeatedly misrepresented Cisco and Polycom certifications—the court:

• Re-endorsed the instruction contained in Modern Federal Jury Instructions § 6-19, provided it is embedded within a full and balanced charge on mens rea, and
• Announced that § 2B1.1’s text is “genuinely ambiguous,” thereby warranting Kisor-style deference to the commentary’s “especially complex or especially intricate” definition of sophisticated means.

The decision supplies doctrinal guidance to trial judges inside and outside the Fourth Circuit and will likely shape white-collar sentencing disputes nationwide.

Summary of the Judgment

Judge Elizabeth W. Hanes, writing for a unanimous panel, affirmed:

1. Conviction: The challenged intent instruction—though vulnerable if read in isolation—did not mislead when viewed alongside six unchallenged instructions that carefully defined “willful” and distinguished it from negligence or mistake.
2. Sentence: The district court correctly applied the two-level sophisticated-means enhancement because Sanders:
   • Formed multiple shell entities (SandTech and CyCorp) to obscure performance history,
   • Submitted doctored certifications, used aliases, and blind-shipped non-conforming equipment, and
   • Operated the scheme across several years and federal agencies, causing nearly $900,000 in loss.
   These acts exceeded the “minimum conduct required to establish fraud in its simplest form,” satisfying the commentary’s definition.

Analysis

Precedents Cited

• Jury-Instruction Lineage
  • Emergency One, Inc. v. American FireEagle (2000) — de novo review of legal accuracy.
  • United States v. Jefferson (2012) & Blankenship (2017) — charge evaluated “as a whole.”
  • United States v. Smithers (2024) — error analysis framework (harmless/plain).
• Sentencing & Commentary Deference
  • Stinson v. United States (U.S. 1993) — commentary is authoritative unless inconsistent.
  • Kisor v. Wilkie (U.S. 2019) — refined Auer deference; introduced “zone of ambiguity” test.
  • United States v. Boler (4th Cir. 2024) & Mitchell (4th Cir. 2024) — applied Kisor to Guidelines commentary.
  • United States v. Adepoju (4th Cir. 2014), Jinwright (2012), Wolf (2017) — substance of sophisticated-means enhancement.

Through these authorities the panel synthesized a two-step inquiry: (1) textual ambiguity; (2) commentary within the zone of ambiguity and satisfying the three Kisor indices (official position, substantive expertise, fair & considered judgment).

Legal Reasoning

1. Jury-Instruction Holding
   The court conceded the challenged sentence could, “if read in isolation,” seem to equate irregularity with illegality. However, because six other instructions immediately surrounded it—reminding jurors that willfulness requires knowledge of unlawfulness and excluding negligence—the charge, read as a whole, was a correct statement of the law. The panel thus sidestepped the harmless-versus-plain-error debate.
2. Sentencing Holding
   a. Textual Examination — Dictionaries and statutory context offered no single meaning for “sophisticated means.”
   b. Ambiguity Found — The phrase was held “genuinely ambiguous.”
   c. Kisor Deference — The commentary’s definition was reasonable, long-standing (since 2001), and within the Commission’s expertise, earning controlling weight.
   d. Application to Facts — Sanders’ multi-layered conduct (shell entities, falsified documents, alias registrations, blind shipping) constituted “especially intricate” steps in both execution and concealment.

Impact on Future Litigation

• Jury Instructions: District courts in the Fourth Circuit may safely employ the § 6-19 language, provided they bolster it with clarifying instructions on negligence, mistake, and knowledge of illegality.
• Sentencing Commentary Deference: The decision fortifies a post-Kisor roadmap for resolving challenges to Guidelines commentary. Litigants must now:
  • Identify genuine textual ambiguity, and
  • Show that the commentary stretches beyond—not merely inhabits—the zone of ambiguity.
• White-Collar Sentencing: The opinion underscores that use of shell companies, doctored certifications, and repeated credential-spoofing is sophisticated, even without offshore accounts or technological encryption. Expect prosecutors to rely on Sanders when seeking the § 2B1.1(b)(10)(C) bump in procurement-fraud and government-contract cases.

Complex Concepts Simplified

Sophisticated-Means Enhancement (§ 2B1.1(b)(10)(C))

A two-level increase in the fraud guideline for conduct that is more intricate than a straightforward fraud, e.g., using shell companies, layered transactions, or elaborate concealment.

Kisor / Auer Deference

Courts defer to an agency’s interpretation of its own regulation only when (1) the regulation is ambiguous, (2) the interpretation fits within the ambiguity, and (3) reflects authoritative, expert, and considered judgment.

“Secretive or Irregular Manner” Instruction

A model pattern charge telling jurors that clandestine or unusual behavior can be circumstantial evidence of intent—not that it must be.

Plain Error vs. Harmless Error

“Plain error” (unobjected-to issues) is harder for appellants: the error must be obvious and affect substantial rights. “Harmless error” (properly preserved) favors appellants: the government must prove the error did not influence the verdict.

Conclusion

United States v. Sanders cements two practical rules in Fourth Circuit jurisprudence:

1. A model instruction allowing an inference of willfulness from secretive or irregular conduct is permissible so long as the full charge accurately delineates intent and shields against conviction for mere negligence.
2. The term “sophisticated means” in § 2B1.1 is ambiguous; courts should therefore defer to, and apply, the Sentencing Commission’s longstanding commentary defining it, provided the offender’s conduct exhibits complexity beyond a basic fraud scheme.

Beyond resolving Mr. Sanders’ appeal, the opinion equips trial courts with a clear analytical structure for both jury-instruction challenges and commentary-based sentencing arguments. As agencies and practitioners continue to test the boundaries of Kisor, Sanders stands as a robust precedent endorsing respectful—but critical—deference to the Sentencing Commission’s interpretive guidance.