Kisor Limits Use of U.S.S.G. § 2K2.1 Commentary Note 10; Prior Drug Felonies Count Even Without Criminal History Points

1. Introduction

In United States v. Willie Junior Lilly (4th Cir. Apr. 17, 2026) (unpublished, per curiam), the Fourth Circuit affirmed the conviction and 70-month sentence of Willie Junior Lilly for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).

The appeal raised two issues:

  1. A Second Amendment challenge contending that § 922(g)(1) is unconstitutional as applied to Lilly, advanced under New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022).
  2. A Sentencing Guidelines issue disputing the district court’s application of U.S.S.G. § 2K2.1(a)(2) (base offense level 24) based on two prior “controlled substance offense” felonies, where one prior drug conviction was consolidated for judgment under North Carolina practice and did not receive separate criminal history points.

The court held that the constitutional claim was foreclosed by Fourth Circuit precedent, and that the sentencing claim failed because the text of § 2K2.1(a)(2) was unambiguous and therefore could not be narrowed by reliance on commentary, under the circuit’s Kisor-based framework.

2. Summary of the Opinion

The Fourth Circuit:

  • Rejected Lilly’s as-applied challenge to § 922(g)(1) as foreclosed by United States v. Hunt, 123 F.4th 697 (4th Cir. 2024), reinforced by United States v. Holman, -- F.4th --, No. 25-4041, 2026 WL 850185 (4th Cir. Mar. 27, 2026).
  • Affirmed the Guidelines calculation, holding that § 2K2.1(a)(2)’s reference to “two felony convictions” for controlled substance offenses is not ambiguous, so the court would not defer to commentary suggesting those felonies must “receive criminal history points” (U.S.S.G. § 2K2.1 cmt. n.10), consistent with the Kisor v. Wilkie, 588 U.S. 558 (2019) framework adopted for Guidelines commentary deference in the Fourth Circuit.
  • Rejected Lilly’s collateral estoppel argument against the Government, reasoning that a “sea change” in governing law (post-Kisor, and post-United States v. Campbell, 22 F.4th 438 (4th Cir. 2022)) prevented estoppel.

The judgment was affirmed.

3. Analysis

3.1. Precedents Cited

A. Standards of review and sentencing framework

  • United States v. Skinner, 70 F.4th 219 (4th Cir. 2023): supplied the standard for reviewing denial of a motion to dismiss (legal conclusions de novo; factfinding for clear error). The court used this as the gateway standard for the constitutional issue.
  • United States v. Cox, 165 F.4th 249 (4th Cir. 2026) (quoting Gall v. United States, 552 U.S. 38 (2007)): reaffirmed abuse-of-discretion review for sentencing and the two-step procedural/substantive reasonableness framework.
  • United States v. Banks, 104 F.4th 496 (4th Cir. 2024): emphasized first ensuring no “significant procedural error,” including Guidelines calculation error, before reviewing substantive reasonableness.
  • United States v. Pena, 952 F.3d 503 (4th Cir. 2020) (quoting United States v. Horton, 693 F.3d 463 (4th Cir. 2012)): set the de novo/clear-error split when reviewing Guidelines calculations.
  • United States v. Provance, 944 F.3d 213 (4th Cir. 2019): referenced for totality-of-circumstances review of substantive reasonableness, though Lilly did not press a substantive reasonableness challenge.

B. Second Amendment as-applied challenges to 18 U.S.C. § 922(g)(1)

  • New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022): the doctrinal basis for Lilly’s motion to dismiss, invoking Bruen’s “history and tradition” approach for Second Amendment challenges.
  • United States v. Hunt, 123 F.4th 697 (4th Cir. 2024): the controlling circuit precedent that the panel described as “categorically foreclosing all as applied challenges to § 922(g)(1).” Hunt functioned as a direct merits bar: once applicable, no individualized as-applied inquiry proceeds.
  • United States v. Holman, -- F.4th --, No. 25-4041, 2026 WL 850185 (4th Cir. Mar. 27, 2026): cited to underscore that Hunt’s rule is comprehensive (“covers all as-applied challenges”).
  • Demetres v. E. Wing Constr., Inc., 776 F.3d 271 (4th Cir. 2015): invoked for the intra-circuit rule of orderliness—only the en banc court can overrule a panel decision—explaining why the panel could not revisit Hunt.

C. North Carolina consolidated judgments and criminal history points

  • United States v. Davis, 720 F.3d 215 (4th Cir. 2013): explained how North Carolina “consolidated for judgment” convictions are treated for federal criminal history purposes—typically only the most serious offense in the consolidated judgment receives criminal history points. Lilly relied on Davis to argue his 2014 marijuana conviction “did not receive” points and therefore should not count under § 2K2.1(a)(2) via commentary.

D. Guidelines commentary deference after Kisor

  • Kisor v. Wilkie, 588 U.S. 558 (2019): provided the administrative-law framework (limits on Auer deference) that the Fourth Circuit applies to Sentencing Guidelines commentary: commentary is consulted only if the guideline text is genuinely ambiguous after applying standard interpretive tools.
  • United States v. Boler, 115 F.4th 316 (4th Cir. 2024): cited for the Fourth Circuit’s articulation of the Kisor approach to Guidelines commentary, including the “genuinely ambiguous” requirement.
  • United States v. Campbell, 22 F.4th 438 (4th Cir. 2022): identified as the case in which the Fourth Circuit adopted the Kisor framework for Guidelines challenges; important both to the merits (methodology) and to collateral estoppel (change in law).
  • United States v. Jackson, 127 F.4th 448 (4th Cir. 2025): noted only to clarify that Campbell was “overruled in part on other grounds” by a Guidelines amendment (as recognized in Jackson), while leaving Campbell’s Kisor-deference methodology pertinent.
  • United States v. Mitchell, 120 F.4th 1233 (4th Cir. 2024): cited to describe how Campbell’s adoption of Kisor “rewired” the circuit’s approach to Guidelines interpretation.
  • Stinson v. United States, 508 U.S. 36 (1993): discussed in a footnote to contrast the pre-Kisor/Stinson era (commentary “authoritative” unless inconsistent with the guideline) with the post-Kisor/Campbell approach (commentary only if text is ambiguous).

E. Limits on judicial rewriting of the Guidelines

  • United States v. Maroquin-Bran, 587 F.3d 214 (4th Cir. 2009): cited for the principle that rewriting the Guidelines is a legislative/commission task, not a judicial one. The panel used this to criticize Lilly’s reading as effectively adding a “criminal history points” requirement to § 2K2.1(a)(2).

F. Collateral estoppel and changes in law

  • Collins v. Pond Creek Mining Co., 468 F.3d 213 (4th Cir. 2006): provided the Fourth Circuit’s formulation that collateral estoppel does not apply when there has been a “major” change in governing law that could render the prior determination inconsistent with prevailing doctrine.
  • Montana v. United States, 440 U.S. 147 (1979): supplied the Supreme Court root for the “major change in governing law” limitation on issue preclusion.

3.2. Legal Reasoning

A. The Bruen-based as-applied challenge fails under Hunt’s categorical bar

The panel treated the Second Amendment issue as a straightforward application of circuit stare decisis: regardless of Lilly’s individualized circumstances, United States v. Hunt foreclosed “all as applied challenges to § 922(g)(1).” The court reinforced that conclusion with United States v. Holman. Because a panel cannot overrule Hunt, Demetres v. E. Wing Constr., Inc. supplied the doctrinal reason the argument could not succeed absent en banc action.

B. The Guidelines issue turns on text-first interpretation and “genuine ambiguity”

The central sentencing question was whether Lilly’s 2014 North Carolina marijuana conviction could count as one of the two predicate “controlled substance offense” felonies under U.S.S.G. § 2K2.1(a)(2) even though—because it was consolidated for judgment with a more serious offense—it did not separately receive criminal history points (as discussed in United States v. Davis).

Lilly attempted to import a limitation from the commentary—U.S.S.G. § 2K2.1 cmt. n.10 (“use only those felony convictions that receive criminal history points”)— to exclude the 2014 drug conviction. The panel rejected this move via Kisor v. Wilkie as adopted in United States v. Campbell and restated in United States v. Boler:

  • If the guideline text is unambiguous, courts do not defer to commentary.
  • The panel found “no ambiguity” in § 2K2.1(a)(2)’s phrase “two felony convictions” for a controlled substance offense; on its face, it requires only that the defendant sustained two qualifying felony convictions, not that each one generated criminal history points.

The panel also framed Lilly’s position as effectively rewriting the guideline to add words (“that received criminal history points”), which it refused to do, citing United States v. Maroquin-Bran.

C. Collateral estoppel does not bind the Government after the Kisor/Campbell shift

Lilly argued that the Government should be collaterally estopped because it previously conceded in his 2017 federal case that the consolidated 2014 drug conviction did not qualify as a predicate for § 2K2.1(a)(2). The panel rejected issue preclusion because, under Collins v. Pond Creek Mining Co. and Montana v. United States, estoppel does not apply where there has been a major change in governing law. The court identified that change as:

  • Kisor (2019) altering when interpretive commentary deserves deference, and
  • the Fourth Circuit’s subsequent adoption of the Kisor framework in United States v. Campbell (2022), described as “completely rewired” Guidelines analysis (with United States v. Mitchell cited for that effect).

3.3. Impact

A. Firearms prosecutions under § 922(g)(1)

Practically, the decision reiterates that within the Fourth Circuit, as long as United States v. Hunt remains controlling, defendants face a steep barrier: as-applied Bruen challenges to § 922(g)(1) will be dismissed on precedential grounds in panel proceedings, irrespective of individual facts. Even though this opinion is unpublished, it signals consistent application of Hunt by the court.

B. Sentencing: consolidation-based “no criminal history points” arguments against § 2K2.1(a)(2)

The sentencing portion has broader practical significance. Defendants with North Carolina consolidated judgments have often argued that certain convictions should not count for guideline enhancements because they did not receive separate criminal history points. Lilly underscores a text-centered approach:

  • Where the guideline text sets a predicate based on having “felony convictions,” courts may treat the existence of the qualifying conviction as sufficient, even if criminal history scoring rules (including consolidation principles discussed in United States v. Davis) mean the conviction did not add points.
  • The opinion also illustrates how post-Kisor interpretation can reduce the operative force of commentary (here, note 10) if the guideline text is deemed unambiguous.

C. Issue preclusion in federal sentencing litigation

The collateral estoppel discussion signals that litigants should be cautious in relying on prior concessions or rulings in older sentencing proceedings. If the interpretive framework has materially changed—here via Kisor and Campbell—courts may treat that shift as a “major change” defeating estoppel under Collins v. Pond Creek Mining Co..

4. Complex Concepts Simplified

  • “As-applied” constitutional challenge: a claim that a law may be valid generally, but unconstitutional when applied to this particular person’s circumstances. Here, the argument was foreclosed not because it was fully analyzed and rejected on the facts, but because circuit precedent (United States v. Hunt) bars the category of claim.
  • Guidelines “text” vs “commentary”: the guideline text is the rule; commentary is explanatory material. After Kisor, commentary receives deference only when the guideline text is genuinely ambiguous. If the text is clear, commentary cannot add requirements.
  • North Carolina “consolidated for judgment”: multiple convictions can be packaged into one judgment for sentencing in state court. In federal criminal history scoring, consolidation can mean fewer criminal history points are assessed (as explained in United States v. Davis), even though the underlying convictions still exist.
  • Collateral estoppel (issue preclusion): prevents relitigation of an issue already decided. But it does not apply where later legal developments create a materially different governing rule (as described in Collins v. Pond Creek Mining Co. and Montana v. United States).

5. Conclusion

United States v. Willie Junior Lilly affirms two key Fourth Circuit themes:

  • Second Amendment: In panel litigation, United States v. Hunt continues to categorically foreclose as-applied challenges to 18 U.S.C. § 922(g)(1), notwithstanding Bruen-based arguments.
  • Sentencing: Under the Fourth Circuit’s post-Kisor interpretive approach, if U.S.S.G. § 2K2.1(a)(2) is unambiguous, courts will apply it as written and will not use commentary (including U.S.S.G. § 2K2.1 cmt. n.10) to add a “criminal history points” limitation— even where consolidation rules mean a conviction did not separately score points.

Although unpublished and thus “not binding precedent,” the opinion provides a clear snapshot of how the Fourth Circuit is currently resolving (1) Bruen-era challenges to felon-in-possession prosecutions, and (2) commentary-based efforts to narrow guideline predicates after Kisor and Campbell.