- Bookmark
- Share
- CaseIQ
United States v. Hogue
Factual and Procedural Background
Ayo Keith Hogue was convicted of attempted bank robbery in violation of 18 U.S.C. § 2113(a). He appealed his sentence, challenging the district court's classification of his offense as a "crime of violence" under Sentencing Guidelines § 4B1.2(a), which resulted in an increased sentencing range as a career offender under § 4B1.1. The appeal was heard by the Ninth Circuit after the district court sentenced Hogue. Hogue did not raise this issue in the district court, and the appellate court reviewed the district court’s determination for plain error.
Legal Issues Presented
- Whether attempted bank robbery under 18 U.S.C. § 2113(a) qualifies as a "crime of violence" under Sentencing Guidelines § 4B1.2(a), thereby justifying an enhanced sentence under the career offender provision § 4B1.1.
- Whether the Sentencing Guidelines commentary, specifically Application Note 1 to § 4B1.2, which includes inchoate offenses such as attempts within the definition of crimes of violence, is entitled to deference.
Arguments of the Parties
Appellant's Arguments
- Hogue contended that the district court erred in classifying attempted bank robbery as a crime of violence under the Guidelines.
- He argued that Application Note 1 to § 4B1.2, which includes attempted offenses, should not be given deference because its inclusion of inchoate offenses is inconsistent with the text of § 4B1.2.
- Hogue suggested that the Supreme Court’s decision in Kisor v. Wilkie changed the standard for deferring to agency interpretations, requiring that the Guideline be genuinely ambiguous before deferring to commentary.
Appellee's Arguments
The opinion does not contain a detailed account of the government's legal arguments beyond noting that, because the court affirmed the sentence, it did not address the government's argument that Hogue waived his right to appeal.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| United States v. Charles, 581 F.3d 927 (9th Cir. 2009) | Standard of plain error review for sentencing determinations not raised in district court. | Applied to review the district court’s determination that Hogue is a career offender for plain error. |
| United States v. Jacobo Castillo, 496 F.3d 947 (9th Cir. 2007) (en banc) | Appellate waivers do not affect appellate jurisdiction. | Referenced to explain why the court did not address the government’s waiver argument. |
| Franklin v. Johnson, 290 F.3d 1223 (9th Cir. 2002) | Procedural bars to appeal may be complex and courts may proceed to the merits if the result is the same. | Referenced to justify proceeding to merits despite waiver argument. |
| United States v. Prigan, 8 F.4th 1115 (9th Cir. 2021) | Defines generic federal robbery under Sentencing Guidelines § 4B1.2(a)(2). | Supported the conclusion that completed bank robbery matches generic federal robbery. |
| Stinson v. United States, 508 U.S. 36 (1993) | Guidelines commentary must be given controlling weight unless plainly erroneous or inconsistent. | Discussed in relation to whether Application Note 1 is entitled to deference. |
| Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) | Established the principle of deference to agency interpretations unless plainly erroneous. | Quoted in the context of deferring to Guidelines commentary. |
| Kisor v. Wilkie, 139 S.Ct. 2400 (2019) | Cautioned courts on deferring to agency interpretations unless the rule is genuinely ambiguous after all interpretive tools are used. | Discussed by appellant and in concurrence regarding potential impact on deference to Guidelines commentary. |
| United States v. Crum, 934 F.3d 963 (9th Cir. 2019) | Confirmed Application Note 1 is consistent with the Guidelines text and is entitled to deference. | Followed to affirm the district court’s reliance on Application Note 1 and reject appellant’s argument. |
| United States v. Vea-Gonzales, 999 F.2d 1326 (9th Cir. 1993) | Supported consistency of Application Note 1 with Guidelines text. | Quoted in Crum to support Application Note 1’s validity. |
| United States v. Campbell, 22 F.4th 438 (4th Cir. 2022) | Agreed with limiting deference to commentary to genuinely ambiguous Guidelines. | Referenced in concurrence as part of a circuit split on deference post-Kisor. |
| United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc) | Adopted a stricter standard for deference to commentary after Kisor. | Referenced in concurrence to highlight disagreement with current Ninth Circuit precedent. |
| United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021) | Supported limiting deference to commentary under Kisor. | Referenced in concurrence regarding the need to reconsider deference standards. |
| United States v. Sorenson, 818 Fed.Appx. 668 (9th Cir. 2020) (Paez, J., concurring) | Criticized the use of commentary to expand Guidelines beyond their text without Congressional approval. | Referenced in concurrence to argue against the practice of expanding sentencing ranges via commentary. |
Court's Reasoning and Analysis
The court began by recognizing that the Sentencing Guidelines define "crime of violence" to include generic federal robbery, and that completed bank robbery under 18 U.S.C. § 2113(a) matches this definition. Application Note 1 to § 4B1.2 explicitly includes attempted offenses within crimes of violence. Although Hogue argued that this inclusion is inconsistent with the Guidelines text and challenged the deference owed to Application Note 1 in light of Kisor v. Wilkie, the court found that existing Ninth Circuit precedent, particularly United States v. Crum, forecloses this argument. The court held that Application Note 1 is consistent with the Guidelines and is entitled to deference. Because Hogue did not raise this issue in the district court, the court reviewed for plain error and found none, affirming the sentence. The court also declined to address the government’s waiver argument since the sentence was affirmed on the merits.
Judge Paez concurred separately, agreeing with the outcome but expressing concern about the circuit’s precedent. He noted that no panel had yet reconsidered the effect of Kisor on deference to Guidelines commentary and highlighted a circuit split on this issue. He argued that commentary should not be used to expand the scope of the Guidelines beyond their text, as this circumvents Congressional oversight and leads to significantly increased sentencing ranges, as occurred in Hogue’s case.
Holding and Implications
The court AFFIRMED the district court’s sentence of Ayo Keith Hogue for attempted bank robbery.
This decision upholds the application of the career offender enhancement based on the classification of attempted bank robbery as a crime of violence under the Sentencing Guidelines, relying on Application Note 1’s inclusion of inchoate offenses. The ruling maintains existing Ninth Circuit precedent without establishing new law. The direct effect is the affirmation of Hogue’s increased sentencing range from 41-51 months to 120-150 months. The concurrence signals potential future reconsideration of the deference standard but does not alter the holding here.
NOT FOR PUBLICATION
Argued and Submitted February 7, 2022
Appeal from the United States District Court for the District of Oregon, No. 3:19-cr-00242-MO-1, Michael W. Mosman, District Judge, Presiding
Before: PAEZ and NGUYEN, Circuit Judges, and TUNHEIM, [**] District Judge.
MEMORANDUM [*]
Ayo Hogue appeals his sentence for attempted bank robbery in violation of 18 U.S.C. § 2113(a). He contends that the district court erred in determining that § 2113(a) is a "crime of violence" under Sentencing Guidelines § 4B1.2(a), thereby increasing his sentencing exposure as a career offender under § 4B1.1. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. Reviewing the district court's determination that Hogue is a career offender for plain error, see United States v. Charles, 581 F.3d 927, 932 (9th Cir. 2009), we affirm.
Hogue acknowledges that he did not raise this issue in the district court.
Because we affirm Hogue's sentence, we need not address the government's argument that he waived his right to appeal. See United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc) (holding that appellate waivers do not affect appellate jurisdiction); cf. Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (explaining that procedural bars to an appeal "are not infrequently more complex than the merits issues . . ., so it may well make sense in some instances to proceed to the merits if the result will be the same").
The Sentencing Guidelines define "crime of violence" to include generic federal robbery, see U.S. Sent'g Guidelines Manual § 4B1.2(a)(2) (U.S. Sent'g Comm'n 2021); United States v. Prigan, 8 F.4th 1115, 1120 (9th Cir. 2021), and Hogue concedes that completed bank robbery under § 2113(a) matches generic federal robbery. Application Note 1 to § 4B1.2 provides that crimes of violence "include the offenses of . . . attempting to commit such offenses."
Hogue argues that we should give no deference to Application Note 1 because its inclusion of inchoate offenses is inconsistent with the text of § 4B1.2. See Stinson v. United States, 508 U.S. 36, 45 (1993) (holding that Guidelines commentary "must be given 'controlling weight unless it is plainly erroneous or inconsistent with the [Guidelines].'" (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945))); see also Kisor v. Wilkie, 139 S.Ct. 2400, 2414 (2019) (cautioning courts not to apply a presumption of deference to an agency's interpretation of its own rule if the rule is not "genuinely ambiguous" after "resort[ing] to all the standard tools of interpretation" or if "the reasons for that presumption do not apply, or countervailing reasons outweigh them").
Our precedent forecloses Hogue's argument. See United States v. Crum, 934 F.3d 963, 966 (9th Cir. 2019) ("Application Note 1 of § 4B1.2 is 'perfectly consistent' with the text of § 4B1.2(b)." (quoting United States v. Vea-Gonzales, 999 F.2d 1326, 1330 (9th Cir. 1993))). To the extent Hogue argues that Kisor changed the law, Crum subsequently reaffirmed the validity of Application Note 1, and the district court did not plainly err by relying on the Guidelines commentary.
AFFIRMED.
Paez, J., concurring:
I agree with the majority opinion that United States v. Crum, 934 F.3d 963 (9th Cir. 2019) (per curiam), dictates affirmance. I write separately, however, to highlight the troubling nature of our circuit's precedents on this issue.
None of this court's opinions evaluating Application Note 1 have considered whether the Supreme Court's decision in Kisor v. Wilkie, 139 S.Ct. 2400 (2019), clarified the rule laid out in Stinson v. United States, 508 U.S. 36 (1993). Hogue argues that after Kisor, we may only defer to the commentary if a Guideline is "genuinely ambiguous, even after a court as resorted to all the standard tools of interpretation." Kisor, 139 S.Ct. at 2414. I find this to be a compelling argument, and at least two circuits agree. See United States v. Campbell, 22 F.4th 438, 449 (4th Cir. 2022); United States v. Nasir, 17 F.4th 459, 472 (3d Cir. 2021) (en banc); United States v. Riccardi, 989 F.3d 476, 485 (6th Cir. 2021). Crum did not expressly address this argument, nor has any panel since. I believe that this court must reconsider our case law in this area in light of these developments and decide the question whether Kisor has changed the circumstances under which we defer to the commentary.
Moreover, I continue to believe that the commentary cannot and should not be used to increase the scope of the Guidelines text. As the Crum majority noted and as I wrote in my concurrence in United States v. Sorenson, this is an impermissible exercise of the Sentencing Commission's power, allowing it to expand the reach of the Guidelines while circumventing congressional review and approval. Sorenson, 818 Fed.Appx. 668, 670 (9th Cir. 2020) (Paez, J., concurring); see also Crum, 934 F.3d at 966. Application Note 1 is a particularly concerning example of this phenomenon, since it "increase[s] the sentencing ranges for numerous defendants." Crum, 934 F.3d at 966. Indeed, Hogue's guideline range increased from 41-51 months to 120-150 months because of the application of the career offender guideline. I continue to believe that this court should go en banc to reject this practice and prevent such unwarranted expansions. See Sorenson, 818 Fed.Appx. at 670 (Paez, J., concurring).
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, sitting by designation.
Alert