En banc Eleventh Circuit limits reach of career offenders under USSG based on plain text of guideline for drug offenses

Last month, as noted in this post, the en banc Eleventh Circuit gave federal drug defendants a big sentencing win by giving a broad reading to the FIRST-STEP-amended mandatory-minimum safety valve provision.  A helpful reader alerted me to the fact that today the en banc Eleventh Circuit issued another ruling that helps some drug defendants at sentencing in US v. Dupree, No. 19-13776 (11th Cir. Jan.18, 2023) (available here).  This matter is another case with a Kisor role shifting guidleine interpretation (background here), and here is how the opinion of the Court begins:

This appeal requires us to consider whether an inchoate offense qualifies as a “controlled substance offense” for purposes of the career offender sentencing enhancement under the United States Sentencing Guidelines. U.S. Sent’g Guidelines Manual § 4B1.2(b) (U.S. Sent’g Comm’n 2018). In this case, the district court sentenced Brandon Dupree as a career offender based partly on his conviction for conspiring to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846.  Dupree appealed his sentence, arguing that his § 846 conspiracy conviction could not serve as a predicate for his career offender enhancement because the Guidelines’ definition of “controlled substance offense” omitted conspiracy and other inchoate crimes.

A panel of this Court affirmed Dupree’s sentence, concluding that our decisions in United States v. Weir, 51 F.3d 1031 (11th Cir. 1995), and United States v. Smith, 54 F.3d 690 (11th Cir. 1995), foreclosed his argument.  United States v. Dupree, 849 F. App’x 911 (11th Cir. 2021) (unpublished), reh’g en banc granted, opinion vacated 25 F.4th 1341 (11th Cir. 2022). We granted Dupree’s petition to rehear the case en banc.  After careful consideration, and with the benefit of oral argument, we hold that the definition of “controlled substance offense” in § 4B1.2(b) does not include inchoate offenses.  We therefore vacate Dupree’s sentence and remand to the district court for resentencing.

Here is a choice paragraph from the start of the dissent by Judge Luck:

I respectfully dissent for two reasons.  First, despite what the majority opinion says it is doing, it is not really applying Kisor’s clarification to Stinson.  Under the majority opinion’s approach, the Kisor clarification applies to Stinson the same way a magnifying glass applies to an ant on a sunny day — total annihilation.  The majority opinion is actually applying Kisor to overrule Stinson.  But the Supreme Court didn’t overrule Stinson and we can’t overrule a Supreme Court opinion on our own.  Only the Supreme Court can do that.  Second, even if the majority opinion isn’t overruling Stinson, the Kisor clarification doesn’t apply to Stinson.