### In the 

# United States Court of Appeals
f

or the Seventh Circuit

____________________ No. 22-2014
U NITED S TATES OF A MERICA , Plaintiff -Appel lee ,

v.

K EITH W HITE , Defendant -Appell ant

.

____________________ Appeal from the United States District Court for the Southern District of Indiana , Indianapolis Division

. No. 1:17 CR 00135

- 001 — Sarah Evans Barker , Judge

.

____________________
A RGUED J ANUARY 12, 2023

— D ECIDED A PRIL 2, 2024

____________________

Before S YKES , C hief Judge , and E ASTERBROOK and R IPPLE , Circuit Judges

. S YKES , Chief Judge

. While serving a state sentence at the Pendleton Correctional Facility in Indiana, Keith White and another inmate ran a heroin

- distribution ring in side the prison . A fter three inmates fatally overdosed , the FBI launched an investigation , and White and three accomplices

were indicted for conspiracy to distribute heroin. White2 No. 22-2014

ple aded guilty ; this is his second appeal c hallenging his
sentence

. White ’s criminal history includes two Indiana felony convictions for cocaine dealing , which raised the statutory p enalties for his heroin conviction , see 18 U.S.C. § 841(b)(B)(i), and increased his base offense level u nder the

career

- offender provision of the Sentencing Guidelines , see U.S.S.G. § 4B1.1 –.2. In his first appeal, White successfully challenged the statutory enhancement under United States v. Ruth , 966 F.3d 642 (7th Cir. 2020) . But Ruth did not affect his status as a career offender under the Guidelines

. At his resentencing hearing, White raised a new object ion to the career

- offender guideline based on the Supreme Court’s intervening decision in Kisor v. Wilkie , 139 S. Ct. 2400 (2019). As relevant here, t he guideline applies when a defendant is convicted of a felony “controlled substance offense” and has two or more prior felony convictions for a “controlled substance offense.” U.S.S.G. § 4B1.1(a). Under the version of the Guidelines then in effect, t he definition of “controlled substance offense” did not address inchoate offense s like conspiracy

. See id. § 4B1.2(b) (Nov

. 1, 2021). But the commentary did : Application Note 1 explained that the
term “controlled substance offense” include s “aiding and abetting, conspiring, and attempting to commit such offenses .” Id. cmt. n.1. Applying the Supreme Court’s decision in Stinson v. United States , 508 U.S. 36 (1993), we ha ve repeatedly deferred
to A pplication N ote 1 as the Sentencing Commission’s authoritative interpretation of the career

- offender guideline. See United States v. Smith , 989 F.3d 575, 583

– 85 (7th Cir. 2021); United States v. Adams , 934 F.3d 720, 727

– 30 (7th Cir. 2019);No. 22-2014 3

United States v. Raupp , 677 F.3d 756, 758– 59 (7th Cir. 2012) ( overruled on other grounds b y United States v. Rollins , 836 F.3d 737, 743 (7th Cir. 2016) (en banc))

. Bound by circuit precedent , t he district judg e rejected White’s argument a nd again applied the career

- offender guideline

. White now asks us to over rule this circuit caselaw and remand for re sentencin g without the career

- offender enhancement

. Relying on Kisor , h e argues that th e d efinition of “controlled substance offense” in § 4B1.2(b) is clear on its face and does not mention i nchoate offenses

. It follows, he says, that A pplication N ote 1 deserves no deference because the guideline’s text unambiguously excludes inchoate offenses

. As we noted in Smith , this question has divided the circuits , s ee 989 F.3d at 584, and t he disagreement has only deepened since then

. In Smith w e declined to switch sides in th e circuit split

. Id. W e do so again here

. Kisor did not disturb Stinson or our circuit precedent. 1 White argues in the alternative that A pplication N ote 1 is invalid under the “major questions doctrine” and the Supreme Court’s decision in West Virginia v. EPA , 597 U.S. 697 (2022). This argument is meritless. Th e major questions doctrine does not apply. We therefore affirm the judgment. I. Background
I n 20 14 White w as serving a state sentence for cocaine trafficking at the Pendleton Correctional Facility in Indiana

. He and fellow inmate Elonzo Williams operated a long

running drug

- trafficking ring inside the prison, distributing

1 As we explain later in this opinion, the Sentencing Commission recently amended § 4B1.2, moving Application Note 1 to the text of the guideline

.4 No. 22-2014

heroin to other inmates

. Williams’s sister Lettie served as the courier ; she picked up distribution quantities of heroin f rom White’s s ources in Chicago and delivered the drug s to Karen Jennings, a prison kitchen worker . Jennings smuggle d th e drugs into the prison , and White and Williams distributed user quantities to inmates

. After a series of overdoses

— three of them fatal

— the FBI opened an i nvestigation . I nmates identified White and Williams as their heroin source s. I nvestigators then reviewed recorded phone calls and discovered that White had used prison phones to organize the pickup and delivery of

m ultiple batches of heroin between 2014 and 2015.
White and his three accomplices were indicted in 2017 for conspiracy to distribute 100 grams or more of heroin

. 21 U.S.C. §§ 841(a)(1), 846

. Based on his history of drug offense s— specifically, his two Indiana convictions for cocaine dealing

— th e government filed an information under 21 U.S.C. § 851, which rais ed the statutory penalties to a minimum of 10 year s in prison and a maximum o f life (up from the baseline of 5 to 40 years)

. S ee § 841(b)(1)(B)(i)

. White’s case was dormant for more than a year , but h e eventually pleaded guilty . I n addition to the elevated statutory penalties , he faced a n enhanced offense level under the

career

- offender guideline based on his prior drug convictions. Se e U.S.S.G. § 4B1.1

– .2. With a final off ense level of 34 and a criminal history category of VI, his advisory Guidelines range was 262 to 327 months in prison

. In 2019 t he district judge imposed a sentence of 12 years —2 years above the statutory minimum but well below the G uidelines range

.No. 22-2014 5

White asked his lawyer to file an appeal , but she did not follow through

. Based on his lawyer’s error, the judge granted White’s motion for relief under 28 U.S.C. § 2255 and permitted him to file a late appeal

. In the meantime, we issued our decision in Ruth , which held that an Illinois conviction for cocaine dealing is not a predicate for enhanced penalties under §§ 841(b)(1) and 851 because Illinois’s statutory definition of cocaine i s categorically broader than the parallel definition under federal law

. Ruth , 966 F.3d at 64 6–50. T he government conceded that under Ruth , White ’s convictions under Indiana ’s cocaine

trafficking s tatute could not support the statutory enhancement under § 841(b)(1)(B). Th at concession had the effect of dropping the statutory penalties to the baseline of 5 to 40 years , so the parties filed a joint motion to vacate the
sentence. We granted the motion and remanded for resentencing

. Ruth did not eliminate White’s designation as a career offender, but t he change in the statutory maximum reduced his base offense level from 37 to 34, see U.S.S.G. § 4B1.1(b)

. That , in turn, resulted in a new adjusted offense level of 31. B ecause he remained a career offender, h is criminal

- history category did not change . With the recalculated total offense level of 31 and the same criminal

- history category of VI, White’s n ew G uidelines range was 188 to 235 months in prison. Back before the district judge, White raised a new objection to the career

- offender enhancement based on the Supreme Court’s intervening decision in Kisor

. To understand his argument requires a brief explanation of how th is familiar provision works . As its name implies, t he guideline6 No. 22-2014

applies to recidivist s ; it raises the base offense level for defendant s who repeatedly commit certain kinds of felon y offenses

. The guideline applies when (1) the offense of conviction is a felony “crime of violence” or “ controlled substance offense” and (2) the defendant has two or more prior felony convictions for a “crime of violence” or “controlled substance offense.” Id. § 4B1.1(a). Until very recently, the definition s of “crime of violence” and “controlled substance offense” in the career

- offender guideline did not address inchoate offenses like conspiracy

. Id. § 4B1.2 (a)

– (b) (No v. 1, 2021)

. But the Sentencing Commission explained in t he commentary that the term s “crime of violence” and “controlled substance offense ” include “the offenses of aiding and abetting, conspiring, and attempting to commit such offenses .” § 4B1.2 cmt. n.1

. Based on the Supreme Court’s decision in Stinson , 508 U.S. at 38, we have long deferred to A pplication N ote 1 as the Sentencing Commission’s authoritative interpretation of the career

- offender guideline. See Smith , 989 F.3d at 583–85; Adams , 934 F.3d at 727–30; Raupp , 677 F.3d at 758–59. At resentencing White argued that the Supreme Court’s
recent decision in Kisor unsettled our circuit caselaw regarding the validity of A pplication N ote 1. Drawing on Kisor ’s less deferential approach to agenc ies’ interpretations of their own rules , White maintained that because the definition of “controlled substance offense” in § 4B1.2 (b) does not itself mention inchoate offenses , the guideline is clear on its face and court s may not consider

— much less defer to

— A pplication Note 1

. Bound by circuit precedent, t he judge rejected White’s argument and once again applied the career

- offender G uide-No. 22-2014 7

line . B ut she also determined that its e ffect on White’s guidelines range may have overstate d his culpability . F or that reason and several others, she imposed a below -G uidelines sentence of 10 years.
II. Discussion On appeal White challenges his career

- offender designation on two grounds, b oth centering on the validity of Application Note 1 to § 4B1.2 . ( T he Sentencing Commission recently amended § 4B1.2; we refer here to the November 1, 2021 versi on of the Guidelines .) White’s main argument reiterates his c ontention that Kiso r ’s modifi cation of agency deference implicates Stinson and unsettle s our circuit caselaw deferring to Application Note 1

. In the alternative , he argues that the application note is invalid under the“major questions doctrine” and the Supreme Court’s decision in West Virginia v. EPA , 597 U.S. 697.
A. Kisor and Application Note 1 to § 4B1.2
U ntil recently, § 4B1.2— which defin es the terms “crime of violence” and “ controlled substance offense ” as used in the career

- offender guideline

— was silent on whether convictions for inchoate offenses count as career

- offender predicates

. Instead, t he Sentencing Commission addressed the subject of inchoate offenses in the commentary

. In Application Note 1 to § 4B1.2 , the Commission instructed sentencing courts that the terms “‘[ c ] rime of violence ’ and ‘ controlled substance offense ’ include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” § 4B1.2 cmt. n.1. Under the Supreme Court’s decision in Stinson , the Commission’s co mmentar y interpreting or explaining a8 No. 22-2014

guideline is authoritative and entitled to controlling weight

“ unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that g uideline.” 508 U.S. at 38. Applying Stinson , we have repeatedly given Application Note 1 controlling weight a s an authoritative interpretation of the term “ controlled substance offense ” in § 4B1.2

. Smith , 989 F.3d at 585; see also Adams , 9 34 F.3d at 729 (finding no conflict between the “application note’s inclusion of conspiracy” and the “text of the Guideline itself”) ; Raupp , 677 F.3d at 759. Most o ther circuits agreed.
In Smith

— the most recent in this line of cases — we acknowledged a newly emerging circuit split on the validity of Application Note 1 but declined an invitation to change our position . 989 F.3d at 584 –85. The disagreement among the circuits has widened since Smith as more c ourts of appeals have reconsidered their Stinson

- based precedent s deferring to Application Note 1

. Some of these shifts were occasioned by the Supreme Court’s 2019 decision in Kisor ; others slightly predated it.
Here’s the current lineup: S ix circuits have held that Application Note 1 impermissibly expands § 4B1.2’s definition of “controlled substance offense.” See United States v. Castillo , 69 F.4th 648 (9th Cir. 2023); United States v. Dupree , 57 F.4th 1269 (11th Cir. 2023) (en banc) ; United States v. Campbell , 22 F.4th 438 (4th Cir. 2022); United States v. Nasir , 982 F.3d 144 (3d Cir. 2020) (en banc), vacated on other grounds , 142 S. Ct. 56 (2021) (mem.)) ; United States v. Havis , 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam); United States v. Winstead , 890 F.3d 1082 (D.C. Cir. 2018).No. 22-2014 9

S ix circuits ( including our s ) have declined to reconsider circuit precedent defer ring to Application Note 1

. See United States v. Vargas , 74 F.4th 673, 689–90 (5th Cir. 2023) (en banc) (holding that Stinson governs and “requires us to defer” to Application Note 1); United States v. Maloid , 71 F.4th 795, 805 (10th Cir. 2023) (affirming precedent upholding the validityof Application Note 1’s inclusion of conspiracy in the definition of “crime of violence”); Smith , 989 F.3d at 585 (noting the emerging circuit split but adhering to circuit precedent, seeing “no reason here to diverge from it”); United States v. Jefferson , 975 F.3d 700, 708 (8th Cir. 2020) (acknowledging Winstead and Havis but adhering to circuit precedent holding Application Note 1 valid); United States v. Lewis , 963 F.3d 16, 18, 25 (1st Cir. 2020) (a dhering to circuit precedent finding Application Note 1 “authoritative” while acknowledging the

“ question is close”) ; United States v. Richardson , 958 F.3d 151, 154 (2d Cir. 2020) (“Application Note 1 is not ‘inconsistent with, or a plainly erroneous reading of[,]’ § 4B1.2.” (quoting Stinson , 508 U.S. at 38)). We require a compelling reason to overrule circuit precedent

. Campbel l v. Kallas , 936 F.3d 536, 544 (7th Cir. 2019). White urges us to change course based on the Supreme Court’s decision in Kisor v. Wilkie , which clarified the deference owed to an agency’s interpretation of its own regulations under the rule of Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410, 413–14 (1945).
In Kisor the Court considered whether to overrule Seminole Rock and “discard[] the deference” it “give[s] to agencies.” 2 139 S. Ct. at 2408. The Court declined to do so but

2 The deference doctrine announced in Seminole Rock is also referred to as

“ Auer deference.” See Auer v. Robbins , 519 U.S. 452 (1997). The Supreme10 No. 22-2014

“ reinforce[d]” Seminole Rock ’s limitations. Id. Specifically, t he Court held that court s should defer to an agency’s interpretation of a regulation only in cases o f “genuine ambiguity” after first “exhaust [ing] all the traditional tools of construction.” Id. at 2415 ( quotation marks omitted). If a regulation is genuine ly ambiguous , the court should defer to the agency’s interpretation only if it is reasonable— that is, only if the interpretation “ come[s] within the zone of ambiguity the court has identified.” Id. at 2415

– 16. Finally, the court must determine “whether the character and con text of the agency interpretation entitles it to controlling weight.” Id. at 2416. Kisor identified some factors that inform this last step in the restated deference formula . First, the interpretation “must be the agency’s authoritative or official position” rather than an “ad hoc statement not reflecting the agency’s views.” Id. (quotation marks omitted). Second, the interpretation “must in some way implicate [the agency’s] substantive expertise.” Id. at 2417. And third, the agency’s reading “must reflect fair and considered judgment.” Id. (quotation marks omitted).
It’s fair to say that Kisor’ s re finement of Seminole Rock reduced the level of deference owed to an agency ’s interpretation of its own regulations. But Kisor ’s effect on Stinson is

un clear

. Stinson borrowed from Seminole Rock because the Court viewed the Guidelines commentary as in some respects “ akin to an agency’s interpretation of its own legislative rules .” 508 U.S. at 45. But the Court also cautioned that “the analogy is not precise.” Id. at 44. T he Sentencing Commission is not an executive agency ; it is an independent commission within the judicial branch

. See 28 U.S. C . § 991(a).

Court discussed Auer and Seminole Rock interchangeably in Kisor , so the terminology makes no difference here.No. 22-2014 11

And i ts statutory charge is unique in ways that affect th e deference calculus

. See Stinson , 508 U.S. at 44–45; Vargas, 74 F.4th at 682–83; Maloid , 71 F.4th at 806–07.

P erhaps most importantly, the Court said nothing in Kisor
to s uggest that it was alter ing Stinson

. Indeed, Stinson is cited only in a footnote along with 1 6 other cases as examples of “decisions applying Seminole Rock deference .” Kisor , 139 S. Ct. at 2411 n.3. Because Kisor did not address Stinson in a ny meaningful way , we do not see a compelling reason to reconsider our circuit precedent treating Application Note 1 as authoritative gloss on the career

- offender guideline

. Indeed, t he Supreme Court has instructed us to resist invitations to find its decisions overruled by implication

. Mallory v. Norfolk S. Ry. Co. , 143 S. Ct. 2028, 2038 (2023). Kisor did not purport to modify Stinson (much less overrule it)

. Th at’s reason enough for us to stay the course. When a Supreme Court decision is directly controlling , our job is to follow it, “ leaving to th [e] Court the prerogative of overruling its own decisions.” Id. (quotation marks omitted). That’s true even if “intervening decisions have eroded [its] foundation.” Price v. City of Chicago , 915 F.3d 1107, 1111 (7th Cir. 2019).
The disagreement among the circuit s— now quite entrenched

— is another reason not to change position s. Unless our circuit is an outlier, “it makes little sense for us to jump from one side of the circuit split to the other .” A.C. by M.C. v. Metro

. Sch

. Dist

. of Martinsville , 75 F.4th 760, 771 (7th Cir. 2023). As we explained in another case asking us to switch sides in a pronounced circuit split :12 No. 22-2014

Precedents are not sacrosanct; we have overruled many. But when the issue is closely balanced (the 5 to 4 division among the circuits reveals at least that much), there is less reason to think that a shift will undo rather than create an error. ... When one circuit’s overruling would convert a 5

– 4 conflict into a 4

– 5 conflict, it is best to leave well enough alone.
Buchmeier v. United States , 581 F.3d 561, 56 5–6 6 (7th Cir. 2009) (en banc).

Because Kisor did not unsettle Stinson , we decline to reconsider our circuit c aselaw deferring to A pplication Note 1

. B. “Major Questions Doctrine” Alternatively, White invokes the “major questions doctrine” and the Supreme Court’s decision in West Virginia , argu ing that the Sentencing Commission lacked clear congressional authorization to include inchoate offenses as

career

- offender predicates. 3 This argument requires only brief treatment : t he major questions doctrine does not apply here

.

3 W hite did not raise t hi s argument b e l o w

. His failure to do so is in a sense understandable because the Supreme Court ’ s decision in West Virginia was issued about a month after his resentencing hearing. On the other hand, the major questions doctrine is not ne w , so he could have raised an argument along these lines at his resentencing hearing

— or at his initial sentencing in 2019, for that matter. But the government has not rai sed waiver or forfeiture, choosing instead to address the argument on th e merits. See United States v. Stapleton , 5 6 F .4th 532, 541 (7th Cir. 2022) ( explaining that a party can “waive waiver” by failing to assert it).No. 22-2014 13

The doctrine derives from the basic principle that statutory texts “must be read in their context and with a view to their place in the overall statutory scheme.” West Virginia , 597 U.S. at 721 (quotation marks omitted). W hen a statute “confers authority upon an administrative agency,” the judiciary’s interpretive task “must be ‘shaped, at least in some measure, by the nature of the question presented’

— whether Congress in fact meant to confer the power the agency has asserted.” Id. (quoting FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 159 (2000)). In the “ordinary case,” th e question of the scope of the agency’s authority “has no great effect on the appropriate analysis.” Id. But in certain “extraordinary cases,” a “different approach” may apply. Id.
Wh en does a case qualify as extraordinary enough to bring the major questions doctrine into play ? T he Court explained in West Virginia : the doctrine applies when an agency has adopted a regulatory scheme of great economic and political significance , and the “history and the breadth” of its assertion of authority “provide a reason to hesitate before concluding that Congress meant to confer such authority.” Id. ( internal quotation marks omitted). In this limited category of cases, the government must “point to clear congressional authorization” to justify the agency’s power “to regulate in that manner.” Id. at 732 ( internal quotation marks om itted). Though the precise contours of the doctrine remain hazy , see Biden v. Nebraska , 143 S. Ct. 2355, 2376 (2023) (Barrett, J., concurring), White’s case plainly lacks the hallmarks of the truly extraordinary cases that have triggered it. West Virginia , 597 U.S. at 721 –23 . Application Note 1 to § 4B1.2 can hardly14 No. 22-2014

be characterized as a “transformative expansion” of the Sentencing Commission’s statutory authority. Id. at 724 . The Commission has not “claim[ed] to discover in a long

- extantstatute an unheralded power” to regulate in an unprecedented way. Id. (quotation marks omitted). Nor has theCommission attempted to use vague language in the governing statute to “adopt a regulatory program that Congress ha[s] conspicuously and repeatedly declined to enact itself.” Id. On the contrary, the Sentencing Reform Act specifically authorizes the Commission to make decisions like this one concerning sentencing policy. See 28 U.S.C. § 991(b) (1) ( empowering the C ommission to “establish sentencing policies and practices for the Federal criminal justice system”) ; see also id. § 994 (a)

– (b) (empowering the Commission to promulgate sentencing guidelines and “general policy statements regarding application of the guidelines or any other aspect of sentencing or sentence implementation”)

. The Act gives the Commission “significant discretion in formulating guidelines,” “assess[ing] the relative weight of [certain] offender characteristics,” and “exercis[ing] its judgment about which types of crimes and which types of criminals are to be considered similar for the purposes of sentencing.” Mistretta v. United States , 488 U.S. 361, 377

– 78 (1989). And t he Commission has addressed the issue of inchoate offenses in the commentary to the career

- offender guideline ever sinc e it promulgated the first Guidelines Manual in 1987. SeeU.S.S.G. § 4B1.2 cmt. n.2 (1987) (explaining that the definition of “controlled substance offense” in the career

- offender guideline “includes aiding and abetting, conspiring, or attempting to commit such offenses”).No. 22-2014 15

Indeed , we held 30 years ago that the Commission’s broad statutory power to promulgate sentencing guidelines includes the authority to issue commentary treat ing inchoate offenses as career

- offender predicates. United States v. Damerville , 27 F.3d 254, 256 –57 (7th Cir. 1994). Though the issue was not framed in terms of the present

- day major questions doctrine, Damerville forecloses White’s argument.

* * *
Before closing, we note that the Sentencing Commission recently addressed the circuit split regarding Application Note 1. The Commission amended § 4B1.2 to add inchoate offenses to the definition s of “crime of violence” and “controlled substance offense,” moving the text of Application Note 1 to the guideline itself. The amendment became effective on November 1, 2023.
A FFIRMED