UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. RUSSELL FOREMAN, Defendan t -Appellant. No. 22-1255 (D.C. No. 1:21-CR-00165-RM-1) (D. Colo)

ORDER AND JUDGMENT *

Before EID , SEYMOUR , and KELLY , Circuit Judges.
Russell Foreman was sentenced to sixty-si x months’ incarceration for fraudulently obtaining COVID-19 pandemic relief funds. He asserts his sentence was improperly enhanced by the district court when it applied a 14-level increase to his base offense level. Specifically, Foreman argues the word “loss” in Sentencing Guideline § 2B1.1(b) plainly, and only, means “actual loss.” He thus argues the court was precluded under Kisor v. Wilkie , 139 S. Ct. 2400 (2019), from relying on co mmentary to § 2B1.1(b) defining “loss” as “the greater of actual loss or intended loss .” Foreman’s argument is foreclosed by our

* After examining the briefs and appellate reco rd, this panel has decided unanimously that oral argument would not materially assi st the determination of this appeal. See Fed. R. App. P. 343(a)(2); 10th Cir. R. 34.1(G). Th e case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and cond itions of 10th Cir. R. 36.3. FILED United States Court of Appeals Tenth Circuit 

### February 12, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 22-1255 Document: 010110998793 Date Filed: 02/12/2024 Page: 12 recent decision in United States v. Maloid , 71 F.4th 795 (10th Cir. 2023). Therefore, we affirm. Background Between March and October 2020, Fore man submitted nine fraudulent loan applications to the Small Business Admini stration to obtain COVID-19 pandemic relief funds authorized under the Coronavirus Ai d, Relief, and Economic Security (“CARES”) Act. Some, but not all, of Foreman’s fraudulent applications bore illicit fruit, to the taste of $367,552.00. Foreman was indicted for wire fraud in violation of 18 U.S.C. § 1343, money laundering in violation of 18 U.S.C. § 1957, conspiracy in violation of 18 U.S.C. § 371, and aiding and abetting in violation of 18 U.S. C. § 2. He ultimately pleaded guilty to wire fraud and money laundering. At sentencing, the key issue was the govern ment’s amount of “loss.” This amount was necessary to calculate Foreman’s base o ffense level under United States Sentencing Guidelines (“U.S.S.G”) § 2B1.1(b)(1). Both parties agree that Foreman fraudulently received $367,552.00. Both also agree that Foreman unsucce ssfully attempted to receive at least an additional $220,000.00. The parties further agreed when calculating Foreman’s base offense level that a 12-level increase applied because the loss to the government—the $367,552.00 that Foreman received—was between $250,000.00 and $550,000.00. See § 2B1.1(b)(1)(H). On this last point, the district cour t disagreed. It observed that § 2B1.1’s commentary defined “loss” as “the greater of actual loss or intended loss .” § 2B1.1 cmt. Appellate Case: 22-1255 Document: 010110998793 Date Filed: 02/12/2024 Page: 23 n.3(A) (emphasis added). Because Foreman submitted unsuccessful applications for at least another $220,000.00, the court found that he had intended lo sses to the government of $587,552.00. Under § 2B1.1, this corre sponded to a higher 14-level increase. 1 Foreman objected to the court’s reliance on commentary note 3(A)’s definition of “loss,” arguing principally that because “lo ss” in the guideline was unambiguous, the Supreme Court’s ruling in Kisor made deference to the commentary impermissible. The district court overruled this objection and, considering the 14-level increase, imposed a sixty-six month sentence. Foreman timely appealed.
Discussion Foreman argues that the district court e rred when it determined his offense level using § 2B1.1’s commentary be cause he asserts that post- Kisor a court may only consider such commentary if a guideline is “genuinely ambiguous.” He further argues that because the word “loss” in § 2B 1.1 unambiguously means actual losses—not intended losses—the court should not have deferred to the comment incorporating intended loss into § 2B1.1. “We review the district court’s sentenci ng decision for an abuse of discretion.” United
States v. Jones , 15 F.4th 1288, 1291 (10th Cir. 2021). Th e district court’s legal conclusions we review de novo. Id. Foreman’s argument below and on appeal hi nges on a singular issue: whether, in the context of the Sentencing Guidelines ’ commentary, the Supreme Court in Kisor abrogated

1 The difference between the 12- and 14-l evel enhancements increased Foreman’s guideline range from 51–63 m onths to 63–78 months. Appellate Case: 22-1255 Document: 010110998793 Date Filed: 02/12/2024 Page: 34 its prior holding in Stinson v. United States , 508 U.S. 36 (1993). As Foreman now acknowledges in his reply, our recent decision in Maloid held that Kisor did not abrogate
Stinson and, as such, his appeal is foreclosed. We begin with the guideline and the associ ated comment at is sue. The guideline under which Foreman’s sentencing range was ca lculated was U.S.S.G. § 2B1.1, for fraudrelated offenses. Per that guideline, if the vi ctim’s “loss” is over $6,500, the defendant’s base offense level is enhanced via a graduati ng scale. § 2B1.1(b)(1). The guideline itself, however, does not define “loss.” Rather, “loss” is defined in commentary note 3 to the guideline, which defines “loss” as the “great er of actual loss or intended loss.” § 2B1.1 cmt. n.3(A). 2
In Stinson v. United States , the Supreme Court addressed whether Sentencing Guideline commentary, lik e commentary note 3, was enforceable. It held that commentary to a guideline was entitled to “binding” weight so long as it “does not run afoul of the Constitution or a federal statute, and [] is not ‘plainly erroneous or inconsistent’ with” the guideline it interprets. Stinson , 508 U.S. at 47 (quoting Bowles v. Seminole Rock & Sand
Co. , 325 U.S. 410, 414 (1945)). The Court held this, in pa rt, because “[a]lthough the analogy is not precise,” “the guidelines are the equivalent of legislative rules adopted by

2 The commentary note goes on to further define “actual loss” as “the reasonably foreseeable pecuniary harm that resulted fro m the offense.” § 2B1.1 cmt. n.3(A)(i). It defines “intended loss” as “the pecuniary ha rm that the defendant purposely sought to inflict; and [] includes intended pecuniary ha rm that would have been impossible or unlikely to occur . . . .” § 2B1.1 cmt. n.3(A)(ii). Appellate Case: 22-1255 Document: 010110998793 Date Filed: 02/12/2024 Page: 45 federal agencies” and, as such, entitled to deference. Id. at 44–45. See also Maloid , 71 F.4th at 802. This circuit has “dutifully applied [ Stinson ’s] rule.” Maloid , 71 F.4th at 803 (pointing to United States v. Morris , 562 F.3d 1131 (10th Cir. 2009), and United States v.
Martinez , 602 F.3d 1166 (10th Cir. 2010), as examples). Here, then, under Stinson , we could only find error with the district court’ s deference to commenta ry note 3 if that commentary ran afoul of the Cons titution or a federal statute, or was plainly erroneous or inconsistent with § 2B1.1. See Stinson , 508 U.S. at 47. In the district court and on appeal, Fore man contends that analysis was outdated considering the Supreme Court’s recent holding in Kisor v. Wilkie . In Kisor , the Court held that an executive agency ’s interpretation of its own regula tions is only entitled to deference if that regulation is “genuinely ambiguous.” Kisor , 139 S. Ct. at 2415. Because Stinson held that the Guidelines’ “comme ntary is akin to an agency ’s interpretation of its own legislative rules,” Foreman argues, Kisor now requires that a guideline be “genuinely ambiguous” before a court defers to a commentary interpreting a guideline. Stinson , 508
U.S. at 45. 3 While Foreman’s case was on appeal , we decided otherwise. In United States v. Maloid , we held that Kisor did not abrogate Stinson and, as such, that Guideline “Commentary governs unless it ‘run[s] afoul of the Constitution or a federal statute’ or is

3 Assuming we agreed Kisor ’s framework was the correct one to apply, Foreman further argues that the word “loss” in § 2B1.1(b)(1 ) is not “genuinely ambiguous”—that it means plainly and only act ual loss—and that the district court thus committed error when it deferred to commentary note 3, which defi ned “loss” to include “intended loss.” Appellate Case: 22-1255 Document: 010110998793 Date Filed: 02/12/2024 Page: 56 ‘plainly erroneous or inconsistent’ with the guideline provisi on it interprets.” Maloid , 71 F.4th at 805 (quoting Stinson , 508 U.S. at 47). In Maloid , the district court construed Maloid’s prior conspiracy-to-menace convicti on as qualifying for a “crime of violence” enhancement. Id. at 798–99. The court did so by re lying on the guideline’s commentary, which defined a “crime of violence” as including conspiracies. Id. Like Foreman, Maloid alleged on appeal that the district court’s reliance on, and enforcem ent of, the commentary was improper post- Kisor

. See id. at 805 (“At bottom, Maloid’s argument turns on whether we accept his premise that Kisor [not Stinson ] controls how we inte rpret the Guidelines’ commentary.”). We were unconvinced. “ Kisor had everything to say about executive agencies,” we found, but “precious little [to say] about the Sentencing Commission.” Id. at 806. That distinction was “critical.” Id. Unlike the executive ag encies at issue in Kisor , we observed that “[t]he Commission is neither an executiv e agency nor strictly limited by the APA,” and that “[i]ts governing statute, th e SRA, includes the Commission in the judicial branch,” not the executive. Id. (emphasis added). Indeed, we noted that “when the Commission speaks, it speaks as an agent of the Judiciary to help judges properly sentence defendants.” Id. at 807. Those dissimilarities suggested “that Kisor [did not mean] for its new standard—crafted entirely in the context of executive agencies—to reach the Commission.” Id. “[A]bsent clear direction from the [Supre me] Court” otherwise, we held that “ Stinson remains good law” in our circuit when interpreting the Guidelines. Id. at 798, 805. Appellate Case: 22-1255 Document: 010110998793 Date Filed: 02/12/2024 Page: 67 Maloid makes the outcome of Foreman’s appeal clear, as he forthrightly admits. See United States v. Nichols , 775 F.3d 1225, 1230 (10th Cir. 2014 ) (“[O]ne panel of this court cannot overrule the judgment of another panel ‘absent en banc consideration . . . [or] an intervening Supreme Court deci sion that is contrary to or invalidates our previous analysis.’” (quoting United States v. Brooks , 751 F.3d 1204, 12 09 (10th Cir. 2014))), rev’d on other grounds , 578 U.S. 104 (2016). The standard announced that Stinson , not Kisor , controls in this circuit wh en interpreting Guid eline commentary. Therefore, Foreman’s argument to the contrary is foreclosed. Accordingly, we can reverse only if commentary note 3 runs afoul of the Constitution or a federal statute, or is plainl y erroneous or inconsis tent with § 2B1.1. See
Stinson , 508 U.S. at 47. The go vernment points us to United States v. Crowe , 735 F.3d 1229 (10th Cir. 2013), for the pr oposition that we have upheld note 3 as not erroneous or inconsistent with § 2B1.1. We agree. Indeed, Crowe is not our only case to do so. We have applied § 2B1.1’s commenta ry note 3 consistently. See, e.g. , United States v. Gordon , 710 F.3d 1124, 1161 (10th Cir. 2013); United States v. James , 592 F.3d 1109, 1114 (10th Cir. 2010); United States v. Masek , 588 F.3d 1283, 1287 (10th Cir. 2009); United States v. Orr , 567 F.3d 610, 615–17 (10th Cir. 2009); United States v. Baum , 555 F.3d 11 29, 1132–36 (10th Cir. 2009); United States v. Leach , 417 F.3d 1099, 1105–06 (10th Cir. 2005). Foreman does not squarely challenge, and we decline to revisit, our caselaw upholding § 2B1.1’s commentary note 3. Accordingl y, commentary note 3 does not violate Stinson ’s standard. Appellate Case: 22-1255 Document: 010110998793 Date Filed: 02/12/2024 Page: 78 Conclusion Because we held that Kisor did not abrogate Stinson ’s standard when analyzing the Sentencing Commission’s guideline commenta ry, we reverse only if we find that commentary note 3 violates the Constitution or a federal statute, or is plainl y erroneous or inconsistent with § 2B1.1. We do not so find and, therefore, we affirm.

Entered for the Court
Stephanie K. Seymour Circuit Judge Appellate Case: 22-1255 Document: 010110998793 Date Filed: 02/12/2024 Page: 8