FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEREK STEVEN TRUMBULL,

Defendant - Appellant.

No. 23-912

D.C. No.

9:22-cr-00052-

DLC-1

OPINION

Appeal from the United States District Court

for the District of Montana

Dana L. Christensen, District Judge, Presiding

Argued and Submitted May 6, 2024

Seattle, Washington

Filed August 22, 2024

Before: William A. Fletcher, Carlos T. Bea, and John B. 

Owens, Circuit Judges.

Opinion by Judge Owens;

Concurrence by Judge Bea
2 USA V. TRUMBULL

SUMMARY*

Criminal Law

The panel affirmed a sentence imposed on Derek Steven 

Trumbull following his guilty plea to being a felon in 

possession of a firearm.

Trumbull challenged the district court’s calculation of 

his Guidelines range—specifically, the increase of his 

offense level under U.S.S.G. § 2K2.1(a)(4)(B) on the ground 

that the offense involved a semiautomatic firearm that is 

capable of accepting a large capacity magazine. Section 

2K2.1 does not define a “semiautomatic firearm that is 

capable of accepting a large capacity magazine,” but 

Application Note 2 of the commentary to § 2K2.1 says it 

means:

a semiautomatic firearm that has the ability to 

fire many rounds without reloading because 

at the time of the offense (A) the firearm had 

attached to it a magazine or similar device 

that could accept more than 15 rounds of 

ammunition; or (B) a magazine or similar 

device that could accept more than 15 rounds 

of ammunition was in close proximity to the 

firearm. 

Trumbull did not dispute that the firearm he possessed, a 

Glock 17 loaded with a magazine containing seventeen 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
USA V. TRUMBULL 3

rounds of nine-millimeter ammunition, fell within 

Application Note 2. Instead, he attacked Application Note 2 

on its face as an invalid interpretation of § 2K2.1 under Kisor 

v. Wilkie, 588 U.S. 558 (2019).

The panel held that Application Note 2’s definition of 

“large capacity magazine” warrants deference under Kisor

because (1) the term “large capacity magazine” is 

ambiguous within the meaning of Kisor because of the 

relative nature of the word large; (2) Application Note 2 is a 

reasonable interpretation of “large capacity magazine”; and 

(3) Application Note 2 meets the three “especially important 

markers for identifying” when deference is appropriate in 

that (a) Application Note 2 is the Sentencing Commission’s 

official position, (b) the interpretation implicates the 

agency’s substantive expertise, and (c) Application Note 2 

was an exercise of the Commission’s fair and considered 

judgment.

The panel therefore concluded that the district court did 

not err in applying § 2K2.1(a)(4)(B), as interpreted by 

Application Note 2, to Trumbull’s base offense level.

Concurring in the judgment, Judge Bea disagreed with 

the majority that Application Note 2 of the commentary to 

§ 2K2.1 is entitled to deference under Kisor because, in his 

view, the term “large capacity magazine” is not “genuinely 

ambiguous.” Applying the traditional tools of construction 

to interpret the term “large capacity magazine,” and applying 

that term to the facts of this case, he concluded that the Glock 

17 that Trumbull possessed at the time of the offense—

which could accept a magazine with 17 rounds of 

ammunition—unambiguously qualifies as a “semiautomatic 

firearm that is capable of accepting a large capacity 
4 USA V. TRUMBULL

magazine” as that term was understood when the current 

version of § 2K2.1 was promulgated.

COUNSEL

Karla E. Painter (argued), Assistant United States Attorney, 

District of Montaana; Jesse A. Laslovich, United States 

Attorney; United States Department of Justice, United States 

Attorney’s Office, Missoula, Montana; Tim Tatarka, 

Assistant United States Attorney, United States Department 

of Justice, United States Attorney’s Office, Billings, 

Montana; for Plaintiff-Appellee.

John Rhodes (argued), Assistant Federal Public Defender; 

Rachel Julagay, Federal Defender, District of Montana; 

Federal Defenders of Montana (Missoula), Missoula, 

Montana; for Defendant-Appellant.

OPINION

OWENS, Circuit Judge:

Derek Steven Trumbull pled guilty to being a felon in 

possession of a firearm in violation of 18 U.S.C. § 922(g)(1) 

and received a below Guidelines sentence of twenty-four 

months’ imprisonment, followed by a three-year term of 

supervised release. He now challenges the calculation of his 

Guidelines range—specifically, the increase of his base 

offense level under U.S.S.G. § 2K2.1(a)(4)(B) (U.S. Sent’g 

Comm’n 2023). We affirm. 
USA V. TRUMBULL 5

I. BACKGROUND

On March 8, 2022, a Missoula Motel 6 employee called 

911 to report that a man had been passed out for over three 

hours in a running vehicle in the parking lot. Officers arrived 

to conduct a welfare check and found Derek Steven 

Trumbull in the car with a Glock 17 on his hip. The firearm

was loaded with a magazine containing seventeen rounds of 

nine-millimeter ammunition, and Trumbull was also 

carrying two spare Glock magazines—one equipped with 

the standard seventeen rounds of nine-millimeter 

ammunition and the other with eighteen rounds of ninemillimeter ammunition.

Trumbull had multiple prior felony convictions. 1 On 

October 26, 2022, he was indicted on federal felon-inpossession charges. He pled guilty without a plea agreement

to one count of being a prohibited person in possession of a 

firearm in violation of 18 U.S.C. § 922(g)(1).

The Probation Office’s Presentence Investigation Report 

(“PSR”) calculated Trumbull’s base offense level as twenty 

under U.S.S.G. § 2K2.1 (U.S. Sent’g Comm’n 2023), which 

is the Guideline for a violation of 18 U.S.C. § 922(g)(1). 

Section 2K2.1 sets the base offense level at twenty if “the

(i) offense involved a (I) semiautomatic firearm that is 

1 Specifically, Trumbull had two felony convictions for burglary, a 

felony conviction for attempted burglary, and a felony conviction for 

issuing a bad check. He also had misdemeanor convictions for theft, 

criminal trespass to a vehicle, conspiracy to commit theft, driving under 

the influence, and criminal possession of drug paraphernalia. 

In the time between his arrest and indictment in this case, Trumbull 

was arrested and charged in Montana state court with criminal 

possession of dangerous drugs (a felony), criminal possession of drug 

paraphernalia (a misdemeanor), and probation violations.
6 USA V. TRUMBULL

capable of accepting a large capacity magazine . . . and (ii) 

defendant (I) was a prohibited person at the time the 

defendant committed the instant offense.” § 2K2.1(a)(4)(B) 

(emphasis added). Section 2K2.1 does not define a 

“semiautomatic firearm that is capable of accepting a large 

capacity magazine,” but Application Note 2 of the 

commentary to § 2K2.1 (“Application Note 2”) says it 

means:

a semiautomatic firearm that has the ability to 

fire many rounds without reloading because 

at the time of the offense (A) the firearm had 

attached to it a magazine or similar device 

that could accept more than 15 rounds of 

ammunition; or (B) a magazine or similar 

device that could accept more than 15 rounds 

of ammunition was in close proximity to the 

firearm. 

§ 2K2.1 cmt. n.2.

The PSR deducted three levels for Trumbull’s 

acceptance of responsibility, so his total offense level was 

seventeen. Based on Trumbull’s offense level of seventeen 

and criminal history category of IV, his Guidelines range 

was thirty-seven to forty-six months’ imprisonment.

Trumbull objected to the PSR. He did not dispute that 

the firearm he possessed fell within Application Note 2. 

Instead, he attacked Application Note 2 on its face as an 

invalid interpretation of § 2K2.1 under Kisor v. Wilkie, 588 

U.S. 558 (2019). The district court overruled Trumbull’s 

objection and applied § 2K2.1, as interpreted in Application 

Note 2, in calculating Trumbull’s Guidelines range.
USA V. TRUMBULL 7

The district court sentenced Trumbull to a below 

Guidelines sentence of twenty-four months’ imprisonment,

followed by a three-year term of supervised release, to run 

concurrently with any sentences imposed in pending state 

proceedings. Trumbull has finished serving his federal 

prison term, and his federal supervised release will begin 

once he is released from state custody.

On appeal, Trumbull reasserts that Application Note 2 is 

an invalid interpretation of the phrase “semiautomatic 

firearm that is capable of accepting a large capacity 

magazine” in § 2K2.1, and the district court erred by 

adopting it.

II. DISCUSSION

A. Standard of Review and Kisor Deference 

We review a district court’s interpretation of the 

Guidelines de novo. United States v. Castillo, 69 F.4th 648, 

652 (9th Cir. 2023). 

The Supreme Court has said that the commentary to the 

Guidelines “is akin to an agency’s interpretation of its own 

legislative rules.” Stinson v. United States, 508 U.S. 36, 45 

(1993). As a result, we apply Kisor v. Wilkie, 588 U.S. 558 

(2019), to determine whether to defer to the commentary’s 

interpretation of a Guideline.2 Castillo, 69 F.4th at 655–56. 

2 In Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), the 

Supreme Court overruled Chevron, U.S.A., Inc. v. Natural Resources 

Defense Council, Inc., 467 U.S. 837 (1984), which “required courts to 

defer to ‘permissible’ agency interpretations of the statutes those 

agencies administer.” Loper Bright, 144 S. Ct. at 2254. The Supreme 

Court did not call Kisor into question in Loper Bright (and in fact cited 

it, see id. at 2261), and as the concurrence acknowledges did not overrule 

it, so we continue to apply it. 
8 USA V. TRUMBULL

B. Application Note 2’s Definition of “Large 

Capacity Magazine” Warrants Deference under

Kisor 

Kisor held that a court should defer to an agency’s 

interpretation of its own regulation if (1) the regulation is 

“genuinely ambiguous” after “exhaust[ing] all the 

‘traditional tools’ of construction”; (2) the interpretation is 

“reasonable”; and (3) “the character and context of the 

agency interpretation entitles it to controlling weight” 

because (i) the interpretation is the agency’s “‘official 

position,’ rather than any more ad hoc statement not 

reflecting the agency’s views”; (ii) the interpretation 

“implicate[s] [the agency’s] substantive expertise”; and 

(iii) the interpretation reflects the agency’s “fair and 

considered judgment.” 588 U.S. at 574–79 (citations 

omitted). Application Note 2 satisfies these requirements. 

First, the term “large capacity magazine” is ambiguous

within the meaning of Kisor because of the relative nature of 

the word “large.” In Entergy Corp. v. Riverkeeper, Inc., 556 

U.S. 208 (2009), the Supreme Court considered whether to 

defer to the Environmental Protection Agency’s 

interpretation of the phrase “best technology available for 

minimizing adverse environmental impact” under Chevron, 

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 

U.S. 837 (1984), overruled by Loper Bright Enters. v. 

Raimondo, 144 S. Ct. 2244 (2024). Entergy Corp., 556 U.S. 

at 218–19. Like Kisor, Chevron required ambiguity for 

deference. Chevron, 467 U.S. at 842–43. In Entergy Corp.,

the Court applied Chevron and upheld the agency’s 

interpretation after rejecting the argument that “minimizing” 

conclusively meant “reducing to the smallest amount 

possible” because “‘minimize’ is a term that admits of 

degree and is not necessarily used to refer exclusively to the 
USA V. TRUMBULL 9

‘greatest possible reduction.’” Entergy Corp., 556 U.S. at 

218–19. 

Like “minimize,” “large” is ambiguous because it 

“admits of degree.” Id. at 219. The Oxford English 

Dictionary Online defines “large” as “[g]reat in size, 

amount, or degree; big; wide; full.” Large, Oxford English 

Dictionary Online, https://www.oed.com/dictionary/

large_adj?tab=meaning_and_use#39730644 (last visited 

July 29, 2024). “Large” is a comparative term. Whether a 

magazine’s capacity is “large” may vary depending on the 

context or the purpose for which the magazine is used. As a 

result, there is “uncertaint[y]” about the meaning of “large 

capacity magazine.” Kisor, 588 U.S. at 566. 

The structure of § 2K2.1 does not resolve this 

uncertainty, nor do its history or purpose. The phrase “large 

capacity magazine” was added to § 2K2.1 in 2006, when the 

U.S. Sentencing Commission (“the Commission”) amended 

§ 2K2.1 to delete cross-references to expired provisions of 

the Violent Crime Control and Law Enforcement Act of 

1994, Pub. L. No. 103–322, 108 Stat. 1796. U.S.S.G., Supp. 

Appx. C. Amend. 691 (Nov. 1, 2006). The Violent Crime 

Control and Law Enforcement Act of 1994 defined “large 

capacity ammunition feeding device” as “a magazine . . . that 

has a capacity of . . . more than 10 rounds of ammunition.” 

Violent Crime Control and Law Enforcement Act of 1994 

§ 110103(b) (formerly codified at 18 U.S.C. § 921(a)(31)). 

This differing definition of “large capacity magazine” also 

suggests that the phrase is ambiguous. 

Trumbull asserts that “large capacity magazine” is not 

“ambiguous” under Kisor because “[t]he plain language 

definition of large is ‘relatively great.’” Thus, Trumbull 

concedes that “‘large’ is a relative measure” but suggests 
10 USA V. TRUMBULL

that this relativity is not enough for ambiguity within the 

meaning of Kisor. We disagree. A vague or imprecise 

regulation can be ambiguous under Kisor. See Rafferty v. 

Denny’s, Inc., 13 F.4th 1166, 1181 (11th Cir. 2021) 

(rejecting the argument that “when Kisor said a regulation 

must have ‘multiple reasonable meanings,’ it required, for 

the first time, that a regulation not be just ‘vague’ or lack 

precision . . . but that it satisfy essentially a term-of-art 

definition of ‘ambiguous’”). Accordingly, because “large 

capacity magazine” is a relative term with a meaning that

may vary depending on the context, it is ambiguous under 

Kisor. 

Second, Application Note 2 is a reasonable interpretation 

of “large capacity magazine.” At least twelve states restrict 

or regulate the possession of large capacity magazines,3 and 

three of those states define large capacity magazine as 

Application Note 2 does.4 Eight states restrict magazines 

capable of accepting ten rounds of ammunition.5 Only one 

3 Cal. Penal Code § 32310, held unconstitutional by Duncan v. Bonta, 

695 F. Supp. 3d 1206, 1213 (S.D. Cal. 2023); Colo. Rev. Stat. § 18-12-

302; Conn. Gen. Stat. § 53-202x; Del. Code Ann. tit. 11, § 1469; Haw. 

Rev. Stat. § 134-8; 720 Ill. Comp. Stat. 5/24-1.10; Mass. Gen. Laws ch. 

140, § 131M; N.J. Stat. Ann. § 2C:39-3, held preempted on other 

grounds in Fed. Law Enf’t Officers Ass’n v. Att’y Gen. N.J., 93 F.4th 

122, 124 (3d. Cir. 2024); N.Y. Penal Law § 265.37 (originally setting the 

floor at seven rounds but now setting it at ten rounds per N.Y. Penal Law 

§ 265.00); 11 R.I. Gen. Laws § 11-47.1-3; Vt. Stat. Ann. tit. 13, § 4021; 

Wash. Rev. Code § 9.41.370. 

4 Colo. Rev. Stat. § 18-12-301; 720 Ill. Comp. Stat. 5/24-1.10; Vt. Stat. 

Ann. tit. 13, § 4021. 

5 Cal. Penal Code § 16740; Conn. Gen. Stat. § 53-202w(a)(1); Haw. Rev. 

Stat. § 134-8; Mass. Gen. Laws ch. 140, § 121; N.J. Stat. Ann. § 2C:39-

1; N.Y. Penal Law § 265.00; 11 R.I. Gen. Laws § 11-47.1-2; Wash. Rev. 

Code § 9.41.010. 
USA V. TRUMBULL 11

state sets the floor higher.6 Likewise, Congress itself has 

previously defined “large capacity ammunition feeding 

device” as “a magazine . . . that has a capacity of . . . more 

than 10 rounds of ammunition.” Violent Crime Control and 

Law Enforcement Act of 1994 § 110103(b). Application 

Note 2’s interpretation of “large capacity magazine” as more 

than fifteen rounds “come[s] within the zone” of these other 

definitions—somewhere between ten and seventeen rounds. 

Kisor, 588 U.S. at 576. 

Trumbull contends that “large capacity magazine” 

should be defined in relation to a standard capacity 

magazine, and that standard capacity should, in turn, be 

defined based on what is popular within the gun industry. 

The popularity of a firearm with a seventeen-round capacity 

does not defeat the reasonableness of Application Note 2. 

Something can be both popular and large, such as the 

standard capacity magazine of this popular firearm. But the 

popularity of that firearm does not mean that a magazine that 

can accept more than fifteen rounds is not also a “large 

capacity magazine.”

Trumbull also objects to the “numeric specificity” of 

Application Note 2. He asserts that, by promulgating a 

bright-line rule, the Commission was legislating rather than 

interpreting. But Application Note 2 is a valid interpretive 

rule because it “explain[s]” the Guidelines by specifying 

what constitutes “large.” United States v. Kirilyuk, 29 F.4th 

1128, 1138 (9th Cir. 2022). It does “not enact policy 

changes to them.” Id. Consequently, Application Note 2’s 

interpretation of “large capacity magazine” is reasonable. 

6 Del. Code Ann. tit. 11, § 1468 (more than seventeen rounds).
12 USA V. TRUMBULL

Finally, Application Note 2 meets the three “especially 

important markers for identifying” when deference is 

appropriate. Kisor, 588 U.S. at 576–77. First, the parties 

agree that Application Note 2 is the Commission’s “official 

position,” id. at 577 (quoting United States v. Mead Corp., 

533 U.S. 218, 257–59 & n.6 (2001) (Scalia, J., dissenting)), 

which weighs in favor of deference.

Second, in assessing the relative dangerousness of 

magazines of different capacities, the Commission acted 

within the scope of its authority, see id. at 577–78, to 

“establish sentencing policies and practices for the [f]ederal 

criminal justice system,” 28 U.S.C. § 991(b)(1). Trumbull 

argues that Application Note 2 does not implicate the 

Commission’s substantive expertise because it “parrots the 

statutory text” of the Violent Crime Control and Law 

Enforcement Act of 1994. But Application Note 2 does not 

“parrot the statutory text” because Application Note 2 

provides a different (and more lenient) definition of large 

capacity magazine than the Violent Crime Control and Law 

Enforcement Act of 1994 did. Indeed, Application Note 2 

sets a higher floor for “large capacity magazine.” 

Third, the Court in Kisor cautioned against deferring to 

a “convenient litigating position” or “new interpretation . . . 

that creates ‘unfair surprise’ to regulated parties.” 588 U.S. 

at 579 (first quoting Christopher v. SmithKline Beecham 

Corp., 567 U.S. 142, 155 (2012); and then quoting Long 

Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170 

(2007)). These concerns are not present here. While the 

Commission is not required to submit commentary to notice

and comment or congressional review, the challenged 

definition in Application Note 2 was, in fact, published in 

the Federal Register with a “request[] [for] comment 

regarding whether there is an alternative definition [the 
USA V. TRUMBULL 13

Commission] should consider,” see Sentencing Guidelines 

for United States Courts, 71 Fed. Reg. 4782, 4789–90 (Jan. 

27, 2006) (defining “[h]igh-capacity, semiautomatic 

firearm” as “a semiautomatic firearm that has a magazine 

capacity of more than [15] cartridges” (second alteration in 

original)), and submitted to Congress for review, Sentencing 

Guidelines for United States Courts, 71 Fed. Reg. 28063, 

28069–71 (May 15, 2006).7 These procedural steps support 

that Application Note 2 was an exercise of the Commission’s 

7 Indeed, while “[c]ourts and commentators tend to justify treating 

commentary as less authoritative than the guidelines in part on the 

ground that ‘[u]nlike the Guidelines themselves, . . . commentary to the 

Guidelines never passes through the gauntlets of congressional review or 

notice and comment[,]’ . . . their premise is mistaken.” United States v. 

Dupree, 57 F.4th 1269, 1280 (11th Cir. 2023) (en banc) (Pryor, C.J., 

concurring) (second and third alterations in original) (citation omitted). 

“Unlike most agency interpretive rules, Guidelines commentary 

ordinarily goes through the same notice-and-comment and congressional 

review procedures as substantive guideline revisions,” so “the difference 

between the Guidelines and the commentary ordinarily boils down to 

labels and formatting.” Id. at 1280–81 (Pryor, C.J., concurring). 

See also U.S. Sent’g Comm’n, Rules of Practice & Procedure, § 4.3 

(“[T]he Commission will endeavor to provide, to the extent practicable,

comparable opportunities [to publication in the Federal Register and 

public hearing procedure, as required by 28 U.S.C. § 994(x)], for public 

input on proposed . . . commentary . . . .”); id., § 4.1 (“[T]o the extent 

practicable, the Commission shall endeavor to include amendments 

to . . . commentary in any submission of guideline amendments to 

Congress and put them into effect on the same November 1 date as any 

guideline amendments issued in the same year.”); John S. Acton, The 

Future of Judicial Deference to the Commentary of the United States 

Sentencing Guidelines, 45 Harv. J.L. & Pub. Pol’y 349, 359 (2022) 

(“Lower courts have largely overlooked this change in practice and often 

mischaracterize the procedure that amendments to the commentary 

receive . . . .”). 
14 USA V. TRUMBULL

“fair and considered judgment.” Kisor, 588 U.S. at 579 

(quoting Christopher, 567 U.S. at 155). 

III. CONCLUSION

Application Note 2’s interpretation of “large capacity 

magazine” in § 2K2.1 meets the extensive requirements for 

deference laid out in Kisor. Therefore, the district court did 

not err in applying § 2K2.1(a)(4)(B), as interpreted by 

Application Note 2, to Trumbull’s base offense level when 

calculating his Guidelines range.

AFFIRMED. 

BEA, Circuit Judge, concurring in the judgment:

I agree that the Glock 17 that Defendant-Appellant 

Derek Trumbull possessed at the time of his offense qualifies 

as a “semiautomatic firearm that is capable of accepting a 

large capacity magazine” for purposes of enhancing his base 

offense level under the Sentencing Guidelines. See U.S.S.G. 

§ 2K2.1(a)(4)(B).

But I do not agree that Application Note 2 of the 

commentary to § 2K2.1 is entitled to deference under Kisor 

v. Wilkie because, in my view, the term “large capacity 

magazine” is not “genuinely ambiguous.” See Kisor v. 

Wilkie, 588 U.S. 558, 573 (2019). “Large capacity 

magazine” is not a term “genuinely susceptible to multiple 

reasonable meanings,” unless the context in which it was 

used were to include publications such as Time. See id. at 

581 (emphasis added); Bowles v. Seminole Rock & Sand Co., 

325 U.S. 410, 414 (1945) (deferring to an agency only “if 

the meaning of the words used is in doubt” (emphasis 

added)). All agree that the meaning of the term “large 
USA V. TRUMBULL 15

capacity magazine,” when used in relation to a firearm, is a 

firearm magazine that is “[g]reat in size, amount, or degree.” 

Large, Oxford English Dictionary. When, as here, a term has 

an “unquestionable meaning,” it is not made ambiguous 

merely because it has “uncertain application to various 

factual situations.” Antonin Scalia & Bryan A. Garner, 

Reading Law: The Interpretation of Legal Texts 31 (2012). 

People may disagree as to how many cartridges must fit into 

a magazine to make it “large.” But disagreement does not 

constitute ambiguity. And Kisor, which recognized the 

“strong judicial role in interpreting rules,” puts the onus on 

courts—not agencies—to interpret and apply unambiguous 

rules like § 2K2.1, even if those rules are vague or imprecise.

See Kisor, 588 U.S. at 580.

Rather than “wave the ambiguity flag” merely because 

the “regulation [is] impenetrable on first read,” see id. at 575, 

as the majority does today, I would “exhaust all the 

‘traditional tools’ of construction” to interpret the term 

“large capacity magazine” and apply that term to the facts of 

this case, see id. (quoting Chevron U.S.A., Inc. v. Nat. Res. 

Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984), overruled 

by Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 

(2024)). Here, the Glock 17 that Trumbull possessed at the 

time of his offense—which could accept a magazine with 17 

rounds of ammunition—unambiguously qualifies as a 

“semiautomatic firearm that is capable of accepting a large 

capacity magazine” as that term was understood when the 

current version of § 2K2.1 was promulgated. See U.S.S.G. 

§ 2K2.1(a)(4)(B). That should be the end of the matter. We 

have “no business deferring to any other reading” when the 

regulatory language applies unambiguously to the facts 

before us. See Kisor, 588 U.S. at 575. After all, it “makes no 

sense to speak of a ‘permissible’ interpretation that is not the 
16 USA V. TRUMBULL

one the court, after applying all relevant interpretive tools, 

concludes is best.” Loper Bright, 144 S. Ct. at 2266.

Accordingly, I agree that the district court’s sentencing 

order should be affirmed. But the majority’s choice to assign 

interpretive authority over the unambiguous language in 

§ 2K2.1 to the Sentencing Commission “rests on a profound 

misconception of the judicial role” and expands Kisor 

deference far beyond its limited scope. See id. at 2268. I 

therefore concur only in the judgment.

I.

A.

In 1994, Congress enacted the Violent Crime Control 

and Law Enforcement Act, Pub. L. No. 103–322, 108 Stat. 

1796 (the “Act”). The Act made it unlawful to possess 

specified firearms, as well as “large capacity ammunition 

feeding devices,” which it defined as a “magazine . . . that 

has a capacity of . . . more than 10 rounds of ammunition.” 

Violent Crime Control and Law Enforcement Act, 

§ 110103(b) (formerly codified at 18 U.S.C. § 922(a)(31)). 

The Act also directed the Sentencing Commission to amend 

the Sentencing Guidelines to provide for a sentencing 

enhancement in cases in which a “semiautomatic firearm is 

involved.” Id. § 110501. 

In response, the Sentencing Commission took two 

actions. First, it amended § 2K2.1 to cross-reference the Act 

and, in turn, to provide for an enhanced sentence in cases in 

which an offender possessed a firearm specified in the Act. 

U.S.S.G. § 2K2.1, Amend. 522 (Nov. 1995). Second, it 

amended § 5K2.17 to “provide a specific basis for an upward 

departure when a high-capacity semiautomatic firearm is 

possessed.” U.S.S.G. § 5K2.17, Amend. 531 (Nov. 1995). 
USA V. TRUMBULL 17

Section 5K2.17, like the Act, defined the term “highcapacity, semiautomatic firearm” as a firearm “that has a 

magazine capacity of more than ten cartridges.” U.S.S.G. 

§ 5K2.17 (1995).

In 2004, Congress allowed the weapons prohibitions of 

the Act to expire. Because § 2K2.1 had cross-referenced the 

provisions of the Act, the Sentencing Commission amended 

§ 2K2.1 to “clarify that the enhanced base offense levels 

continued to apply in the wake of the sunset of the federal 

assault weapons ban.” United States v. Gordillo, 920 F.3d 

1292, 1298 (11th Cir. 2019); see U.S.S.G. § 2K2.1, Amend. 

691 (Nov. 2006) (explaining that the Commission amended 

§ 2K2.1 because it had “received information regarding 

inconsistent application as to whether the enhanced base 

offense levels apply . . . in light of the ban’s expiration”). 

Accordingly, the Sentencing Commission deleted the crossreference to the Act and incorporated the language in effect 

today: a base offense level enhancement applies if a 

§ 922(g)(1) offender possessed a “semiautomatic firearm 

that is capable of accepting a large capacity magazine.” See 

U.S.S.G. § 2K2.1, Amend. 691. Section 2K2.1, however, 

does not define the term “large capacity magazine.” Rather, 

the Sentencing Commission issued Application Note 2 as 

commentary to § 2K2.1. Application Note 2 provides:

[A] “semiautomatic firearm that is capable of 

accepting a large capacity magazine” means 

a semiautomatic firearm that has the ability to 

fire many rounds without reloading because 

at the time of the offense (A) the firearm had 

attached to it a magazine or similar device 

that could accept more than 15 rounds of 

ammunition; or (B) a magazine or similar 
18 USA V. TRUMBULL

device that could accept more than 15 rounds 

of ammunition was in close proximity to the 

firearm.

U.S.S.G. § 2K2.1, App. Note 2. 

B.

On March 8, 2022, Trumbull was arrested while in 

possession of a Glock 17. The firearm was loaded with a 

magazine containing 17 rounds of ammunition. Trumbull 

was also carrying one magazine that contained 17 rounds of 

ammunition and another that contained 18 rounds of 

ammunition. Officers also recovered a magazine containing 

31 rounds of ammunition in the trunk of Trumbull’s car. 

Trumbull, who had multiple prior felony convictions, was 

indicted under 18 U.S.C. § 922(g)(1), which makes it a crime 

for any person to possess a firearm if he had previously been 

convicted of at least one felony. Trumbull pleaded guilty.

At sentencing, the district court afforded Kisor deference 

to the commentary in Application Note 2 and enhanced 

Trumbull’s base offense level from 14 to 20 pursuant to 

§ 2K2.1. Specifically, the district court determined that 

Trumbull possessed a “semiautomatic firearm that is capable 

of accepting a large capacity magazine” under Application 

Note 2, because the firearm he possessed at the time of his 

offense “could accept more than 15 rounds of ammunition.” 

U.S.S.G. § 2K2.1, App. Note 2. The district court imposed a 

sentence of twenty-four months’ imprisonment, followed by 

a three-year term of supervised release. 

On appeal, Trumbull argues that the district court erred 

when it afforded Kisor deference to the commentary in 

Application Note 2 to § 2K2.1.
USA V. TRUMBULL 19

II.

Because courts have primary interpretive authority over 

questions of law, we review the district court’s interpretation 

of the Sentencing Guidelines de novo. See United States v. 

Rivera-Constantino, 798 F.3d 900, 902 (9th Cir. 2015). As 

with any statute or regulation that comes before us, “[w]e 

interpret the Sentencing Guidelines using the ordinary tools 

of statutory interpretation.” United States v. Martinez, 870 

F.3d 1163, 1166 (9th Cir. 2017).

When the Sentencing Commission issues commentary 

that purports to interpret the Sentencing Guidelines, we 

apply the “demanding deference standard articulated in 

Kisor” to evaluate whether to give weight to that 

commentary. United States v. Castillo, 69 F.4th 648, 655 

(9th Cir. 2023). Under Kisor, “the possibility of deference 

can arise only if a regulation is genuinely ambiguous.” 588 

U.S. at 573. Accordingly, if a Sentencing Guideline is 

unambiguous, Kisor “makes it impermissible to defer” to the 

commentary. Castillo, 69 F.4th at 663; see Kisor, 588 U.S. 

at 574–75 (“If uncertainty does not exist, there is no 

plausible reason for deference.”). The baseline of judicial 

review stays in place, and it remains our duty to interpret the 

Sentencing Guidelines, as in any other statutory 

interpretation case. See Kisor, 588 U.S. at 580 (cabining the 

scope of agency deference to genuinely ambiguous 

regulations to “maintain[] a strong judicial role in 

interpreting rules”).

Accordingly, the threshold question under Kisor is 

always whether a rule is “genuinely ambiguous.” Id. at 573. 

No ambiguity, no deference. And a court may not merely 

“wave the ambiguity flag just because it found the regulation 

impenetrable on first read.” Id. at 575. Rather, “before 
20 USA V. TRUMBULL

concluding that a rule is genuinely ambiguous, a court must 

exhaust all the ‘traditional tools’ of construction,” just as “it 

would if it had no agency to fall back on.” Id. (quoting 

Chevron, 467 U.S. at 843 n.9). In other words, Kisor requires 

us to conduct a searching inquiry into the meaning of a rule 

before assigning our interpretive authority—the core of the 

judicial power—to an agency. See id. at 580–81. 

A.

The majority concludes that the term “large capacity 

magazine” is ambiguous because the term “large” is relative, 

vague, and imprecise. Maj. Op. at 8–10. I do not dispute that 

characterization. But Kisor does not allow us to skirt our 

judicial role any time a regulation is vague, relative, or 

difficult to apply. See Kisor, 588 U.S. at 575 (“[H]ard 

interpretive conundrums, even relating to complex rules, can 

often be solved.”). Rather, it is our duty as judges to resolve 

these uncertainties ourselves.

1.

The majority’s assertion that § 2K2.1 is ambiguous 

because the term “large capacity magazine” is “vague or 

imprecise” overlooks the fundamental distinction between 

ambiguity and vagueness. Maj. Op. at 10; see Brian H. Bix, 

A Dictionary of Legal Theory 217 (2004) (“Vagueness 

should not be confused with ambiguity.”). A term is 

ambiguous “when the question is which of two or more 

meanings applies,” such as whether “table” refers to 

furniture or a mathematical chart. Scalia & Garner, Reading 

Law 31–32; see Robinson v. Shell Oil Co., 519 U.S. 337, 

341, 343 (1997) (explaining that the “ambiguity of statutory 

language is determined by reference to the language 
USA V. TRUMBULL 21

itself”) 1 . In contrast, a term is vague—not ambiguous—

when its “unquestionable meaning has uncertain application 

to various factual situations.” Scalia & Garner, Reading Law 

32; see Rafferty v. Denny’s, Inc., 13 F.4th 1166, 1199 (11th 

Cir. 2021) (Luck, J., concurring in the judgment) (noting the 

“difference between more-than-one-meaning (ambiguity) 

and uncertain application (vagueness)”). If a court can 

deduce the meaning of the words after “performing [a] 

thoroughgoing review,” the term is not ambiguous; it is 

vague. See Kisor, 588 U.S. at 581. And Kisor deference 

applies only to ambiguous rules, not to vague rules.

The Supreme Court recognized as much in Kisor. There, 

the Court reasoned that a term is ambiguous only if it is 

“genuinely susceptible to multiple reasonable meanings.” Id.

And it cited Seminole Rock to clarify that a court may defer 

to an agency “only ‘if the meaning of the words used is in 

doubt.’” Id. at 574 (emphases added) (quoting Seminole 

Rock, 325 U.S. at 414). In other words, Kisor deference 

applies only when the meaning of the words used in the rule 

is uncertain; not when their application is uncertain. See id. 

at 573 (“[W]hen we use that term, we mean it—genuinely 

ambiguous, even after a court has resorted to all the standard 

tools of interpretation.”). When a rule’s application is 

uncertain, courts retain the responsibility to interpret and 

apply it, as in every other statutory interpretation case.

Here, the words “large capacity magazine,” when used 

in reference to firearms, are not “genuinely susceptible to 

multiple reasonable meanings.” See id. at 581. We all agree 

1 In Robinson, for example, the Supreme Court reasoned that the 

statutory term “employees” could have two plausible meanings: either 

(1) current employees only, or (2) both former and current employees. 

Robinson, 519 U.S. at 341–45.
22 USA V. TRUMBULL

that the meaning of the term is a firearm magazine that is 

“[g]reat in size, amount, or degree; big; wide; full.” Large, 

Oxford English Dictionary. There is therefore no dispute 

regarding “the meaning of the words used.” See Seminole 

Rock, 325 U.S. at 414. The question, rather, is whether the 

unambiguous language in § 2K2.1 applies to the firearm that 

Trumbull possessed at the time of his arrest. That makes the 

term “large capacity magazine” vague or imprecise, but not 

ambiguous. And Kisor requires judges—not agencies—to 

interpret and apply such vague but unambiguous rules. See

Kisor, 588 U.S. at 580–81. 

2.

In equating vagueness to ambiguity, the majority relies 

on Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009), 

where the Court applied the now-defunct Chevron doctrine. 

Maj. Op. at 8–9. There, the Court held that the Clean Water 

Act’s mandate that the Environmental Protection Agency set 

standards that reflected “the best technology available for 

minimizing adverse environmental impact” did not 

“unambiguously preclude” the use of cost-benefit analysis. 

Id. at 218–20. The majority reasons that the Court found the 

term “minimize” to be ambiguous because it “admits of 

degree.” Id. at 219. For two reasons, the majority is 

mistaken. 

First, the Court in Entergy never determined that the term 

minimize was ambiguous. To the contrary, the Court—

applying traditional tools of interpretation—held that the 

word “minimize” in the Clean Water Act unambiguously 

precluded the respondents’ assertion that the term “best 

technology” included only those technologies that achieved 

“the greatest possible reduction in environmental harm.” Id. 

at 219. The Court considered the use of the term minimize 
USA V. TRUMBULL 23

“elsewhere in the Clean Water Act,” and concluded that, 

“[i]f respondents’ definition of the term ‘minimize’ is 

correct,” other portions of the Clean Water Act would be 

“superfluous.” Id. Of course, the Surplusage Canon is one of 

the “‘traditional tools’ of construction” that we must apply 

before finding a term genuinely ambiguous. See Kisor, 588 

U.S. at 575 (quoting Chevron, 467 U.S. at 843 n.9); see also 

Scalia & Garner, Reading Law 174 (explaining that, under 

the Surplusage Canon, a word should not be given an 

interpretation that causes another provision “to have no 

consequence”). Thus, and with respect, the premise 

underlying the majority’s understanding of ambiguity rests 

on a misreading of Entergy.

Second, in the wake of Loper Bright, the Chevron 

analysis in Entergy is no longer valid. See Loper Bright, 144 

S. Ct. at 2273 (“Chevron is overruled.”). To be sure, the 

Court in Loper Bright did not “call into question prior cases 

that relied on the Chevron framework.” Id. But the Court was 

clear: this limitation applied only to prior holdings that 

“specific agency actions are lawful,” pursuant to the doctrine 

of “statutory stare decisis.” Id. (first emphasis added). The 

Court acknowledged its “change in interpretive 

methodology” meant that these precedents were “wrongly 

decided,” but explained that mere error is “not enough to 

justify overruling a statutory precedent.” Id. (quoting 

Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 

266 (2014)). For future cases, however, the Court stated: 

“Courts must exercise their independent judgment in 

deciding whether an agency has acted within its statutory 

authority, as the APA requires.” Id.; see also id. at 2271 

(“[T]he basic nature and meaning of a statute does not 

change when an agency happens to be involved. . . . The 

statute still has a best meaning, necessarily discernible by a 
24 USA V. TRUMBULL

court deploying its full interpretive toolkit.”). The majority’s 

understanding of ambiguity, then, depends exclusively on a 

case with no precedential value.

In sum, the majority is incorrect that a term is ambiguous 

under Kisor merely because it is vague or “impenetrable on 

first read.” See Kisor, 588 U.S. at 575. Except for those cases 

in which the words used are “genuinely susceptible to 

multiple reasonable meanings,” it remains our duty to apply 

such vague and indefinite regulations to the facts before us, 

as we do all the time. See id. at 581. And here, the term “large 

capacity magazine” in § 2K2.1 has only one plausible 

meaning. Respectfully, the majority’s choice to disregard 

our interpretive duties and assign them to the Sentencing 

Commission expands Kisor far beyond its intended scope. 

B.

The majority’s expansion of Kisor deference is 

particularly troubling considering the Supreme Court’s 

recent decision in Loper Bright. Although I acknowledge 

that Loper Bright did not expressly overrule Kisor, the 

majority is mistaken to brush Loper Bright aside and treat it 

as irrelevant to the interpretation of regulatory language. 

Maj. Op. at 7 n.2. The Court in Loper Bright made clear that 

courts cannot merely “throw up their hands,” as the majority 

does today, when a term is difficult to apply. See Loper 

Bright, 144 S. Ct. at 2266. Indeed, Loper Bright questioned 

whether ambiguity can even serve as a valid benchmark 

when it comes to a court’s interpretive role. As the Court put 

it:

Ambiguity is a term that may have different 

meanings for different judges. One judge 

might see ambiguity everywhere; another 
USA V. TRUMBULL 25

might never encounter it. A rule of law that is 

so wholly in the eye of the beholder invites 

different results in like cases and is therefore 

arbitrary in practice. Such an impressionistic 

and malleable concept cannot stand as an 

every-day test for allocating interpretive 

authority between courts and agencies.

Id. at 2270–71 (citations and internal quotations omitted).

The Court in Loper Bright, moreover, reasoned that 

“statutes, no matter how impenetrable, do—in fact, must—

have a single, best meaning.” Id. at 2266. It also explained 

that it “makes no sense to speak of a ‘permissible’ 

interpretation that is not the one the court, after applying all 

relevant interpretive tools, concludes is best,” because “if it 

is not the best, it is not permissible.” Id. Of course, those 

“interpretive tools” are the same tools the Court told us to 

exhaust in in Kisor before finding a regulation ambiguous. 

Compare id. (noting the “very point of the traditional tools 

of statutory construction—the tools courts use every day—

is to resolve statutory ambiguities”), with Kisor, 588 U.S. at 

575 (explaining a court “must exhaust all the traditional tools 

of construction” “before concluding that a rule is genuinely 

ambiguous” (internal quotations omitted)). Loper Bright, 

then, reiterated the searching inquiry that we must undertake 

before deferring to an agency under Kisor.

After the Court’s landmark decision in Loper Bright, we 

should hesitate to expand Kisor deference beyond those 

cases in which “the meaning of the words used is in doubt.” 

See Seminole Rock, 325 U.S. at 414; Kisor, 588 U.S. at 575, 

581. In all other cases, such as this one, the regulation “just 

means what it means—and the court must give it effect, as 

the court would any law.” Kisor, 588 U.S. at 575. 
26 USA V. TRUMBULL

III.

Because § 2K2.1 is unambiguous, I would independently 

interpret the term “semiautomatic firearm that is capable of 

accepting a large capacity magazine,” and determine 

whether the Glock 17 that Trumbull possessed at the time of 

his offense qualifies. See U.S.S.G.§ 2K2.1(a)(4)(B). This 

analysis requires the use of the “ordinary tools of statutory 

interpretation,” Martinez, 870 F.3d at 1166, which “begin[s] 

and end[s] with the text and structure of the Guidelines,” 

United States v. Joey, 845 F.3d 1291, 1297 n.8 (9th Cir. 

2017) (internal quotations omitted). We may also consider 

“the context of the[] words” in light of the backdrop at the 

time the rule was enacted. See United States v. Hansen, 599 

U.S. 762, 775 (2023); Scalia & Garner, Reading Law 167 

(“Context is a primary determinant of meaning.”). Here, the 

analysis of the text and structure, along with the context in 

which § 2K2.1 was promulgated, compels one conclusion: 

Trumbull’s Glock 17, which had the capacity to accept 17 

rounds, unambiguously qualifies as a “semiautomatic 

firearm that is capable of accepting a large capacity 

magazine.” See U.S.S.G. § 2K2.1(a)(4)(B). 

First, the current version of § 2K2.1 “was expressly 

modeled on its . . . predecessor” and, therefore, brought “the 

old soil with it.” See Hall v. Hall, 584 U.S. 59, 72–73 (2018) 

(quoting Felix Frankfurter, Some Reflections on the Reading 

of Statutes, 47 Colum. L. Rev. 527, 537 (1947)). As I have 

explained, § 2K2.1 previously cross-referenced the Violent 

Crime Control Law Enforcement Act of 1994. That Act had 

prohibited the possession of a “large capacity ammunition 

feeding device,” defined as a “magazine” that has a 

“capacity of . . . more than 10 rounds of ammunition.” 18 

U.S.C. § 921(a)(31). Prior to the 2006 amendments, 

moreover, U.S.S.G. § 5K2.17 provided for a sentencing 
USA V. TRUMBULL 27

enhancement when the offender possessed a “high-capacity 

semiautomatic firearm,” which was similarly defined as a 

firearm that has a “magazine capacity of more than ten 

cartridges.” 

After the Act expired in 2004, the Commission amended 

§ 2K2.1 and § 5K2.17 because Congress had allowed the 

cross-referenced Act to expire. In its “Reason for 

Amendment,” the Commission explained that it had 

“received information regarding inconsistent application as 

to whether the enhanced base offense levels apply . . . in 

light of the ban’s expiration.” U.S.S.G. § 2K2.1, Amend. 

691. The Commission therefore opted to “replace[] the 

reference [to the Act] with the term, ‘a semiautomatic 

firearm that is capable of accepting a large capacity 

magazine.’” Id.

When this context is considered, the 2006 amendment—

which merely replaced the cross-references to the Act and 

did not include any new definitions—did not make any 

substantive changes. See Gordillo, 920 F.3d at 1298 

(explaining that the “2006 amendments [to § 2K2.1] were 

intended to clarify that the enhanced base offense levels 

continued to apply”); cf. Hansen, 599 U.S. at 775–78 

(considering context and concluding that, when Congress 

removed words in a statute but left intact similar words, the 

change was “best understood as a continuation of the past, 

not a sharp break from it”). Instead, the term “large capacity 

magazine” is “obviously transplanted from another legal 

source”—the Act and the prior version of § 5K2.17—and, 

therefore, “brings the old soil with it.” See Taggart v. 

Lorenzen, 587 U.S. 554, 560 (2019) (quoting Hall, 584 U.S. 

at 73); Scalia & Garner, Reading Law 322 (explaining that if 

a term has been given a “uniform interpretation by . . . the 

responsible agency, a later version of that act perpetuating 
28 USA V. TRUMBULL

the wording is presumed to carry forward that 

interpretation”); id. at 323 (“[W]hen a statute uses the very 

same terminology as an earlier statute—especially in the 

very same field . . .—it is reasonable to believe that the 

terminology bears a consistent meaning”); Erlenbaugh v. 

United States, 409 U.S. 239, 244 (1972) (“[W]henever 

Congress passes a new statute, it acts aware of all previous 

statutes on the same subject.”). Under this “longstanding 

interpretive principle,” the pre-existing definition was 

merely incorporated into § 2K2.1. See Taggart, 587 U.S. at 

560. And with that understanding, Trumbull’s Glock 17 

qualifies as a “semiautomatic firearm that is capable of 

accepting a large capacity magazine,” as that term was 

understood when § 2K2.1 was amended, because it could 

accept more than 10 rounds of ammunition.2 See 18 U.S.C. 

§ 922(a)(31) (repealed); U.S.S.G. § 5K2.17 (amended).

Second, there is overwhelming evidence that the 

common understanding of the term “large capacity 

magazine” encompasses magazines that can accept 17 

rounds of ammunition. As the majority recognizes, at least 

12 states restrict the possession of large capacity magazines. 

Maj. Op. at 10. Eight of those states define the term as a 

magazine that has the capacity to accept more than 10 rounds 

of ammunition. See Cal. Penal Code § 16740; Conn. Gen. 

Stat. Ann. § 53-202w(a)(1); Haw. Rev. Stat. Ann. § 134-8; 

Mass. Gen. Laws Ann. ch. 140, § 121; N.J. Stat. Ann. 

2 Although Application Note 2’s definition of “large capacity magazine” 

is narrower than the prior definitions—as it applies only to firearms that 

can accept more than 15 rounds of ammunition—we have held that 

“Guidelines commentary need not be followed when it establishes a 

‘narrowing’ construction not ‘found in the Guideline text.’” United 

States v. Kirilyuk, 29 F.4th 1128, 1137 (9th Cir. 2022) (quoting United 

States v. Lambert, 498 F.3d 963, 971 (9th Cir. 2007)).
USA V. TRUMBULL 29

§ 2C:39-1; N.Y. Penal Law § 265.00; 11 R.I. Gen. Laws 

§ 11-47.1-3; Wash. Rev. Code Ann. § 9.41.010(25). And 3 

define the term to include those handgun magazines that can 

accept more than 15 rounds of ammunition. See Colo. Rev. 

Stat. § 18-12-301; 720 Ill. Comp. Stat. Ann. 5/24-1.10; Vt. 

Stat. Ann. tit. 13, § 4021. Under any of these definitions, 

Trumbull’s 17-capacity magazine falls within the scope of 

the term “large capacity magazine” as that term has been 

long understood.

Considering the regulatory context, a semiautomatic 

firearm that can accept 17 rounds of ammunition, such as the 

Glock 17 that Trumbull possessed at the time of his offense, 

unambiguously constitutes a “semiautomatic firearm that is 

capable of accepting a large capacity magazine” for purposes 

of the Sentencing Guidelines. See U.S.S.G. 

§ 2K2.1(a)(4)(B). Accordingly, the district court did not err 

when it enhanced Trumbull’s base offense level pursuant to 

§ 2K2.1(a)(4)(B).

* * *

In sum, the majority is mistaken to defer to the 

Sentencing Commission’s commentary in Application Note 

2 because the language of § 2K2.1 is not “genuinely 

ambiguous.” See Kisor, 588 U.S. at 573–75. Nonetheless, 

the Glock 17 that Trumbull possessed at the time of his 

offense falls unambiguously within the meaning of the term 

“semiautomatic firearm that is capable of accepting a large 

capacity magazine” as that term was understood when 

§ 2K2.1 was promulgated. U.S.S.G. § 2K2.1(a)(4)(B). The 

district court, therefore, properly enhanced Trumbull’s base 

offense level for sentencing purposes pursuant to 

§ 2K2.1(a)(4)(B).

For the foregoing reasons, I concur only in the judgment.