United States v. Adair

• Decision Date: 30 June 2022
• Docket Number: 20-1463
• Parties: UNITED STATES of America v. Antoinette ADAIR, Appellant
• Court: U.S. Court of Appeals — Third Circuit

38 F.4th 341

UNITED STATES of America

v.Antoinette ADAIR, Appellant

No. 20-1463

United States Court of Appeals, Third Circuit.

Argued: April 28, 2021

Filed: June 30, 2022

Donovan J. Cocas [ARGUED], Laura S. Irwin, United States Attorney's Office, Western District of Pennsylvania, 700 Grant Street, Suite 4000, Pittsburgh, PA 15219, Counsel for United States of America

Julie A. McGrain [ARGUED], Office of Federal Public Defender, District of New Jersey, 800-840 Cooper Street, Suite 350, Camden, NJ 08102, Counsel for Antoinette Adair

Before: SMITH, Chief Judge,^* PHIPPS, and ROTH, Circuit Judges.

OPINION OF THE COURT

PHIPPS, Circuit Judge.

For several years, Antoinette Adair pushed pills in Pittsburgh. She was arrested and later pleaded guilty to a ten-count indictment for her role in illegally distributing prescription painkillers. In calculating Adair's sentence, the District Court increased her offense level by four points for being an organizer or leader of extensive criminal activity. See U.S.S.G. § 3B1.1(a). And although Adair timely pleaded guilty, the government did not move for a one-point reduction for acceptance of responsibility. See id. § 3E1.1(b). Accounting for those and other sentencing factors, the District Court calculated the range for Adair's imprisonment under the Sentencing Guidelines as between 188 and 235 months. The District Court then granted a downward variance so that Adair received a 168-month prison term for the longest of her concurrent sentences.

In this appeal, Adair disputes the initial Guidelines range for her imprisonment. She argues that the District Court erred by applying a four-point increase for the organizer-leader enhancement. She also contends that the District Court should have compelled the government to move for a one-point reduction for acceptance of responsibility. For the reasons below, we will affirm the District Court's judgment of sentence.

BACKGROUND

Adair gained access to prescription opiate pills as a treatment for back pain. A physician prescribed her 300 opioid pills per month (240 oxycodone and 60 oxymorphone ), and she became addicted.

Despite her addiction, Adair recognized that a broader market existed for prescription pills. She convinced her mother and her sister to obtain opiate painkillers from the same physician. After that doctor pleaded guilty to illegally distributing controlled substances in 2012, Adair found other physicians who would overprescribe opioid pills.

For the next several years, Adair participated in and coordinated transactions for prescription pills. At one point, she had twelve people in her network of suppliers who would obtain prescriptions and acquire opioid pills. Adair coordinated the distribution and sale of those pills to addicts, including herself, as well as to a drug dealer who oversaw a much larger pill-distribution network. She decided when and where sales would occur, and she had oversight over her suppliers, referring to some of them as her sons. She also made drug deliveries herself, occasionally with one of her buyers serving as a chauffeur and bodyguard.

Adair was also adept at responding to the vicissitudes of the prescription-pill black market. With respect to the drug dealer who oversaw a larger pill network, she would, when necessary, front him pills or provide extra pills for free when he could not afford to purchase her full supply. When he needed a new gun, she offered to find him one. Adair also demonstrated responsiveness and flexibility with her addict clients. She would arrange for them to buy from other drug dealers when she had no pills for them. Similarly, she advised one of her suppliers on whether to report a gun offered as collateral for drugs as stolen. But she accommodated only so much: on one occasion, Adair threatened and pointed a gun at a confidential informant for shorting her the amount owed for pills.

After her arrest in December 2016, Adair's pill-distribution operation came to an end. In January 2018, she pleaded guilty to a ten-count indictment for violating multiple federal statutes: 18 U.S.C. § 1347 (health care fraud); 21 U.S.C. § 841(a)(1) (possession with intent to distribute a controlled substance); id. § 841(b)(1)(C) (possession with intent to distribute oxymorphone and oxycodone); id. § 846 (conspiracy to distribute oxycodone and oxymorphone). See 18 U.S.C. § 3231 (conferring jurisdiction to the district courts in cases involving "offenses against the laws of the United States"). She did so without entering into a plea agreement with the government, and they disagreed over several aspects of her sentence calculation.

After briefing and a two-day hearing, the District Court fixed the Guidelines range for Adair between 188 and 235 months' imprisonment. That calculation included a four-point increase in the offense level for the organizer-leader enhancement. See U.S.S.G. § 3B1.1(a). Also, although the District Court subtracted two points from Adair's offense level for her acceptance of responsibility, see id. § 3E1.1(a), the government did not move for a third-point acceptance-of-responsibility reduction for her timely notice of her guilty plea, see id. § 3E1.1(b).

Ultimately, the District Court varied downward from that Guidelines range. Due to her personal opioid addiction and post-plea rehabilitation, the District Court sentenced her to 168 months' imprisonment. Adair timely appealed that sentence, bringing this matter within this Court's appellate jurisdiction. See 28 U.S.C. § 1291 ; see also 18 U.S.C. § 3742(a) ; United States v. Bell , 947 F.3d 49, 53 (3d Cir. 2020).

DISCUSSION

Adair disputes the District Court's calculation of her Guidelines range on two grounds. She argues first that the District Court miscalculated that range by increasing her offense level by four points for being an organizer or leader of extensive criminal activity under Guideline § 3B1.1(a). Next, she contends that the District Court erred by not compelling the government to move for a third-point reduction for acceptance of responsibility under Guideline § 3E1.1(b) after she provided timely notice of her intention to plead guilty. For the reasons below, neither challenge succeeds.

I. The Organizer-Leader Enhancement in Guideline § 3B1.1(a)

The application of the organizer-leader enhancement hinges upon the meaning of the terms ‘organizer’ and ‘leader’ as used in Guideline § 3B1.1. Because the United States Sentencing Commission has interpreted these terms in its commentary, the weight afforded to that commentary may affect the meaning of those terms. Those legal issues receive de novo review. See United States v. Nasir , 17 F.4th 459, 468 (3d Cir. 2021) (en banc). Review of the District Court's factual findings in support of the organizer-leader enhancement proceeds under the clear error standard because Adair preserved this challenge. See United States v. Huynh , 884 F.3d 160, 165 (3d Cir. 2018).

A. The Stinson Paradigm and Auer Deference

The Supreme Court has established a general paradigm for the relationship between the Sentencing Guidelines and the Commission's interpretive commentary. Under that paradigm, formulated in Stinson v. United States , 508 U.S. 36, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993), Guidelines drafted by the Commission are treated as legislative rules,¹ and the Commission's comments interpreting the Guidelines are viewed as interpretive rules.² The paradigm applies only to the Commission's interpretive commentary, not its commentary related to either background information or circumstances that may warrant a departure from a guideline. Compare id. (applying the paradigm only to interpretive commentary), with U.S.S.G. § 1B1.7 (describing three different types of commentary to the Guidelines).

The Stinson paradigm provides only half of the framework for analyzing the Commission's interpretive commentary; the other half requires determining the weight that such commentary should receive. When the Supreme Court decided Stinson , an agency's interpretation of its own legislative rule received Seminole Rock deference, later known as Auer deference. See Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945) ; Auer v. Robbins , 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). Such deference gave controlling weight to an agency's interpretation of its own regulation unless the interpretation was "plainly erroneous or inconsistent with the regulation." Stinson , 508 U.S. at 45, 113 S.Ct. 1913 (quoting Seminole Rock , 325 U.S. at 414, 65 S.Ct. 1215 ); see also Perez v. Mortg. Bankers Ass'n , 575 U.S. 92, 110, 135 S.Ct. 1199, 191 L.Ed.2d 186 (2015) (Scalia, J., concurring in judgment) ("Interpretive rules that command deference do have the force of law."). Thus, the application of Auer deference within the Stinson paradigm required courts to defer to the Commission's commentary for a Guideline unless that interpretation was plainly erroneous or inconsistent with the Guideline. See Stinson , 508 U.S. at 47, 113 S.Ct. 1913 ; see also U.S.S.G. § 1B1.7, Commentary.

Although the Stinson paradigm has not changed, the Supreme Court reprised Auer deference in Kisor v. Wilkie , ––– U.S. ––––, 139 S. Ct. 2400, 204 L.Ed.2d 841 (2019). That decision made clear that for Auer deference to apply, "a court must exhaust all the ‘traditional tools’ of construction," id. at 2415 (quoting Chevron U.S.A. Inc. v. Nat. Res. Def. Council Inc. , 467 U.S. 837, 843 n.9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ), and determine that the regulation is "genuinely ambiguous," id. at 2414. Under this approach, a court must consider the "text, structure, history, and purpose of a regulation, in all the ways it would if it had no agency to fall back on." Id. at 2415.

Kisor did more than render Auer deference "a doctrine of desperation." INS v. Cardoza-Fonseca , 480 U.S. 421, 454, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (Scalia, J., concurring in the judgment) (opining that Chevron deference should...