United States v. Coates
| Docket Number | 22-3122 |
| Decision Date | 18 September 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LARRY COATES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Appeal from the United States District Court for the District of Kansas (D.C. No. 6:21-CR-10037-EFM-1)
Paige A. Nichols, Assistant Federal Public Defender (Melody Bannon Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Topeka, Kansas, for Defendant - Appellant.
Sonja M. Ralston, Attorney, Appellate Section (Duston Slinkard United State Attorney; James Brown, Assistant United States Attorney, Appellate Chief, D. Kansas; Kenneth A. Polite, Jr. Assistant Attorney General; Lisa H. Miller, Deputy Assistant Attorney General, with her on the brief), Criminal Division United States Department of Justice, Washington, D.C., for Plaintiff - Appellee.
Before MORITZ, BALDOCK, and MURPHY, Circuit Judges.
In 2019, Larry Coates was caught in possession of child pornography. At that time, he was serving supervised release for Kansas-state child exploitation violations. Coates pleaded guilty to a single count of violating 18 U.S.C. § 2252A(a)(5)(B), (b)(2). In anticipation of sentencing, the probation office prepared a presentence investigative report ("PSR"). The PSR recommended a pattern of activity enhancement pursuant to U.S.S.G. § 2G2.2(b)(5). Although § 2G2.2(b)(5) does not define what qualifies as a "pattern," corresponding commentary states a pattern may arise from offenses unrelated to the underlying crime. Coates objected to the enhancement, reasoning it could only apply if the commentary's definition of pattern was used. In doing so, Coates advocated the district court rely on the Supreme Court's recent decision in Kisor v. Wilkie, 139 S.Ct. 2400, 2414 (2019), which determined courts can only defer to commentary accompanying executive agency regulations when the associated regulation is "genuinely ambiguous." Absent express guidance from this court, the district court declined to apply Kisor and it did not otherwise believe the commentary inconsistent with the guideline. This court recently confirmed this approach in United States v. Maloid, 71 F.4th 795 (10th Cir. 2023). There, we held Kisor does not apply to the Sentencing Commission, and therefore, its commentary should be relied upon unless "plainly erroneous or inconsistent" with the guidelines. Id. at 805-06 (citing Stinson v. United States, 508 U.S. 36, 47 (1993)). We conclude § 2G2.2's commentary presents no such inconsistency, and thus, exercising our jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, affirm the district court's sentencing decision.
Between February 1, 2001, and May 21, 2002, Coates sexually abused his niece, a minor, on multiple occasions. Coates forced her to perform sexual acts, and on at least two occasions he took photos of this exploitation. Following investigation, Coates pleaded guilty in state court to three counts of aggravated indecent liberties and three counts of sexual exploitation of a child. He received a sentence of 184 months' imprisonment, followed by thirty-six months' post-release supervision.
In February 2019, while still on parole, Coates was the subject of a second investigation. This time, the National Center for Missing and Exploited Children tipped the Wichita Police Department that someone at Coates's address had repeatedly uploaded child pornography online and attempted several reverse-image searches to find similar photographs. Upon obtaining a search warrant for his electronic devices, authorities discovered hundreds of images and videos of child pornography. On May 19, 2021, a federal grand jury indicted Coates for one count of child pornography possession in violation of 18 U.S.C. § 2252(A)(a)(5)(B) and (b)(2), to which he pleaded guilty.
The probation office prepared a PSR containing several offense level enhancements, including one for pattern of activity pursuant to U.S.S.G. § 2G2.2(b)(5). The enhancement was applied based on Coates's previous child exploitation crimes from 2001 and 2002. The guideline, which falls under the heading, "specific offense characteristics," provides: "[i]f the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by 5 levels." U.S.S.G. § 2G2.2(b)(5). The commentary to the guideline defines "pattern of activity" as "any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation (A) occurred during the course of the offense; (B) involved the same minor; or (C) resulted in a conviction for such conduct." Id. § 2G2.2 cmt. n.1 (emphasis added).
Coates objected to the application of the pattern enhancement. He reasoned the text of U.S.S.G. §§ 2G2.2(b)(5) and 1B1.3(a)(1)(A) unambiguously show a pattern of activity can only be based on conduct related to the underlying offense. He argued the commentary to § 2G2.2, therefore, plainly conflicts with the sentencing guidelines by allowing pattern enhancements based on prior conduct. In turn, Coates urged this court to apply the Supreme Court's decision in Kisor, which only permits reliance on executive agency commentary where "genuine ambiguity" in the regulation exists. 139 S.Ct. at 2414. The district court overruled Coates's objection, explaining that without further direction as to whether Kisor applies to the sentencing guidelines, it would continue to generally defer to Commission commentary. Similarly, the district court could not identify a fundamental inconsistency between the guidelines and the § 2G2.2 commentary that would upset this deference. Applying the enhancement, Coates was sentenced to 180 months' imprisonment, followed by ten years of supervised release.
"When evaluating sentence enhancements under the Sentencing Guidelines, this court reviews the district court's factual findings for clear error and questions of law de novo." United States v. McDonald, 43 F.4th 1090, 1095 (10th Cir. 2022).
In Stinson, the Supreme Court analyzed to what degree sentencing guidelines commentary can be relied upon for sentencing decisions. 508 U.S. at 42. The Court concluded, "provided an agency's interpretation of its own regulations does not violate the Constitution or a federal statute, it must be given 'controlling weight unless it is plainly erroneous or inconsistent with the regulation.'" Id. at 45 (quoting Bowles v. Seminole Rock &Sand Co., 325 U.S. 410, 414 (1945)). This interpretation of commentary's effect was derived from well-established notions of agency deference that prioritize the expertise of rule-making bodies. Id.; Kisor, 139 S.Ct. at 2412. Since Stinson, this court has regularly applied broad deference to the Commission's commentary where no inconsistency is otherwise present. See, e.g., United States v. Babcock, 40 F.4th 1172, 1184 (10th Cir. 2022); United States v. Martinez, 602 F.3d 1166, 1173-74 (10th Cir. 2010); United States v. Morris, 562 F.3d 1131, 1135 (10th Cir. 2009).
In Kisor, the Supreme Court adapted these principles of deference as applied to executive agencies. 139 S.Ct. at 2414-15. There, the Court determined, Id. at 2415 (citation omitted). The Court added, "before concluding that a rule is genuinely ambiguous, a court must exhaust all the 'traditional tools' of construction." Id. (quoting Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, n.9 (1984)). The Court's renewed interpretation of deference, however, did not discuss either the sentencing guidelines or Stinson. Maloid, 71 F.4th at 804. Without clear direction as to whether Kisor's stricter concept of deference applies to the Sentencing Commission, circuit courts are split as to how to treat sentencing commentary. See, e.g., United States v. Vargas, 74 F.4th 673, 679 (5th Cir. 2023); United States v. Castillo, 69 F.4th 648, 657-58 (9th Cir. 2023); United States v. Nasir, 17 F.4th 459, 470-71 (3d Cir. 2021) (en banc); United States v. Dupree, 57 F.4th 1269, 1275 (11th Cir. 2023) (en banc); United States v. Riccardi, 989 F.3d 476, 484-85 (6th Cir. 2021); United States v. Lewis, 963 F.3d 16, 24-25 (1st Cir. 2020).
Quite recently, our court weighed-in on the issue. In Maloid, we concluded, "if the Supreme Court meant Kisor to reach sentencing, it would have said so." 71 F.4th at 809. We determined Kisor's concept of deference applied especially to executive agencies and Stinson continued to govern sentencing commentary. Id. at 806-08. As applied, Maloid decided the district court did not err in deferring to § 2K2.1 and § 4B1.2 commentary because it did not conflict with the underlying rules. Id. at 813. Contrary to both parties' arguments in this case, therefore, Kisor does not apply to sentencing guideline commentary and the Stinson standard controls. Id. at 805. This conclusion forecloses much of Coates's argument, including his contention that the guidelines are not ambiguous, and thus the more expansive definition of pattern included in the § 2G2.2 commentary cannot be relied upon under Kisor.[1]
Coates's remaining arguments posit the § 2G2.2 commentary is inconsistent with the guidelines, and therefore inapplicable under Stinson. He identifies two potential conflicts: first, § 2G2.2(b)(5) is classified as a "specific offense characteristic," and cannot be interpreted to include conduct not specific to the underlying offense;...
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