        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206
     ELECTRONIC CITATION: 2000 FED App. 0110P (6th Cir.)
                 File Name: 00a0110p.06


UNITED STATES COURT OF APPEALS
               FOR THE SIXTH CIRCUIT
                 _________________


                                  ;
                                   
 UNITED STATES OF AMERICA,
                                   
           Plaintiff-Appellee,
                                   
                                   
                                      Nos. 98-5552/5554
            v.
                                   
                                    >
 COURTNEY BUTLER (98-5552) 
                                   
        Defendants-Appellants. 
 and JULIUS RETIC (98-5554),

                                   
                                  1
       Appeal from the United States District Court
    for the Western District of Tennessee at Memphis.
  No. 97-20030—Julia S. Gibbons, Chief District Judge.
          Argued and Submitted: June 18, 1999
           Decided and Filed: March 29, 2000
   Before: JONES, COLE, and CLAY, Circuit Judges.
                   _________________
                        COUNSEL
ARGUED: Stephen R. Leffler, Memphis, Tennessee, for
Appellant. Tony R. Arvin, ASSISTANT UNITED STATES
ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Randall P. Salky, THE LAW OFFICE OF
RANDALL SALKY, Memphis, Tennessee, Stephen R.
Leffler, Memphis, Tennessee, for Appellants. Tony R. Arvin,

                             1
2    United States v. Butler, et al.      Nos. 98-5552/5554      Nos. 98-5552/5554         United States v. Butler, et al.   23

ASSISTANT UNITED STATES ATTORNEY, Memphis,                       beyond the initial directive, we believe the original twenty-
Tennessee, for Appellee.                                         one year old age limit is sufficiently clear to overcome an
                                                                 argument from silence.
  CLAY, J., announced the judgment of the court and
delivered an opinion, in which JONES and COLE, JJ.,                 Our hesitance to infer too much from mere “silence” is
concurred except as to Part II.B.1. JONES, J. (pp. 19-23),       driven by our concern that doing so would lead courts wholly
delivered a separate opinion, in which COLE, J. concurred,       to abandon their role of assessing whether enacted guidelines
which constitutes the opinion of the court on the issue          comport with Congressional intent. Indeed, Congress “can
addressed in Part II.B.1.                                        revoke or amend any or all the Guidelines as it sees fit either
                                                                 within the 180-day waiting period . . . or at any time.”
                   _________________                             Mistretta, 488 U.S. at 393-94. All proposed guidelines are
                                                                 thus subject to review and potential rejection by Congress,
                       OPINION                                   and all enacted guidelines have theoretically survived that
                   _________________                             potential rejection. Heeding “silence” would thus dictate that
                                                                 all enacted guidelines inherently satisfied Congressional
   CLAY, Circuit Judge. Defendant Courtney Butler appeals        intent, and would eliminate our vital role—described in
from his judgment of conviction and sentence to 235 months       LaBonte and other cases—of squaring the enacted guideline
of imprisonment for his commission of armed bank robbery         with the original statutory language. See 520 U.S. at 757.
in violation of 18 U.S.C. § 2113 and 18 U.S.C. § 2.              Indeed, an Eighth Circuit panel has already taken this
Defendant Julius Retic appeals from his judgment of              dramatic step, concluding (erroneously, we believe) that
conviction and sentence to 120 months of imprisonment for        “[g]iven Congress’s supervisory role, the Sentencing
his commission of armed bank robbery in violation of 18          Commission’s formulation of the Guidelines is not subject to
U.S.C. § 2113 and 18 U.S.C. § 2, and for using and carrying      judicial review unless the Commission oversteps
a firearm during and in relation to a crime in violation of 18   constitutional bounds.” United States v. Vincent, 167 F.3d
U.S.C. § 924(c). For the reasons below, we AFFIRM the            428, 431 (8th Cir. 1999). To the contrary, we believe
judgment of the district court as to Butler, but VACATE          appellate courts must continue to “hold[] the Commission
Retic’s sentence and REMAND his case for resentencing.           accountable as an agency of limited powers.” Daniel J. Freed,
                                                                 Federal Sentencing in the Wake of the Guidelines:
                              I.                                 Unacceptable Limits on the Discretion of Sentencers, 101
  On February 19, 1997, a federal grand jury sitting in the      Yale L.J. 1681, 1748 (1992).
Western District of Tennessee returned an indictment               We conclude that U.S.S.G. § 3B1.4 is in conflict with a
charging Courtney Butler and Julius Retic, along with three      clear Congressional directive. In addition to the reasons
other individuals, with twelve counts of criminal activity.      articulated by Judge Clay in II.B.2, we believe that Retic’s
The relevant facts surrounding their separate offenses and       sentence must be vacated and the case remanded for
their respective sentencings are as follows.                     imposition of a new sentence that is in accordance with the
                                                                 directive’s age limitation.
22       United States v. Butler, et al.        Nos. 98-5552/5554          Nos. 98-5552/5554         United States v. Butler, et al.    3

behavior,1 taking the adult-defendant’s and the accomplice-                                        A. BUTLER
minor’s relative ages into consideration is hardly a novel
concept. Cf. MODEL PENAL CODE § 213.3(1)(a) (1962); CAL.                      On May 29, 1996, Butler and Julian Shelton robbed the
PENAL CODE 261.5(d) (1999) (“Any person 21 years of age or                 Volunteer Bank in Henning, Tennessee. During the robbery,
older who engages in an act of unlawful sexual intercourse                 Butler wore a wig covered with a hat and Shelton wore safety
with a minor under 16 years of age is guilty of either a                   glasses and a hat, while Shelton was armed with a hand gun.
misdemeanor or a felony . . .”). This is precisely the bright-             Together they stole a total of $12,269 from the bank. When
line role which the age limit played in the directive at issue.            the federal grand jury handed down its twelve-count
We therefore find that the limit was a core aspect of that                 indictment, it charged Butler in Count 5 with aiding and
directive, and its wholesale elimination comprised much more               abetting armed bank robbery in violation of 18 U.S.C. § 2113
than a “slightly broader” application.                                     and 18 U.S.C. § 2 in connection with his participation in this
                                                                           robbery at Volunteer Bank. The indictment also charged
  Finally, we respectfully disagree with our distinguished                 Butler in Counts 1 through 4, Counts 6 through 8, and Counts
colleague’s utilization of a “Congressional silence” theory to             11 and 12 with numerous other bank robberies and the use of
conclude that Congress indeed approved of the Commission’s                 firearms during those offenses. On March 5, 1998, Butler
amendment. He points to the six-month review period in                     pleaded guilty to Count 5 of the indictment pursuant to a plea
which Congress can accept or reject Commission guidelines,                 agreement in which the government dismissed the remaining
and to the fact that “Congress ultimately failed to express                charges against him.
disagreement with expansion of the enhancement to” include
defendants under twenty one, to conclude that the amendment                  At sentencing on April 3, 1998, the district court
was “an appropriate reflection of [Congressional] policy.”                 determined that Butler had three convictions that qualified
Ante at __. See also United States v. Munoz-Cerna, 47 F.3d                 him for career offender status under § 4B1.1 of the
207, 212 (7th Cir. 1995) (reading Congressional intent by                  Sentencing Guidelines. Specifically, the district court took
noting that “Congress had the opportunity to accept, reject, or            note of a 1990 conviction for conspiracy to sell cocaine, a
modify the guideline provision” yet “decided to allow the                  1994 conviction for delivery of under a half-gram of cocaine,
Commission’s handiwork to take effect”). For several                       and a 1994 conviction for aggravated burglary. Additionally,
reasons, we are not persuaded by this analysis.                            the district court denied Butler’s request for a downward
                                                                           departure. The district court enhanced Butler’s criminal
  As the Supreme Court stated in another Sentencing                        history category accordingly, and sentenced Butler to 235
Guideline case, “[n]ot every silence is pregnant.” Burns v.                months of imprisonment, 3 years of supervised release, and
United States, 501 U.S. 129, 136 (1991) (citation omitted).                payment of restitution in the amount of $6,134.50, or one-half
The Court in Burns counseled that silence should not be                    the loss to the bank. Butler filed a timely notice of appeal to
“credited when it is contrary to all other textual and                     this Court on April 14, 1998.
contextual evidence of congressional intent.” Id. Although
there is admittedly little evidence of that legislative intent                                      B. RETIC
                                                                            On July 19, 1996, at the age of twenty, Retic robbed the
     1                                                                     Munford Union Bank in Atoka, Tennessee along with Curtis
      Indeed, Congress asked the Commission to take into account the       Harden, who was seventeen years of age at the time. Butler
“possible relevance of the proximity in age between the offender and the
minor(s) involved in the offense.” Pub. L. No. 103-322, § 140008, 108      was waiting nearby in a getaway vehicle. During the robbery,
Stat. 2033 (1994).                                                         which took place in the middle of the afternoon, Retic put a
4    United States v. Butler, et al.      Nos. 98-5552/5554      Nos. 98-5552/5554          United States v. Butler, et al.    21

handgun to the head of a customer service representative,        Commission to “promulgate guidelines or amend existing
instructed her not to push the alarm button, and told her that   guidelines to provide that a defendant 21 years of age or older
if she moved, he would “cap” her. Harden repeatedly asked        who has been convicted of an offense shall receive an
Retic not to shoot the representative, and Retic complied.       appropriate sentence enhancement if the defendant involved
Harden jumped the teller counter and removed money.              a minor in the commission of the offense.” Pub. L. No. 103-
During the robbery, Retic saw a bank teller motion to her        322, § 140008, 108 Stat. 2033 (1994) (emphasis added).
husband and children, who were about to enter the bank to        However, in issuing § 3B1.4, the Commission simply
pick her up, not to enter. Retic ordered the husband and         removed the age restriction. See U.S.S.G. § 3B1.4. Looking
children into the bank. As Retic and Harden were leaving the     at the face of both the directive and the guideline, we are not
bank, they encountered another customer. Retic grabbed him,      convinced that the Commission’s interpretation of the age
pointed the gun at him and ordered him into the bank.            restriction is “sufficiently reasonable.” To the contrary, the
Ultimately, Retic and Harden left the bank with $16,330.         guideline’s “interpretation” was a direct overruling of an
Later that evening, local police picked up Harden walking        explicit Congressional declaration because it eliminated the
along the highway. Harden later made an admission                age limit, lock, stock and barrel.
identifying Butler as the individual who planned the robbery
and Retic as the individual who accompanied him into the            The Government’s feeble response to this facial conflict is
bank.                                                            that the Commission’s interpretation simply “implemented
                                                                 Congress’s directive in a slightly broader fashion.” Gov’t Br.
  In connection with this incident, the indictment charged       at 9. Its sole evidence is the Commission’s own statement
Retic in Count 11 with armed bank robbery in violation of 18     that it was implementing the directive in “slightly broader
U.S.C. § 2113 and 18 U.S.C. § 2, and in Count 12 with using      form.” U.S. Sentencing Commission Guideline Manual,
and carrying a firearm during and in relation to that bank       Appendix C, Amendment 527 (1997). This argument is
robbery in violation of 18 U.S.C. § 924(c). On July 16, 1997,    unpersuasive for two reasons. First, reflexively relying on the
Retic pleaded guilty to Count 11, and on November 14, 1997,      commission’s characterization of its own amendment would
he pleaded guilty to Count 12. At a sentencing hearing held      abandon our judicial role in “determining whether [the]
on April 3, 1998, Retic received a reduction in his sentence     [a]mendment accurately reflects Congress’ intent.” LaBonte,
pursuant to § 5K1.1 of the Sentencing Guidelines for             520 U.S. at 757. More importantly, both the Commission’s
acceptance of responsibility. However, the district court        characterization and the Government’s contention are
enhanced Retic’s offense level by two levels pursuant to         specious. Eliminating the minimum age requirement is far
§ 3B1.4 of the Guidelines on the grounds that he had             more dramatic than introducing a “slightly broader form” of
encouraged a minor, Harden, to participate in the crime. The     the original directive. As this case demonstrates, without the
district court ultimately sentenced Retic to sixty months of     age limit that Congress originally authorized, the guideline
imprisonment for Count 11 and sixty months of imprisonment       introduces a whole host of situations where defendants under
for Count 12, to be served consecutively. Retic filed a timely   age twenty one can receive enhancements for engaging in
notice of appeal to this Court on April 15, 1998.                criminal activities with youths of similar age, or perhaps even
                                                                 older than the defendants themselves. To resolve situations
                             II.                                 such as this, which do not present the underlying concern that
                                                                 the existence of an age differential allows an older, adult party
  Before this Court, both Butler and Retic challenge only        to influence a minor to engage in wrongful or dangerous
their sentences, and not their underlying convictions. We
20    United States v. Butler, et al.       Nos. 98-5552/5554        Nos. 98-5552/5554          United States v. Butler, et al.    5

is consistent with the rationale for why we generally do not         review the district court’s legal conclusions regarding the
entertain issues not raised below—that it is “essential . . . that   Sentencing Guidelines de novo. See United States v. Garner,
parties . . . have the opportunity to offer all the evidence they    940 F.2d 172, 174 (6th Cir. 1991). Moreover, we review a
believe relevant to the issues.” Singleton v. Wulff, 428 U.S.        district court’s factual findings in applying the Sentencing
106, 120 (1976) (internal quotations and citation omitted).          Guidelines for clear error. See United States v. Latouf, 132
When a new argument presents a question of pure law, neither         F.3d 320, 331 (6th Cir. 1997).
party has been denied the opportunity to offer relevant
evidence in making its case. To the contrary, as has occurred                                      A.
in the case sub judice, both sides have had a full “opportunity
to present whatever legal arguments [they] may have” on this            Butler argues that the district court erred by sentencing him
particular issue. Id.                                                as a career offender pursuant to the Sentencing Guidelines.
                                                                     The Guidelines provide that a defendant is a career offender
   Not only is Retic’s argument properly before this Court, it       if (1) he was at least eighteen when he committed the offense
is persuasive. Although Congress has delegated “‘significant         of conviction; (2) the offense of conviction is a felony that is
discretion in formulating guidelines’” to the Commission, the        a crime of violence or a controlled substance offense; and (3)
Commission still “must bow to the specific directives of             the defendant has at least two prior felony convictions of
Congress.” United States v. LaBonte, 520 U.S. 751, 757               crimes of violence or controlled substance offenses. See
(1997) (quoting Mistretta v. United States, 488 U.S. 361, 377        USSG § 4B1.1. The Guidelines further provide that a
(1989)). In ascertaining whether the Commission has                  “controlled substance offense” includes any felony offense,
properly interpreted a directive, courts therefore “defer to [the    state or federal, that involves the distribution of a controlled
Commission’s] interpretation as long as it is ‘sufficiently          substance. See USSG § 4B1.2(b). Butler argues that of the
reasonable’ in light of the Congressional directive.” United         three convictions the district court cited in support of its
States v. Williams, 53 F.3d 769, 772 (6th Cir. 1995) (quoting        § 4B1.1 enhancement, the two “controlled substance
United States v. Kennedy, 32 F.3d 876, 889 (4th Cir. 1994));         offenses” were actually simple possession offenses and the
see also United States v. Nottingham, 898 F.2d 390, 393 (3d          third, a conviction for aggravated burglary, was not a crime of
Cir. 1990) (“To the extent that the enabling legislation             violence. Therefore, Butler argues, his prior convictions did
contains specific direction, the guidelines must comport with        not qualify him as a career offender. Butler’s arguments are
that direction.”) When the Commission’s interpretation, as           in vain.
embodied in a guideline, does not square with clear
Congressional intent, courts will not apply that guideline. See         In determining whether a particular offense constitutes a
United States v. Gaines, 122 F.3d 324, 330 (6th Cir. 1997)           “controlled substance offense” or a “crime of violence” under
(“When Congress and the Sentencing Commission disagree               the Guidelines, this Court employs a categorical approach
on matters of sentencing policy, Congress trumps.”); United          “limited to an examination of the fact of conviction and the
States v. Branham, 97 F.3d 835 (6th Cir. 1996) (holding that         statutory definition of the predicate offense.” United States
the Commission contravened a Congressional directive).               v. Arnold, 58 F.3d 1117, 1121 (6th Cir. 1995). Under this
                                                                     approach, “‘it is not only impermissible, but pointless, for the
  We can not conceive of a clearer example than that                 court to look through to the defendant’s actual criminal
presented here where the Commission has so flatly ignored a          conduct. . . .’” Id. (quoting United States v. John, 936 F.2d
clear Congressional directive. The Violent Crime Control and         764, 767 (3d Cir. 1991)). Indeed, the categorical approach
Law Enforcement Act of 1994 directed the Sentencing                  eliminates “‘the practical difficulties and potential unfairness
6    United States v. Butler, et al.       Nos. 98-5552/5554       Nos. 98-5552/5554          United States v. Butler, et al.    19

of a factual approach’ to each prior conviction.” See United                        ______________________
States v. Kaplansky, 42 F.3d 320, 322 (6th Cir. 1994)
(quoting Taylor v. United States, 495 U.S. 575, 600-02                                 CONCURRENCE
(1990)).                                                                            ______________________
  Significantly, Butler does not contest the fact of his
conviction for the three cited offenses, and does not contest       NATHANIEL R. JONES, Circuit Judge, concurring, with
that the statutes under which he was convicted are statutes        COLE, J., joining.
that criminalize “controlled substance offenses” and “crimes
of violence.” Rather, he argues that this Court should eschew         We concur in the judgment announced by Judge Clay, and
the categorical approach described above by looking at the         with most of Judge Clay’s well-reasoned opinion.
substantive facts behind each of those offenses. Because it is     Nevertheless, we believe defendant Retic, in addition to
improper for a court to go beyond the fact of conviction and       prevailing for the reasons stated in II.B.2, correctly asserts
the definitions of the statutes under which Butler was             that the United States Sentencing Commission failed to
convicted to determine whether he qualified as a career            comport with a clear Congressional directive when it
offender, the district court did not err in enhancing Butler’s     eliminated the requirement that the defendant be at least
sentence under § 4B1.1 of the Guidelines.                          twenty-one years old to be subject to enhancement under
                                                                   U.S.S.G. §3B1.4. We therefore respectfully disagree with
  Finally, although Butler argues that the district court should   regard to the analysis in II.B.1.
have departed downwards in sentencing him, this claim is
unreviewable. The Sentencing Reform Act of 1984 (“Act”)               As a preliminary matter, we are untroubled by the fact that
provides for limited appellate review of sentences for federal     Retic did not make this particular legal argument below.
offenses. See Williams v. United States, 503 U.S. 193, 199         Before the district court, Retic clearly challenged the
(1992). Under the Act, a defendant may only appeal his             application of U.S.S.G. § 3B1.4 to enhance his sentence, J.A.
sentence if it (1) was imposed in violation of law; (2) reflects   at 180-81; he therefore complied with this Court’s
an incorrect application of the Sentencing Guidelines; (3) is      requirement that a defendant object at the district court in
greater than the sentence specified in the applicable              order to avoid waiving that objection on appeal. See United
Guidelines range; or (4) was imposed for an offense for which      States v. Jarman, 144 F.3d 912, 915 (6th Cir. 1998). The
there is no sentencing guideline and is plainly unreasonable.      additional argument he now makes in support of that
See 18 U.S.C. § 3742(a) (1998). Generally, under § 3742, a         objection is one of pure law. “The question is simply the
defendant may appeal if the district court departs upward          proper interpretation and application of the [relevant] statute,”
from the Guideline range, and the government may appeal if         requiring “no new or amplified factual determination.”
the district court departs downwards. See Williams, 503 U.S.       Frederick Steel Co. v. Commissioner of Internal Revenue, 375
at 199. We have consistently held that the decision by a           F.2d 351, 355 (6th Cir. 1967) (internal quotations and citation
district court not to depart downwards from the Guidelines is      omitted). As such, the fact that the argument was not raised
not reviewable on appeal unless the record reflects that the       below is immaterial. See id.; see also Hutton v. United States,
district court was not aware of or did not understand its          501 F.2d 1055, 1062-63 & 1063 n.15 (6th Cir. 1974)
discretion to make such a departure. See United States v.          (recognizing that Frederick Steel Co. articulated an exception
Landers, 39 F.3d 643, 649 (6th Cir. 1994).                         to the general rule that an appellate court cannot entertain an
                                                                   argument based on a theory not raised below). This exception
18   United States v. Butler, et al.    Nos. 98-5552/5554     Nos. 98-5552/5554          United States v. Butler, et al.      7

sentence of Retic and REMAND his case to the district court      Although Butler contends that the district court should have
for resentencing.                                             granted him a downward departure on the grounds that he had
                                                              a diminished capacity due to alcohol and drug abuse and
                                                              because he had a traumatic childhood, he does not argue –
                                                              likely because he cannot – that the district court did not
                                                              understand its ability to make such a departure. Indeed, the
                                                              district court stated:
                                                                There is really not anything factually about this case that
                                                                would warrant a downward departure. The defendant’s
                                                                family circumstances and his background are not
                                                                unusual. They are relatively typical of people engaged in
                                                                criminal conduct. There is no indication that his drug or
                                                                alcohol use in any way constituted diminished capacity
                                                                as contended in the objections. There is just nothing in
                                                                this case that would amount to either an appropriate legal
                                                                basis for a downward departure or that would amount to
                                                                an appropriate legal basis for a downward departure or
                                                                that would factually amount to an appropriate reason to
                                                                go below the guideline range.
                                                              (J.A. at 113.) It seems clear that the district court recognized
                                                              its power to depart downwards but merely exercised its
                                                              discretion not to do so. Consequently, the district court’s
                                                              failure to grant Butler a downward departure is not
                                                              reviewable. Because Butler’s arguments are meritless, his
                                                              sentence is affirmed.
                                                                                            B.
                                                                The arguments Retic makes before this Court, both of
                                                              which attack the decision of the district court to enhance his
                                                              offense level at sentencing pursuant to § 3B1.4 of the
                                                              Guidelines are viewed differently. Section 3B1.4 provides
                                                              that “[i]f the defendant used or attempted to use a person less
                                                              than eighteen years of age to commit the offense or assist in
                                                              avoiding detection of, or apprehension for, the offense,” a
                                                              district court may increase the defendant’s offense level by
                                                              two levels. USSG § 3B1.4 (1998). In his challenge to the
                                                              § 3B1.4 enhancement, Retic argues, for the first time before
                                                              this Court, that to the extent the enhancement applies to
8    United States v. Butler, et al.       Nos. 98-5552/5554       Nos. 98-5552/5554              United States v. Butler, et al.        17

defendants of any age, the provision goes beyond the scope of        Consequently, the district court misapplied the provision.
the mandate Congress granted the Sentencing Commission             The district court found that Retic and Harden were partners
(“Commission”). He further argues that even if § 3B1.4 is          in crime who worked together to rob the Munford Union
valid, the district court should not have applied it in his case   Bank, but failed to find that Retic acted affirmatively to
because he did not use or attempt to use Harden during the         involve Harden in the armed bank robbery beyond merely
bank robbery. Retic does not succeed with his argument that        acting as his partner. The district court did not find that Retic
§ 3B1.4 is generally invalid; however, his argument that the       directed, commanded, intimidated, counseled, trained,
provision does not apply to his case is meritorious.               procured, recruited,  or solicited Harden’s participation in the
                                                                   bank robbery.3 Thus, the district court concluded, on the
                               1.                                  basis of evidence showing that Harden participated in the
                                                                   robbery with Retic and on the inference that they
   Congress enacted the precursor to § 3B1.4 when it passed        “encouraged” one another, that Retic “used” Harden.
the Violent Crime Control and Law Enforcement Act of 1994,         Because the term “use” requires a showing of more than a
Pub. L. No. 103-322, § 140008, 108 Stat. 2033 (1994). This         mere criminal partnership, the district court erred in finding
enabling provision directed the Commission to “promulgate          that Retic used a minor in committing his crime and in
guidelines or amend existing guidelines to provide that a          enhancing Retic’s sentence by two levels pursuant to § 3B1.4.
defendant 21 years of age or older who has been convicted of       Accordingly, Retic’s case is remanded to the district court for
an offense shall receive an appropriate sentence enhancement       resentencing.
if the defendant involved a minor in the commission of the
offense.” Id. Although the sentence enhancement created by                                           III.
Congress included language restricting its application to
defendants 21 years of age or older, in adopting § 3B1.4, the        As previously explained, the district court did not err in
Commission dropped the age restriction, rendering the              sentencing Butler as a career offender pursuant to § 4B1.1 of
sentence enhancement applicable to defendants of all ages.         the Guidelines, and was aware of its authority to depart
Retic, who was 20 years old when he committed this crime,          downwards in sentencing Butler, but simply exercised its
therefore argues that § 3B1.4 goes beyond the limited              discretion not to do so. However, because a defendant must
authorization Congress granted, and that as a defendant under      do more than merely act as a partner with a minor in crime, in
the age of 21 at the time of the offense, he should not be         order to “use” a minor in crime under § 3B1.4, this
subject to a sentence enhancement for involving a minor in         enhancement does not apply to Retic and his sentence was
his crime. Although this argument carries some facial appeal,      erroneously imposed. Accordingly, we AFFIRM the
it lacks merit.                                                    judgment of the district court as to Butler, but VACATE the
  In 1984, Congress created the Commission, charging it with
“establish[ing] sentencing policies and practices for the              3
                                                                         The facts, at best, show only that Retic and Harden possessed equal
Federal criminal justice system.” 28 U.S.C. § 991 (1985).          authority in their commission of the crime. As Retic points out, it was
Since this delegation of power was constitutional, sentencing      Harden who directed Retic not to shoot the customer service
guidelines promulgated by the Commission now bind the              representative at the bank. Moreover, when asked about the crime,
federal courts. See Mistretta v. United States, 488 U.S. 361,      Harden identified Butler, and not Retic, as the individual who planned the
                                                                   robbery. Although it therefore seems more likely that Butler “directed”
391 (1989). Although Congress legitimately granted the             a minor to commit a crime, the district court did not have the opportunity
Commission “significant discretion in formulating                  to make such a finding because the government dropped its charge against
                                                                   Butler in connection with this particular robbery.
16    United States v. Butler, et al.       Nos. 98-5552/5554       Nos. 98-5552/5554         United States v. Butler, et al.      9

the offender and the minor(s) involved in the offense.”             guidelines,” id. at 377, the discretion of the Commission
§ 140008(b) (emphasis added). Congress’ inclusion of these          “must bow to the specific directives of Congress.” United
considerations indicates that to deserve § 3B1.4 enhancement,       States v. LaBonte, 520 U.S. 751, 757 (1997). When the
one must do more than simply participate in crime with a            Commission seeks to amend a guideline, it must submit a
minor. If the contrary were true, the relative ages of the          proposed amendment to Congress, along with reasons
offender and the minor would be irrelevant; by deeming age          explaining the amendment, and must give Congress 180 days,
relevant, Congress likely imagined an offender who actually         or roughly six months, to modify or disapprove the
exercised some control or took some affirmative role in             amendment. See 28 U.S.C. § 994(p) (1994). Under this
involving the minor.                                                “report and wait” provision, if Congress fails to act, the
                                                                    proposed amendment will take effect. See id. Taking this
   Finally, it is instructive to consider the analogous statutory   process into account, this Court has recognized that “[w]hen
provision criminalizing the use of juveniles in drug                Congress and the Commission disagree on matters of
trafficking, which makes it unlawful for an adult to                sentencing policy, Congress trumps. . . . Where the
“knowingly and intentionally employ, hire, use, persuade,           Guidelines and a statute conflict, the statute (an act of
induce, entice, or coerce, a person under eighteen years of         Congress) controls.” United States v. Gaines, 122 F.3d 324,
age” to violate federal drug laws. 21 U.S.C. § 861 (1998).          330 (6th Cir. 1997).
Indeed, in giving the Commission the authority to create
§ 3B1.4, Congress made indirect reference to this statute              To determine whether a guideline adopted by the
when it observed that the Guidelines set forth a two-level          Commission is at odds with the directives of Congress and
sentence enhancement for crimes involving a minor in a drug         must therefore give way, the language of the statute is looked
trafficking offense. See Violent Crime Control and Law              at first. See LaBonte, 520 U.S. at 757. In the statute enabling
Enforcement Act of 1994, § 140008(b)(3); USSG § 2D1.1               § 3B1.4, Congress adopted the following language:
(noting its application to § 861 convictions). Courts
interpreting § 861 have observed that where the evidence              SEC. 140008. SOLICITATION OF MINOR TO
shows a juvenile was involved in the defendant’s drug                 COMMIT CRIME
operation, the government must produce additional evidence
showing that the defendant was responsible for some                   (a) Directive to Sentencing Commission.
affirmative or active “use” of the juvenile. See, e.g., United        (1) The United States Sentencing Commission shall
States v. McDonald, 877 F.2d 91, 93 (D.C. Cir. 1989). In              promulgate guidelines or amend existing guidelines to
analyzing the sufficiency of evidence supporting a § 861              provide that a defendant 21 years of age or older who has
conviction, we have looked for proof of the juvenile’s                been convicted of an offense shall receive an appropriate
subservience to the defendant in the drug operation in                sentence enhancement if the defendant involved a minor
response to the claim that the juvenile was an independent            in the commission of the offense.
drug dealer over whom the defendant exerted no influence.             (2) The Commission shall provide that the guideline
See United States v. Segines, No. 95-3534, 1996 WL 287254,            enhancement promulgated pursuant to paragraph (1) shall
at *8 (6th Cir. May 8, 1996) (unpublished). Thus, it appears          apply for any offense in relation to which the defendant
that in the criminal context, “using” a minor to carry out            has solicited, procured, recruited, counseled, encouraged,
criminal activity entails more than being the equal partner of        trained, directed, commanded, intimidated, or otherwise
that minor in committing a crime.                                     used or attempted to use any person less than 18 years of
10       United States v. Butler, et al.          Nos. 98-5552/5554           Nos. 98-5552/5554          United States v. Butler, et al.   15

  age with the intent that the minor would commit a                           adjustments entitled “Role in the Offense.” USSG Ch. 3,
  Federal offense.                                                            Pt.B. The introductory commentary to this part of the
                                                                              Guidelines states that it sets forth “adjustments to the offense
Violent Crime Control and Law Enforcement Act of 1994,                        level based upon the role the defendant played in committing
Pub. L. No. 103-322, § 140008, 108 Stat. 2033 (1994). At                      the offense.” USSG Ch. 3, Pt.B, intro. comment. Under the
first blush, it appears, as Retic alleges, that Congress                      generous construction adopted by the district court, any
intended—and provided in unambiguous terms—for sentence                       defendant who partnered with a minor in a crime would be
enhancement for solicitation of a minor to commit crime only                  subject to a two-level enhancement, creating, in effect, a
for defendants age 21 and older. A clearer expression of                      “strict liability enhancement.” However, this view conflicts
congressional intent is unimaginable.                                         with the notion that the enhancement is reserved for
                                                                              defendants who play a particular role in the offense. Indeed,
   However, Congress’ expression of intent as to § 3B1.4 did                  if numerous adult defendants participated in a crime along
not begin and end with its enactment of § 140008. When the                    with a minor, every single one of the adult defendants would
Commission drafted § 3B1.4 to reflect the congressional                       be subject to the two-level enhancement, regardless of the
directive set forth in § 140008, it did so by proposing                       roles they played in involving the minor in the crime. Such a
Amendment 527 to the Sentencing Guidelines. See USSG                          result would ostensibly render the characterization of § 3B1.4
App. C. (1998). In accordance with statutory procedures                       as a “role in the offense” adjustment a misnomer.
regarding the proposal of amendments to the Guidelines, the
Commission then submitted Amendment 527, along with                             Moreover, sentencing guidelines are to be interpreted and
many other proposed amendments, to Congress on May 1,                         applied so that they are consistent with the statute that
1995, and specified an effective date of November 1, 1995.                    authorized them. See Stinson v. United States, 508 U.S. 36,
See Amendments to the Sentencing Guidelines for the United                    45 (1993). Congress labeled the provision enabling § 3B1.4
States Courts, 60 Fed. Reg. 25074, 25086 (May 10, 1995).                      “Solicitation of a Minor to Commit Crime.” Violent Crime
Significantly, in submitting Amendment 527, the Commission                    Control and Law Enforcement Act of 1994, § 140008. The
stated as the reason for its proposal that the amendment                      dictionary defines “solicitation” as “[a]sking; enticing; urgent
“implements the directive in Section 140008 of the Violent                    request. The inchoate offense of asking someone to engage
Crime Control and Law Enforcement Act of 1994 (pertaining                     in illegal conduct.” Black’s Law Dictionary 1392 (6th ed.
to the use of a minor in the commission of an offense) in a                   1990). As one could not passively solicit the participation of
slightly broader form.” 60 Fed. Reg. at 25086. On October                     a minor in crime, this suggests that the enhancement should
30, 1995, Congress considered and rejected some of the                        apply when a defendant takes affirmative acts to involve a
amendments proposed on May 1, 1995, see Pub. L. No. 104-                      minor. Moreover, while setting forth the suggested
38, 109 Stat. 334 (1995), but    did not act to modify or                     definitions for the term “use” adopted in Application Note 1,
disapprove Amendment 527.1 Thus, Amendment 527,                               Section 140008 also identified a number of “relevant
codified as § 3B1.4, became effective on November 1, 1995.                    considerations” that indicate Congress did not intend to create
See USSG App. C.                                                              “strict liability enhancement” for anyone who merely
                                                                              participates in crime with a minor. Violent Crime Control
                                                                              and Law Enforcement Act of 1994, § 140008. For example,
     1                                                                        Congress instructed the Commission to consider “the severity
      For example, Congress disapproved of a proposed amendment that
would have eliminated the 100:1 sentencing ratio that treats one who deals    of the crime that the defendant intended the minor to commit”
in a given quantity of crack cocaine the same as it treats one who deals in   and “the possible relevance of the proximity in age between
100 times as much powder cocaine. See Gaines, 122 F.3d at 327.
14   United States v. Butler, et al.       Nos. 98-5552/5554       Nos. 98-5552/5554          United States v. Butler, et al.     11

  within the guideline range, although this is certainly not         Against this historical backdrop, Retic essentially invites
  the clear -- it’s a fairly close issue based on some of the      the Court to hold that in spite of its inaction when faced with
  other language of the application note.                          Amendment 527, Congress intended, as it originally stated in
                                                                   § 140008, that sentence enhancements for the involvement of
(J.A. at 70-71.) Our review of § 3B1.4 leads us to disagree        minors in crime should apply only to defendants who are 21
with the district court’s analysis.                                years of age and older. Given the context, Retic’s invitation
                                                                   cannot be accepted. The provision that allowed Congress six
   It was proper for the district court to take a plain language   months to review and displace Amendment 527 resembles the
approach in its interpretation of § 3B1.4, because courts must     “report and wait” provision of the enabling acts for the
treat the sentencing guidelines “as if they were a statute” and    Federal Rules of Civil Procedure and the Federal Rules of
follow “the clear, unambiguous language if there is no             Evidence. See United States v. Scampini, 911 F.2d 350, 353
manifestation of a contrary intent.” United States v. Lewis,       (9th Cir. 1990) (quoting United States v. Smith, 713 F. Supp.
900 F.2d 877, 881 (6th Cir. 1990); see also Lopez-Lopez,           1315, 1318-19 (D. Minn. 1989)). The Supreme Court has
1998 WL 788875, at *1 (holding that courts may use the             long affirmed the validity of “report and wait” procedures and
“common meaning of ‘use’” in applying § 3B1.4). However,           the significance of congressional inaction under such
the district court relied heavily on a definition for the term     procedures, observing in a case challenging the Federal Rules
“encourage” and not for the term “use,” and even then chose        of Civil Procedure that:
not to rely upon the definition of “encourage” set forth
specifically for the criminal legal context, namely “to              The value of the reservation of the power to examine
instigate.” Black’s Law Dictionary 527 (6th ed. 1990). The           proposed rules, laws and regulations before they become
dictionary defines “use” as “[t]o make use of; to convert to         effective is well understood by Congress. It is
one’s service; to employ; to avail oneself of; to utilize; to        frequently, as here, employed to make sure that the action
carry out a purpose or action by means of; to put into action        under the delegation squares with the Congressional
or service, especially to attain an end.” Black’s Law                purpose. Evidently the Congress felt the rule was within
Dictionary 1541 (6th ed. 1990). A consideration of the               the ambit of the statute as no effort was made to
definitions of “use” supports the notion that § 3B1.4 would          eliminate it from the proposed body of rules, although
require more affirmative action on the part of a defendant.          . . . [t]he Preliminary Draft of the rules called attention to
See Bailey v. United States, 516 U.S. 137, 145 (1995) (finding       the contrary practice . . ., as did the Report of the
that “[t]hese various definitions of ‘use’ imply action and          Advisory Committee and the Notes prepared by the
implementation”); see also LeFave, 1998 WL 10362, at *1              Committee to accompany the final version of the rules.
(observing that although mere awareness of a minor’s                 That no adverse action was taken by Congress indicates,
involvement would not warrant § 3B1.4 enhancement, active            at least, that no transgression of legislative policy was
payment by a defendant to a minor for illegal work would             found. We conclude that the rules under attack are
merit such enhancement).                                             within the authority granted.
  In an effort to determine the true meaning of § 3B1.4, the       Sibbach v. Wilson & Co., Inc., 312 U.S. 1, 15 (1941). The
language and design of the statute as a whole as well as the       Court has continued to find valid the enactment of rules
specific provision at issue must be considered. See KMart          through “report and wait” provisions. See, e.g., Alaska
Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). Section          Airlines, Inc. v. Brock, 480 U.S. 678, 690 & n.12 (1987); INS
3B1.4 falls under a category of sentencing guideline               v. Chadha, 462 U.S. 919, 935 & n.9 (1983).
12   United States v. Butler, et al.       Nos. 98-5552/5554       Nos. 98-5552/5554              United States v. Butler, et al.        13

  These cases instruct that Congress reserved for itself the       Harris, 165 F.3d 1062, 1067 (6th Cir. 1999) (finding § 3B1.4
opportunity to review proposed amendments to guidelines            enhancement proper not because defendant “used” a minor,
through a “report and wait” provision, and that by failing to      but because the minor “assisted” defendant in avoiding2
act to modify or disapprove Amendment 527 even when                detection of the offense). Since the provision is fairly new,
notified that it was different from the directive enacted in       very few courts have interpreted the “use” or “attempted to
§ 140008, Congress, in effect, approved of Amendment 527           use” aspect of § 3B1.4. See, e.g., United States v. Benjamin,
as an appropriate reflection of its policy on the sentencing of    116 F.3d 1204, 1206 (7th Cir. 1997); United States v. Lopez-
those who involved minors in their crimes. Cf. United States       Lopez, No. 98-50030, 1998 WL 788875, at *1 (9th Cir. Nov.
v. Munoz-Realpe, 21 F.3d 375, 377 (11th Cir. 1994)                 5, 1998) (unpublished); United States v. LeFave, No. 96-
(concluding that by allowing an amendment to the Guidelines        50618, 1998 WL 10362, at *1 (9th Cir. Jan. 13, 1998)
to take effect, Congress gives its “imprimatur” to the new         (unpublished).
guideline). Thus, although the initial intent of Congress
would have been at odds with § 3B1.4, the history behind the         Here, the district court followed a path somewhat similar to
passage of § 3B1.4 compels a finding that the intent of            that taken by the court in Benjamin, where the United States
Congress changed. While at first Congress expressly directed       Court of Appeals for the Seventh Circuit affirmed an
the Commission to exclude defendants under the age of 21           enhancement pursuant to § 3B1.4 where the defendant and the
from this sentence enhancement, through its inaction under         minor were “partner[s] in crime” and co-conspirators. 116
the “report and wait” provision of § 994(p), Congress              F.3d at 1206. While conceding that the list of words set forth
ultimately failed to express disagreement with expansion of        in Application Note 1 of the Commentary to the provision
the enhancement to include defendants under the age of 21.         “would connote some pressure or affirmative action,” the
This is not the situation in which the intent of Congress and      district court placed emphasis on the definition of the term
the position adopted by the Sentencing Guidelines are at odds;     “encouraged” as set forth in Black’s Law Dictionary. That
therefore, the enactment of § 3B1.4 was valid, and the             publication defines “encourage” as “[i]n criminal law, to
Commission did not overstep the bounds of its authority.           instigate; to incite to action; to give courage to; to inspirit; to
                                                                   embolden; to raise confidence; to make confident; to help; to
                              2.                                   forward; to advise.” Black’s Law Dictionary 527 (6th ed.
                                                                   1990). The district court then found that:
  Since Retic cannot prevail in his general attack on the
validity of § 3B1.4, we turn now to his claim that it was            Mr. Retic and Mr. Harden worked together to commit the
improper for the district court to apply § 3B1.4 given the facts     crime. They helped one another, and they encouraged
of his case. Specifically, he cites the absence of proof that he     one another simply by their own participation. The
used or attempted to use Harden during the bank robbery. In          presence and involvement of each was an emboldening
determining whether a defendant “used or attempted to use”           factor to the other, and so I would agree that there is not
a minor so as to warrant a § 3B1.4 enhancement, a sentencing         any indication that Mr. Retic, as an adult, was pressuring
court should bear in mind that “‘[u]sed or attempted to use’         Mr. Harden as a minor . . . he did use a minor in the
includes directing, commanding, encouraging, intimidating,           sense that I have described, and I think that does fall
counseling, training, procuring, recruiting, or soliciting.”
USSG § 3B1.4, comment. (n.1). This Court has yet to
construe the meaning of the term “use” or the phrase
                                                                       2
“attempted to use” in this context. See United States v.                The version of § 3B1.4 applied by the district court became effective
                                                                   on November 1, 1995. See USSG. App. C.
