United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued April 2, 2018                    Decided May 25, 2018

                         No. 12-3036

                UNITED STATES OF AMERICA,
                        APPELLEE

                               v.

 AUMBREY WINSTEAD, ALSO KNOWN AS ANDRE WINSTEAD,
                    APPELLANT


         Appeal from the United States District Court
                 for the District of Columbia
                    (No. 1:11-cr-00242-1)


     Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender. Tony Axam Jr., Assistant Federal
Public Defender, entered an appearance.

     David P. Saybolt, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Jessie K. Liu, U.S.
Attorney, and Elizabeth Trosman, Assistant U.S. Attorney.

    Before: GARLAND, Chief Judge, and EDWARDS and
SILBERMAN, Senior Circuit Judges.
                                2

    Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.

     SILBERMAN, Senior Circuit Judge: This is a quite unusual
criminal case. Appellant Aumbrey Winstead challenges his
conviction for possession of a firearm (by a person convicted of
a crime punishable by imprisonment of more than one year),
possession with intent to distribute cocaine, and possession of a
firearm during a drug trafficking offense. His primary
evidentiary claim relates to the admission of evidence of prior
crimes, which he asserts were stale. Although we think he has
a point, it doesn’t matter because the evidence of guilt was
overwhelming. However, he also asserts that he received
ineffective assistance of counsel, both at trial and at sentencing.
Per our normal practice, we remand to the district judge the
issue of ineffective assistance at trial, but we conclude – as a
matter of law – that Appellant received ineffective assistance at
sentencing, and that his sentence as a career criminal was
improper. We therefore remand for new sentencing.

                         I. THE TRIAL

                               A.

     The catalyst for the events leading to Winstead’s arrest was
a car accident. On May 15, 2011, Shervonne Murphy stopped
her car at a red light as she returned home from church with her
daughter and her boyfriend. Winstead was riding in another
vehicle – driven by a man named George – when it plowed into
Murphy’s car while she was stopped at the intersection. George
quickly offered Murphy $20,000 and attempted to prevent her
from calling the police, but she called 9-1-1. Fearing for her
safety after observing what she believed to be a gun under
Winstead’s shirt, and judging from his behavior that he was
                                3

“totally wasted,” she called 9-1-1 a second time and asked the
police to hurry. Before the police arrived, Murphy and her
boyfriend saw Winstead walk across the street and up a hill into
the woods, where he briefly disappeared from their sight. When
he returned shortly thereafter, the bulge under his shirt was
gone.

      When the police arrived and decided that Winstead and
George were “acting very squirrelly,” the two were handcuffed
and seated next to each other on the curb. One officer
conducted a protective pat-down to search for weapons, and
testified that he felt a bulge and a wad of money in Winstead’s
cargo pocket, but he didn’t remove them. He noticed Winstead
nudge George with his leg and then nod to the wooded area
where he had previously disappeared. Suspicious of the
situation, the officer hid behind a nearby telephone box and
waited for his fellow officers and the two cars from the accident
to clear the scene. Sure enough, soon after the other policemen
left, George’s car returned, and the officer observed Winstead
jogging back toward the wooded area. The officer followed him
and hid in “a shadowy spot,” where he watched Winstead pace
back and forth “a couple of times as if he were looking for
something” and then proceed to bend over and “pick[] up a
shiny object,” which the officer believed to be a handgun.
Winstead then received a call on his cell phone and immediately
dropped the shiny object, lit a cigarette, and began to walk out
of the woods.

     At this point, the hidden officer called for support from his
two colleagues, who returned in their squad cars and arrested
Winstead. He then walked from his hiding place to the location
where he had observed Winstead pick up and drop the shiny
object, and found two firearms. When Winstead was searched
incident to his arrest, police found money and 25 ziplock bags
                                4

of cocaine packaged inside a larger ziplock bag marked with an
apple emblem within his cargo pocket.

     Winstead was taken to jail. During his stay, several
recorded phone calls were logged under his unique telephone
identification number. The caller – who identified himself as
“Brey” and whose voice was identified as Winstead’s by a
witness when the recording was played at trial – placed one call
to a woman Winstead had been seeing, Ms. Genai Johnson. He
complained that George should not claim that the caller owed
him anything: “You shouldn’t have crashed the m—f—in’ car
while we got s— in the car, man. I hid the m—f—in’ hammers
for you, n—.”1

     Winstead chose to testify. He asserted that he went into the
woods after the car accident in order to relieve himself, and that
as he walked back to the car, George “grabbed something out of
the back of the trunk that was wrapped up, and then George
went into the woods.” Winstead claimed that after departing the
scene following the initial police interaction, he realized that he
had forgotten his cell phone, and returned to the area where he
had relieved himself to retrieve it. Winstead testified that no
drugs were found on his person during the search incident to his
arrest. When the recording of the discussion of hiding the
“hammers” was re-played during Winstead’s cross examination,
he denied that the caller’s voice was his.




    1
       A government witness testified that the term “hammers” is
commonly used as slang for guns. One of the two guns found by the
officers was a large black 9mm firearm with an extended magazine;
the other was a “shiny small” .22 caliber handgun.
                               5

     Winstead also testified that he commonly stayed at Ms.
Johnson’s apartment, located at 1333 Savannah Street in
Southeast Washington. As it happened, the police executed a
search warrant at that apartment four days prior to the car
accident. Although Winstead had denied that it had been Ms.
Johnson’s voice on the prison phone call, he admitted that he
was present in her apartment during the search and that he
recognized some of the items found there. He denied
ownership, however, of other items the police found in the
apartment: a 9mm pistol, two ounces of PCP, vials used for PCP
distribution, and small ziplock bags and apple bags similar to
those allegedly found in his pocket on the night of the car
accident. When another jail phone call was played, which he
admitted was his voice, he was heard lamenting that “they ran
into Shorty’s house and took all of my s—.” He denied,
however, that Ms. Johnson was the “Shorty” in question, noting
that he had “other female friends,” but declining to say who was
on the phone. Nor did Winstead explain which seizure his
statement referred to, if not the Savannah Street search.

     The prosecution introduced evidence of Winstead’s prior
crimes for impeachment and to prove knowledge and intent with
respect to his charges. He admitted to three previous
convictions. In 1998, he was convicted of attempted possession
with intent to distribute 23 ziplock bags of cocaine. In 2002, he
sold marijuana in a ziplock bag to an undercover officer,
resulting in a conviction for attempted distribution. And in
2004, he was caught with a 9mm pistol during a traffic stop and
was convicted of unlawful possession of a firearm by a person
previously convicted of a crime punishable by imprisonment for
a term exceeding one year, or “felon in possession.” Besides
Winstead’s admissions, the prosecution offered the testimony of
the policeman who discovered the pistol, as well as court
documents from the three cases.
                                  6

     The jury found Winstead guilty of three crimes: unlawful
possession of a firearm by a person convicted of a crime
punishable by imprisonment for a term exceeding one year,2
possession with intent to distribute cocaine,3 and possession of
a firearm during a drug trafficking offense.4

                                  B.

      Appellant’s primary complaint concerning the judge’s trial
rulings focused on the admission of his prior crimes.
Particularly in light of our deferential standard of review of a
district judge’s decision to admit such evidence under Federal
Rules 403 and 404(b) (abuse of discretion), two of his claims are
insubstantial. Winstead complains that the district judge – who
did give a limiting instruction to the jury with respect to the
prior crimes evidence – should have given it more than once.
But we have never so held.5 See United States v. McCarson,
527 F.3d 170, 174 (D.C. Cir. 2008). He also contends his prior
gun conviction was irrelevant to his drug crime. But the
government’s drug expert testified that the distribution of drugs
is a risky business – there are groups in the city who prey upon
and rob drug dealers. Drug dealers thus typically carry pistols
such as Winstead was convicted of possessing in 2004. In other

    2
        18 U.S.C. § 922(g)(1).
    3
        21 U.S.C. §§ 841(a)(1), 841(b)(1)(C).
    4
        18 U.S.C. § 924(c)(1).
    5
      Indeed, Winstead did not even request additional instructions
when the evidence was admitted. See United States v. Miller, 895
F.2d 1431, 1439 (D.C. Cir. 1990) (citing United States v. Lewis, 693
F.2d 189, 196 (D.C. Cir. 1982)).
                                 7

words, a pistol is a tool of the trade, and its possession is
therefore probative of knowledge and intent. See United States
v. Cassell, 292 F.3d 788, 793 (D.C. Cir. 2002).

     More troubling, however, is Appellant’s contention that
under our precedent, his past crimes are stale and, therefore, no
longer relevant. In that regard, we recently held that a ten-year-
old PCP conviction was too old to be used to establish
knowledge for a similar crime. United States v. Sheffield, 832
F.3d 296, 307-08 (D.C. Cir. 2016). The government would
distinguish Sheffield. It first points out that in Sheffield only the
fact of the prior crime was introduced, reducing its probative
value relative to its prejudicial effect. In this case, however, the
government introduced extensive evidence drawing a parallel
with Winstead’s later behavior. The 1998 conviction involved
ziplock bags of cocaine, which Winstead had confessed he
intended to distribute, and the pistol used in 2002 was of the
same caliber – 9 mm – as the larger firearm used in the instant
case. We suppose there may be something to this distinction,
but we are not sure which way it cuts. It is not clear to us that
the greater detail does not come with greater prejudice as well.

     The government’s primary ground offered to distinguish
Sheffield – drawing upon a notion several courts have accepted,
see United States v. Cherry, 433 F.3d 698, 702 & n.4 (10th Cir.
2005); United States v. Brooks, 736 F.3d 921, 940 (10th Cir.
2013); United States v. Sterling, 738 F.3d 228, 238-39 (11th Cir.
2013); United States v. Halk, 634 F.3d 482, 487-88 (8th Cir.
2011) – is that the staleness of old crimes is lessened if part of
the time between the defendant’s old crime and a new case was
spent in prison. Although our sister circuits do not explain their
reasoning, we think that they are assuming that conversations in
prison would refresh a prisoner’s knowledge of the modus
                                  8

operandi of drug crimes.6 We are not sure that is a legitimate
assumption in every case.

     Be that as it may, we have no need to decide this question
today. Regardless of whether the prior convictions were too
stale for admission – such that their probative value was
substantially outweighed by their prejudicial effect under Rule
403 – overwhelming evidence of Winstead’s guilt was presented
in this case. Jurors heard testimony from two civilian witnesses
who observed a bulge under Winstead’s clothes that was gone
when he returned from the woods. They heard testimony from
a policeman who followed Winstead when he went back into the
woods to retrieve the guns, and found them there. They heard
testimony from other officers who found the baggies on his
person after arresting him, and saw the test results confirming
that the baggies contained cocaine. They heard the recordings
of Winstead’s jail phone calls in which he admitted that he hid
the “hammers” for George and discussed the Savannah Street
search. They examined properly admitted evidence from that
search, including a firearm, clothing that he admitted to
recognizing, suspected PCP, and plastic packaging baggies that
were almost identical to the ones found on his person only four




     6
       If past crimes could be shown to demonstrate a propensity to
commit the same crime, it could be argued that a long stretch in prison
is not commensurable with a period of criminal inactivity in society,
because the individual lacked the opportunity to recidivate while in
prison. But this is, of course, precisely the type of inquiry that Rule
404(b) forecloses. Nevertheless, some courts appear to hint at this
alternative logic. See United States v. Cherry, 433 F.3d 698, 702 n.4
(10th Cir. 2005).
                                   9

days later.7 And when Winstead chose to take the stand, the
jurors heard him use his voice to deny, under oath, that the
recording of his voice actually contained his voice. We
therefore hold that any error – if it was – in admitting the prior
crimes evidence was harmless. See Sheffield, 832 F.3d at 309.

                        II. THE SENTENCE

                                   A.

    The government requested a sentence of 360 months, the
bottom end of what it described as the applicable guideline
range of 360 months to life imprisonment. This was calculated
pursuant to United States Sentencing Guideline § 4B1.1(c), and
– most important – was based on a determination that
Winstead’s past convictions render him a career offender under
§ 4B1.1(a). As a career offender convicted of 18 U.S.C.
§ 924(c), his guideline range must be calculated using the Career
Offender Table in § 4B1.1(c)(3).8


     7
       Winstead also argues that the admission of the Savannah Street
evidence – which he claims occurred only as a result of ineffective
assistance of counsel – was prejudicial. We address the ineffective
assistance of counsel claims below, but we note here that even without
the Savannah Street evidence, we would find any error with respect to
the previous three convictions harmless in light of the significant
evidence against him.
     8
       Because Winstead was convicted of other crimes in addition to
the § 924(c) offense, § 4B1.1(c)(2) dictates a guideline range
calculated as "the greater of" two alternatives: either adding together
the separate sentences for his offenses, or utilizing the Career Offender
Table in § 4B1.1(c)(3). In Winstead’s case, the latter – assigning a
range of 360 months to life – was greater.
                                10

     It’s not as if the prior convictions were Appellant’s only
blemishes.       The government noted in its sentencing
memorandum that Winstead, within one year of his release from
serving time for his third prior conviction, was arrested for
distributing marijuana on September 14, 2010. The government,
however, declined prosecution. Two weeks later, on September
28, 2010, he was arrested for felony possession of a vial of PCP.
However, the charges were dismissed because a chemist at the
Drug Enforcement Agency failed to follow the appropriate
chain-of-custody procedures. And before that case had even
been dismissed, Winstead was arrested in December of 2011 for
distribution of heroin, but prosecutors did not bring a case.9
Finally, the government noted that a judge found probable cause
for the Savannah Street search warrant based on evidence
implicating Winstead as a suspect in the March 2011 murder of
a prostitute in Southeast Washington, approximately two months
before the car accident in this case.

     Still, whatever his history, once Appellant was adjudged a
career criminal, the guideline range for his sentence jumped
from 211-248 months to 360 months-life. In other words, that
designation added approximately 10 years to Appellant’s
sentence. Accordingly, the district judge, describing Winstead
as a career offender, sentenced him to 360 months.



    9
        The government explained that “[a]n undercover officer
observed [Winstead] engage in a hand-to-hand transaction with a
second individual in which [Winstead] exchanged a small object for
currency. The police stopped the second individual, who was holding
a ziplock of heroin, and then stopped [Winstead].” However, because
the police found only cash on Winstead’s person, but no additional
heroin, the United States Attorney’s Office did not prosecute him.
                                11

     Unfortunately, Winstead’s counsel did not put up much
opposition at the sentencing hearing. While he did object that
the guideline was “excessive” given the small quantity of drugs
involved and the fact that Winstead did not brandish the guns in
question or engage in violence, counsel’s primary objection was
that the statutory enhancement under 21 U.S.C. § 851 might not
apply, given that only 2.5 grams of drugs were involved. This
argument was irrelevant, however, because Winstead’s range
was ultimately based on the Career Offender Table in
§ 4B1.1(c)(3) rather than on the statutory enhancement that
counsel cited. See USSG § 4B1.1(c)(2).

    Following this brief attempt to mitigate the sentence,
Winstead’s counsel proceeded to address the court with
“cand[or]”:

         I could not find a factual basis to argue with any hope
         of persuasion to a court that a variance from the
         guideline range was appropriate. I couldn’t find it,
         Your Honor, not in these facts, not in my client’s
         background. It’s not there. I was not going to ask for
         it. My client is resigned to his fate. . . . I can only be
         candid with this court. I know this court’s feeling
         about certain types of behavior very well. . . .

         I think the bottom of the calculated guideline range,
         Your Honor, as the government indicates, is a
         homicide sentence, is 30 years. It’s a first-degree
         murder sentence. . . . I wish I had a basis to argue to the
         Court there was something in my client’s history to
         suggest that something less than 30 years would
         constitute – bottom of the guidelines would constitute
         just punishment.
                                12

         My hands are tied, Your Honor. I cannot. I’ve
         explained that to my client, and he fully expects at least
         a 30-year sentence to be imposed by this court. He
         expects that.

                                B.

      The most powerful argument challenging Appellant’s
sentence is the textual one: that attempted drug offenses, which
caused his career criminal status, are not included in the
guidelines. Instead, attempts are only added in the commentary
to the guidelines. But – and it is a big “but” – this issue was not
raised below. Therefore, our normal standard of review is plain
error. And that standard can not possibly be met since this very
issue has been decided against Appellant in several other
circuits. United States v. (Norman) Williams, 350 F.3d 128, 130
(D.C. Cir. 2003). There remains, however, the question how
this textual issue appears to us in the context of Appellant’s final
argument – that he was disadvantaged because of ineffective
assistance of counsel.

         III. INEFFECTIVE ASSISTANCE OF COUNSEL

                     A. Pre-Trial and Trial

    Appellant raises a number of arguments supporting his
claim that his counsel’s representation before and during trial
was inadequate. The government’s response is that the case
against Winstead was overwhelming and, therefore, he was not
prejudiced.

    Ironically, the very strength of the government’s case makes
the decision to go to trial rather than accept a plea rather
                                 13

puzzling.10 Appellant claims that he was not effectively
represented in plea negotiations. The record is quite sketchy
regarding plea discussions, so in accordance with our normal
practice when we cannot definitely reject an ineffective
assistance of counsel claim, United States v. Rashad, 331 F.3d
908, 912 (D.C. Cir. 2003), we will remand the trial issues to the
district judge.

                          B. Sentencing

     Appellant makes a number of arguments concerning his
counsel’s mistakes at sentencing, including his failure to ask for
a downward variance (we certainly have the impression from the
dialogue that we set forth above that counsel didn’t have his
heart in a claim for more lenient treatment). But by far the most
damaging error the counsel made, according to Appellant, was
not to raise the textual argument referred to above: that his
previous crimes which were counted to make him a career
criminal – “attempted” distribution of, and “attempted”
possession with intent to distribute, drugs – are listed in the
commentary to the guidelines but not in the guidelines
themselves. Although, as we noted, at least five circuits have
held the commentary a legitimate interpretation of the
guidelines, we had not decided the issue, and the 8th Circuit en
banc opinion was accompanied by a strong dissent.11 United

    10
       Even with no plea offer, acceptance of responsibility alone
would have reduced Appellant’s sentence significantly.
    11
       While Mendoza-Figueroa focused on the underlying statutory
dispute that we addressed in United States v. Price, 990 F.2d 1367
(D.C. Cir. 1993), see infra note 13, the dissent stressed that “Note 1
could not support the defendant’s sentence as a career offender”
because it was not supported by the statutory text in which it was
                              14

States v. Mendoza-Figueroa, 65 F.3d 691, 694-98 (8th Cir.
1995) (en banc) (Gibson, J., dissenting).

     Therefore, in the absence of an objection, Winstead’s 30-
year sentence was calculated pursuant to United States
Sentencing Guideline § 4B1.1(c), based on a determination that
he is a career offender under § 4B1.1(a). That guideline confers
career offender status on persons with two prior felony
convictions of “either a crime of violence or a controlled
substance offense.” USSG § 4B1.1(a)(3). In Winstead’s case,
the district judge determined that his two previous drug crimes
were controlled substance offenses (the gun possession does not
qualify as a crime of violence).

    According to the commentary to that guideline, the term
“controlled substance offense” is “defined in § 4B1.2.” USSG
§ 4B1.1, Application Note 1. And that guideline – which,
Winstead points out, is titled “Definitions of Terms used in
Section 4B1.1” – states as follows:

         The term “controlled substance offense” means an
         offense under federal or state law, punishable by
         imprisonment for a term exceeding one year, that
         prohibits the manufacture, import, export, distribution,
         or dispensing of a controlled substance (or counterfeit
         substance) or the possession of a controlled substance
         (or a counterfeit substance) with intent to manufacture,
         import, export, distribute, or dispense.

USSG § 4B1.2(b) (emphasis added).



grounded. 65 F.3d at 697.
                                 15

     As is apparent, neither the crime of attempting to distribute
drugs nor attempted possession with intent to distribute drugs is
included in the guideline list. The commentary to § 4B1.2,
however, states that “‘controlled substance offense’ include[s]
the offenses of aiding and abetting, conspiring, and attempting
to commit such offenses.” Id., Application Note 1 (emphasis
added). Winstead argues that this commentary cannot be
squared with the guideline – and that neither of his two previous
drug crimes falls within the definition of “controlled substance
offense,” because each conviction was for mere attempt.

     Bearing in mind the enormous difference in Appellant’s
potential term of imprisonment if sentenced as a career criminal
(over ten years), it is hard to see how this issue should not have
appeared as a crucial one to effective counsel. After all, the
merits case against his client was formidable. But to make out
a claim of ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984), an appellant must show both
that the errors were serious – which should be obvious in this
case – and that there is, at least, a reasonable probability that the
result of the proceeding would have been different. Id. at 687;
see also U.S. v. Abney, 812 F.3d 1079, 1086-95 (D.C. Cir.
2016).

       We recognize that the Guidelines are only discretionary.
However, the Supreme Court “has made clear that the
Guidelines are to be the sentencing court’s ‘starting point and
. . . initial benchmark.’” Molina-Martinez v. United States, 136
S.Ct. 1338, 1345 (2016) (quoting Gall v. United States, 552 U.S.
38, 49 (2007)). “The Guidelines inform and instruct the district
court’s determination of an appropriate sentence. In the usual
case, then, the systemic function of the selected Guidelines
range will affect the sentence.” Id. at 1346.
                               16

    As we noted, counsel’s failure to raise this obvious legal
argument below means our standard of review is plain error, and
we would not reverse the district court’s decision on the
guidelines issue under that standard. But since we think it was
a mistake for counsel not to raise this issue – a serious mistake
– under Strickland we must further ask whether raising the
argument below would have changed the result. And that
necessarily leads us to ask whether it was a winning argument,
which, of course, goes to the merits of the issue.

     To be sure, we would normally remand serious claims of
ineffective assistance to the district judge to determine whether
effective counsel could have changed the result, as we are doing
with the pre-trial and trial issues. But this is an unusual case.
The textual issue is a purely legal question. And, as we have
explained, it was an obvious legal argument to make (at the
least, to preserve for appeal). If accepted, it would make an
enormous difference to Appellant’s sentence. And there was no
conceivable tactical reason (which we would generally be
reluctant to second-guess) for not making it. Indeed, in light of
the overwhelming evidence of guilt, it was the only serious
argument the defendant had in the entire case. There thus would
have been no reason to prioritize some other argument and, in
fact, defense counsel made no other serious argument.

     We therefore pass on to consider the merits of Appellant’s
claim not by the deferential plain error standard that would
ordinarily govern an issue not raised below, but rather de novo.
In other words, in order to determine whether counsel’s failure
to raise the textual issue was ineffective assistance of counsel –
since the textual issue itself is a pure question of law – we must
treat the issue as if it had been raised below.
                                17

                            *   *    *

     Turning to the merits, there is no question that as Appellant
points out, the commentary adds a crime, “attempted
distribution,” that is not included in the guideline. To be sure,
the Supreme Court in Stinson v. United States, 508 U.S. 36
(1993) held that the commentary should “be treated as an
agency’s interpretation of its own legislative rule.” 508 U.S. at
44-45 (citing Bowles v. Seminole Rock & Sand Co., 325 U.S.
410, 414 (1945)). Thus, under this Seminole Rock deference,
“Commentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” Id. at 38. If the
two are inconsistent, “the Sentencing Reform Act itself
commands compliance with the guideline.” Id. at 43 (citing 18
U.S.C. § 3553(a)(4), (b)).

     Appellant argues that they are indeed inconsistent. By
purporting to add attempted offenses to the clear textual
definition – rather than interpret or explain the ones already
there – he contends that the commentary in Application Note 1
exceeds its authority under Stinson. For support, he points to
our decision in United States v. Price, 990 F.2d 1367 (D.C. Cir.
1993), which reversed a career offender sentence in similar
circumstances because the commentary impermissibly purported
to expand the scope of a penalty to include conspiracy to violate
substantive drug provisions. He also notes that our decision in
United States v. Alexander, 331 F.3d 116 (D.C. Cir. 2003) –
which held that the term “serious drug offense” in the Armed
Criminal Career Act includes attempts – relied heavily on the
presence of the word “involving” in the statutory definition,
which has “expansive connotations,” id. at 131. Section 4B1.2,
by contrast, includes no such broad language. Finally, he calls
                                 18

our attention to the Supreme Court’s decision in James v. United
States, 550 U.S. 192 (2007), which held that the Armed
Criminal Career Act’s definition of “violent felony” did not
encompass attempted burglary simply by including the
completed offense of burglary. According to Winstead, the
analogy to James is direct: “‘Attempted distribution’ is not
‘distribution’ any more than ‘attempted burglary’ is ‘burglary.’”
Br. App. 38.

    In response, the government leans on the decisions of
several of our sister circuits, each of which defer to Application
Note 1 when applying § 4B1.2. See United States v. Lange, 862
F.3d 1290, 1294 (11th Cir. 2017); United States v. Nieves-
Borrero, 856 F.3d 5, 9 (1st Cir. 2017); United States v. Solomon,
592 F. App’x 359, 361 (6th Cir. 2014); United States v. Chavez,
660 F.3d 1215, 1228 (10th Cir. 2011); United States v.
Mendoza-Figueroa, 65 F.3d 691 (8th Cir. 1995) (en banc).

     We agree with Winstead. Section 4B1.2(b) presents a very
detailed “definition” of controlled substance offense that clearly
excludes inchoate offenses. Expressio unius est exclusio
alterius. Indeed, that venerable canon applies doubly here: the
Commission showed within § 4B1.2 itself that it knows how to
include attempted offenses when it intends to do so. See USSG
§ 4B1.2(a)(1) (defining a “crime of violence” as an offense that
“has as an element the use, attempted use, or threatened use of
physical force . . . .”).12


    12
        To be clear, our holding does not invalidate Application Note
1’s guidance with respect to whether a “crime of violence” includes
the offenses in that Note. We address only the scope of the definition
of “controlled substance offense.” We also note that given this
holding, we have no need to reach Winstead’s alternative argument
                                 19

     It might be argued that other federal laws do include
“attempted transfer” in defining drug distribution offenses – and
that we should read the guidelines in pari materia with these
other statutes in order to better discern their meaning. See, e.g.,
21 U.S.C. § 802(8), (11). However, in Burgess v. United States,
553 U.S. 122 (2008), the Supreme Court made clear that “[a]s
a rule, [a] definition which declares what a term ‘means’ . . .
excludes any meaning that is not stated,” id. at 130 (citation
omitted), and that the statute in that case “defines the precise
phrase used” in determining whether to apply a sentencing
enhancement. Id. at 129. Moreover, we interpret the specific
inclusion of attempt offenses elsewhere in federal drug law just
as we do the inclusion of attempt in § 4B1.2’s definition of
“crime of violence”: when enumerating a list of specific
offenses that qualify to support career offender status, the
drafters declined to include attempt despite its presence
elsewhere.

     In this respect, the government’s failure to even address
Winstead’s textual arguments, and its near-exclusive reliance on
cases from outside this circuit which generally do the same, is
reminiscent of United States v. Glover, 736 F.3d 509 (D.C. Cir.
2013), cited with approval in Dahda v. United States, 584 U.S.
___ (2018). There, we found plain error where sister circuit
decisions ran “contrary to the plain text of the statute,” id. at
513, and considered “the government’s reluctance to come to
grips with the language . . . quite revealing.” Id. at 516. So, too,
here.


that the D.C. statute under which he was convicted for attempted
distribution of marijuana fails categorical analysis under Descamps v.
United States, 133 S. Ct. 2276, 2283 (2013). Nor need we reach
Winstead’s other claims demanding resentencing.
                                  20

     This is all the more troubling given that the Sentencing
Commission wields the authority to dispense “significant,
legally binding prescriptions governing application of
governmental power against private individuals – indeed,
application of the ultimate governmental power, short of capital
punishment.” Mistretta v. U.S., 488 U.S. 361, 413 (1989)
(Scalia, J., dissenting). If the Commission wishes to expand the
definition of “controlled substance offenses” to include attempts,
it may seek to amend the language of the guidelines by
submitting the change for congressional review. See Stinson,
508 U.S. at 44. But surely Seminole Rock deference does not
extend so far as to allow it to invoke its general interpretive
authority via commentary – as it did following our decision in
Price13 – to impose such a massive impact on a defendant with
no grounding in the guidelines themselves.14 We therefore


     13
        In Price, we rejected the inclusion of conspiracy as a controlled
substance offense because the Commission stated in its commentary
that it had promulgated §§ 4B1.1 and 4B1.2 based on Congress’
command in 28 U.S.C. § 994(h). Since that statute included only
substantive offenses, but neither conspiracy nor attempt, we
invalidated Application Note 1’s inclusion of inchoate offenses as
controlled substance offenses. In response to that ruling, the
Commission modified its commentary to claim that Application Note
1 was based more broadly upon its understanding of its “general
statutory authority.” United States v. Seals, 130 F.3d 451, 463 (D.C.
Cir. 1998).
     14
        The dissent in Mendoza-Figueroa relied in part on the rule of
lenity, which favors a defendant if a criminal statute is ambiguous.
We do not think it necessary to rely on it because we do not believe
the guidelines are ambiguous. In any event, it is not obvious how the
rule of lenity is squared with Stinson’s description of the
commentary’s authority to interpret guidelines. We are inclined to
                                   21

remand the case for resentencing consistent with this opinion
and factual resolution of Winstead’s trial-related claims of
ineffective assistance of counsel.

                                                        So ordered.




believe that the rule of lenity still has some force.
