United States of America v. Raymond Poore

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 23, 2025*
Decided April 25, 2025
Before
DAVID F. HAMILTON, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 22-3154
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAYMOND POORE,
Defendant-Appellant.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 3:22CR00039-001
William M. Conley,
Judge.
O R D E R
In 2022, Raymond Poore pleaded guilty to possessing a firearm as a felon in
violation of 18 U.S.C. § 922(g)(1). Because of a prior state conviction for battery as a
party to the crime—an inchoate offense—the district court set his base offense level at
20 under U.S.S.G. § 2K2.1(a)(4)(A) based on a prior conviction for a “crime of violence”
as defined by U.S.S.G. § 4B1.2(a) in the 2021 Sentencing Guidelines. In Poore’s view,
* We granted the appellant’s unopposed motion to waive oral argument. Thus,
the appeal is submitted on the briefs and record. FED. R. A PP. P. 34(f).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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however, Application Note 1 of that Guideline—stating that a “crime of violence”
includes inchoate offenses—was wrong and not entitled to deference based on the
Supreme Court’s recent decision in Kisor v. Wilkie, 588 U.S. 558 (2019), which narrowed
the circumstances under which a court should defer to an agency’s interpretation of its
regulations. 588 U.S. at 574. The district court rejected Poore’s argument and sentenced
him to 42 months’ imprisonment. Poore appealed.
We stayed this appeal pending the outcome of United States v. White, 97 F.4th 532
(7th Cir. 2024), cert. denied, 145 S. Ct. 293 (2024), in which we ultimately rejected an
argument identical to Poore’s about the effect of Kisor. With the stay now lifted, Poore
argues that the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo,
603 U.S. 369 (2024), which was decided two months after White, calls that decision into
question. In Poore’s view, Loper Bright casts new doubt on our decision to defer to
Application Note 1. We disagree with this view and therefore affirm.
Background
In 2021, Poore was a passenger in a car in Madison, Wisconsin, that led police
officers on a high-speed chase. Poore, who was arrested after he and the driver fled the
car on foot, possessed a loaded handgun. In 2022, he pleaded guilty to possession of a
firearm by a felon. See 18 U.S.C. § 922(g)(1). (Poore had two prior felony convictions.)
A probation officer prepared a Presentence Investigation Report (PSR) before
sentencing. The officer concluded that Poore’s base offense level was 20 because one
prior conviction was for a “crime of violence.” See U.S.S.G. § 2K2.1(a)(4)(A). Specifically,
Poore had a state conviction for substantial battery as a party to the crime. The 2021
Guidelines defined a “crime of violence” in § 4B1.2(a), and Application Note 1 stated
that a “crime of violence” included “aiding and abetting, conspiring, and attempting to
commit such offenses.” See U.S.S.G. § 4B1.2 cmt. n.1. (The Sentencing Commission later
omitted this note and amended § 4B1.2 itself—non-retroactively—to include inchoate
offenses under its definitions of “crime of violence” and “controlled substance offense.”
See U.S.S.G. Amend. 822 (U.S. Sent’g Comm’n 2023).)
At sentencing, Poore argued that in 2021 the state inchoate offense was not a
crime of violence. In his view, the plain text of the Guideline did not refer to inchoate
offenses, and a contrary conclusion required improper deference to Application Note 1.
He asserted that reliance on the commentary was contrary to the Supreme Court’s
decision in Kisor, which held that courts should defer to an agency’s interpretation of its
own regulations only if “the regulation is genuinely ambiguous.” 588 U.S. at 574. Citing

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United States v. Adams, 934 F.3d 720 (7th Cir. 2019), the district court overruled the
objection; calculated a guidelines range of 57–71 months based on an offense level of 21
and a criminal history category of IV; and sentenced Poore to 42 months’ imprisonment.
Analysis
A. White Decided to Continue Applying Stinson after Kisor
Poore’s argument on appeal asks us to overrule White based on Loper Bright.
See C IR . R. 40(e). To understand the argument, we begin with the backdrop of White, in
which we considered whether the Supreme Court’s decision in Kisor disturbed Stinson
v. United States, 508 U.S. 36 (1993) (or our precedent applying it). See White, 97 F.4th at
535. In Stinson, the Supreme Court held that the Sentencing Commission’s explanatory
commentary “is authoritative unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that guideline.” 508 U.S. at 38. The
Court rejected an argument that the Commission’s commentary should receive Chevron
deference. Id. at 44. Instead, the Court concluded “that the commentary [should] be
treated as an agency’s interpretation of its own legislative rule,” which, provided that
the interpretation does not violate the Constitution or a federal statute, “must be given
‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.’”
Id. at 44–45 (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). The
upshot was that the Commission’s commentary is entitled to Seminole Rock deference,
now known as Auer deference after Auer v. Robbins, 519 U.S. 452 (1997). Since then, we
have repeatedly afforded Auer deference to Application Note 1, which defines the terms
“crime of violence” and “controlled substance offense” in the Guidelines.
See, e.g., United States v. Lomax, 51 F.4th 222, 229 (7th Cir. 2022) (concluding that “crime
of violence” includes inchoate offenses).
In 2019, the Supreme Court in Kisor was asked to overrule Seminole Rock and Auer
but ultimately declined to do so. See Kisor, 588 U.S. at 563–64. Instead, the Court
“cabined” the scope of agency deference, concluding that it does not apply unless the
court first finds that a regulation is genuinely ambiguous after exhausting the
traditional tools of construction. Id. at 563–64, 574–75. Further, the relevant agency’s
interpretation of the ambiguous regulation must be reasonable. Id. at 575–76. The Court
also instructed courts to “make an independent inquiry into whether the character and
context of the agency interpretation entitles it to controlling weight.” Id. at 576.
In White, we declined an invitation to overrule our case law—applying Stinson to
Application Note 1—based on Kisor. White, 97 F.4th at 535. In White’s view, Application

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Note 1 was not entitled to Auer deference because the Guideline’s text unambiguously
excluded inchoate offenses. Id. But we explained that “Kisor’s effect on Stinson is
unclear” and identified several reasons to decline reconsidering decisions in which we
had deferred to Application Note 1. Id. at 538. First, although the Supreme Court in
Stinson had analogized the Guidelines commentary to an agency’s interpretation of its
own legislative rules, it also cautioned that the analogy was not precise. Id. (citing
Stinson, 508 U.S. at 44). And, we explained, the Sentencing Commission is not an
executive agency but an independent commission within the judicial branch, so “its
statutory charge is unique in ways that affect the deference calculus.” Id. at 539
(collecting cases). Second, the Supreme Court in Kisor did not purport to overrule or
even modify Stinson, and the Court has instructed us “to resist invitations to find its
decisions overruled by implication.” Id. (citing Mallory v. Norfolk S. Ry. Co., 600 U.S. 122,
136 (2023)). Third, it made little sense for us to switch sides of an entrenched circuit split
about Application Note 1’s weight. Id.
B. After White, the Supreme Court overruled Chevron in Loper Bright
Two months after our decision in White, the Supreme Court issued its decision in
Loper Bright. Overruling Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837
(1984), the Court held that courts “may not defer to an agency interpretation of the law
simply because a statute is ambiguous.” Loper Bright, 603 U.S. at 413. Shortly after the
decision in Loper Bright, we reaffirmed that we would apply Stinson and defer to the
Sentencing Commission’s commentary. United States v. Ponle, 110 F.4th 958, 962 (7th Cir.
2024). In Ponle, we also distinguished the Supreme Court’s decision in Loper Bright
(overruling Chevron) from its decision in Kisor (declining to overrule Auer). Id. at 961 n.3.
C. Loper Bright Does Not Require Us to Reconsider White
Poore now asserts that White’s decision to continue applying Stinson (i.e.,
deferring to the Commission’s commentary) is inconsistent with Loper Bright’s
teachings. He does not contend that Loper Bright implicitly overruled Auer. Instead, he
insists that Loper Bright requires us to revisit the question of whether Kisor modified
Stinson. In his view, White’s answer—no—is incompatible with Kisor and Loper Bright.
In effect, Poore asks us to reconsider our decision in White, but he does not
provide a compelling reason to upset recent precedent. See White, 97 F.4th at 538. The
grounds for continuing to apply Stinson, which we explained in White, apply with equal
force here. First, Poore’s argument that the overruling of Chevron requires us to
reconsider our case law applying Auer deference rejects the rationale of Stinson. There

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the Court explained that analogizing Guidelines commentary to an agency’s
interpretation of its own legislative rules was imprecise. White, 97 F.4th at 538 (citing
Stinson, 508 U.S. at 44). Further, in deciding that the Guidelines commentary was
entitled to Auer deference, the Court explicitly rejected an argument that the
commentary should receive Chevron deference instead. See Stinson, 508 U.S. at 44. By
arguing that Loper Bright affects how we should read Kisor, Poore blurs this distinction
between Auer deference and Chevron deference.
Second, the Supreme Court in Loper Bright did not purport to overrule or even
modify Auer or Stinson nor to explain the effect of the decision (if any) on Kisor. And we
follow the Court’s instruction to resist finding its decisions overruled by implication.
See White, 97 F.4th at 539 (citing Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 136 (2023)).
We must follow a controlling Supreme Court decision even if it “appears to rest on
reasons rejected in some other line of decisions.” Agostini v. Felton, 521 U.S. 203, 237
(1997) (quoting Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989)).
Third, as in White, it makes little sense for us to switch sides of an entrenched
circuit split about Application Note 1’s authority. See White, 97 F.4th at 539. We have
cautioned that when a circuit split is closely balanced, “it is best to leave well enough
alone” and avoid switching sides. Buchmeier v. United States, 581 F.3d 561, 565–66
(7th Cir. 2009) (en banc). Because we have already twice declined to switch sides in the
closely divided circuit split, see White, 97 F.4th at 535, there is no compelling reason to
change course now. See Buchmeier, 581 F.3d at 565–66 (explaining why switching sides
in an entrenched circuit split is disfavored). Therefore, we continue to follow Stinson.
AFFIRMED

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